Indubitable Equivalent

“Something that is supposedly undoubtedly equal in value to what is taken away. A “catch all” form of adequate protection under the Code requiring that a debtor provide a creditor with something having a value that is the “indubitable equivalent” of the amount of diminution in value of the creditor’s collateral resulting from its use in the bankruptcy case. It is also one means of providing “fair and equitable” treatment to a secured creditor under a Chapter 11 plan, i.e., by providing the creditor with the “indubitable equivalent” of its claim. In a typical 98 Chapter 11 plan involving the claim of a lender the debtor most often attempts to satisfy the lender’s right to “fair and equitable treatment” by providing the lender with periodic payments sufficient to pay the secured claim in full, with interest, while the lender retains its lien under the plan. A second option for the debtor to satisfy the fair and equitable test is for the plan to provide for a sale of the lender’s collateral, free and clear of the lender’s lien, with the lien to attach to the sale proceeds. The third option— providing the lender with the “indubitable equivalent” of its claim—is less well defined than the first two options.

The courts have only outlined the contours of the term in decisions accepting and rejecting various plan treatments offered by proponents as providing a lender the indubitable equivalent of its secured claim. For example:

  • A lender does not receive the indubitable equivalent of its claim if the debtor substitutes a letter of credit for the lender’s collateral, but the letter of credit is subject to ambiguities in the letter of credit accommodations.
  • There is no indubitable equivalence where a debtor substitutes equity securities for the lender’s collateral if the value of the securities is questionable.
  • If the debtor is to transfer property to the lender as the indubitable equivalent of the lender’s secured claim, the property must produce cash flow or be capable of being sold within a reasonable time so that the lender can realize cash.

The U.S. Third Circuit of Appeals in Philadelphia Newspapers, LLC, 599 F.3d 298 (3rd Cir. 2010), held that, so long as the debtor’s reorganization plan 99 provides a secured creditor with the “indubitable equivalent” of its secured claim, a secured creditor can be barred from credit bidding at an auction sale under a plan. There currently is a split in the U.S. Court of Appeal Circuits that have considered the issue. The Supreme Court will presumably resolve this split in connection with an appeal pending (as of the date of publication) in the Rad LAX Gateway Hotel, LLC, et al. v. Amalgamated Bank case.”

This definition is courtesy of our friends at Polsinelli who publish the Devil’s Dictionary of Bankruptcy Terms. You can access the Devil’s Dictionary here.

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