Asset Sales

Selling financially distressed hospitals, nursing homes, senior living centers and other health care providers, including acute care hospitals, critical-access hospitals and continuing care retirement centers, presents many unique challenges not found in most “typical” bankruptcy cases. Identifying these important differences, and executing plans to deal with them, can make the difference between preserving the enterprise and being forced to liquidate. Legal, financial, political and regulatory traps abound. This panel will provide an overview of these considerations and highlight how to address these matters in relation to their particular significance within the Midwest region.

Section 363 sales are frequently invoked in an effort to render the debt side of a balance sheet irrelevant. Buyers and sellers generally spend much of their time negotiating pre-sale issues, such as bidding procedures, “break-up fees” and other bidding protections, perhaps relying on the “free and clear” language of § 363(f) to absolve the buyer of any liabilities associated with the assets. Buyers at § 363 sales typically assume that they take the assets free and clear of all liens and claims. Lending credence to the old adage “caveat emptor,” this program will focus on the issues that may prevent assets sold under § 363 from being cleansed of all liens, claims and interests, and will examine the limits of “free and clear” sales under § 363 of the Bankruptcy Code. The panel will identify those claims that may come back and haunt a buyer, no matter what a § 363 sale order provides, paying particular attention to cases where holders of claims that were unknown or perhaps unknowable at the time of a sale come in post-closing and successfully assert liability against a purchaser.

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Potential buyers often have significant leverage over distressed sellers of assets and are able to influence or dictate the nature of the sale process. This panel will examine the considerations that a potential buyer of a distressed company should make when it has the opportunity to choose the appropriate process and venue for pursuing such acquisition. We will outline the pros and cons of Article 9 sales (both public and private), receivership sales, § 363 sales and “loan to own” strategies, including with respect to issues related to successor liability, funding considerations, operational concerns, timing, legal risk and deal certainty.

The panel will discuss and contrast (and will invite the workshop attendees to discuss) the various options for ending chapter 11 cases after the debtor’s assets have been sold, including plans of liquidation, liquidation and litigation trusts, dismissals, structured dismissals and conversion. Issues will include things to consider when planning for the debtor’s wind-down staffing and budget. The panel will also discuss the rest of the story from the perspective of the § 363 purchaser, focusing on recent developments in successor liability.

The workshop features Chief Bankruptcy Judges Dennis R. Dow (W.D. Mo.), C. Ray Mullins (N.D. Ga.), Brendan Linehan Shannon (D. Del.), Cecilia G. Morris (S.D.N.Y), and Barbara J. Houser (N.D. Tex.), who will discuss recent circuit splits and hot topics, including the application of the absolute priority rule in individual chapter 11 cases, artificial impairment, structured dismissals, intellectual property licenses, equitable disallowance and § 502(d) issues, and more.

The workshop features Chief Bankruptcy Judges Dennis R. Dow (W.D. Mo.), C. Ray Mullins (N.D. Ga.), Brendan Linehan Shannon (D. Del.), Cecilia G. Morris (S.D.N.Y), and Barbara J. Houser (N.D. Tex.), who will discuss recent circuit splits and hot topics, including the application of the absolute priority rule in individual chapter 11 cases, artificial impairment, structured dismissals, intellectual property licenses, equitable disallowance and § 502(d) issues, and more.

This panel will discuss common issues that arise in a § 363 sale, including timing issues, typical marketing programs (or conversely, no-shop clauses), bid procedures, break-up fees and bid-protection provisions. The panel might also touch on critical-vendor provisions, employee incentive programs, claw-back and true-up provisions, and successor liability clauses, as well as the applicability of the various subsections in § 363(f).