Section 363 Bankruptcy Sales: Key Considerations in the Auction Process, Private Sales, Due Diligence, and Operations
A live 90-minute CLE video webinar with interactive Q&A
This CLE course will discuss a Section 363 sale from beginning to end. Our speakers will examine, among other things, (1) the importance of pre-bankruptcy sale efforts; (2) bidding procedures, which establish a road map for the sale of a debtor's assets; (3) proper diligence procedures; and (4) the pros and cons of so-called "stalking-horse bidders," break-up fees, and expense reimbursements. Other topics our speakers will address include attacks on so-called "credit bidding," including efforts to cap a bidder's currency, potential sale structures to get auction proceeds to constituencies that the debtor and buyer need to approve the sale (e.g., a creditors committee), while "skipping" administrative claim holders, when the highest bid may not be the winning bid, and other important developments that have arisen in Section 363 sales.
Outline
- Section 363 requirements generally: when an auction vs. a private sale is appropriate
- The stalking-horse bid
- Break-up fee and expense reimbursement
- Super-priority administrative expense, carve-out
- The bankruptcy sale efforts--publication, actual notice to parties-in-interest
- Due diligence: reasonable period before bid, access to documents
- Successor liability
- Executory contracts and unexpired leases
- Attacks on credit bidding
- How to close the sale
- Operating the business post-sale
- The future of Section 363 sales
Benefits
The panel will review these and other key issues:
- What role does the stalking-horse bidder have in formulating the bidding process, and what are its primary concerns?
- What notice and due diligence rights should bidders want to see in the bidding procedures?
- What process should be followed for accepting and distributing qualified bids?
- How can a bidder ensure it has the flexibility to accept or reject executory contracts and unexpired leases upon closing of a 363 sale?
Faculty
Daniel J. (Dan) Garfield
Director
Fairfield and Woods
Mr. Garfield brings almost 30 years of experience practicing in cannabis, bankruptcy, and business transactions.... | Read More
Mr. Garfield brings almost 30 years of experience practicing in cannabis, bankruptcy, and business transactions. He is a leading cannabis industry attorney, with experience in all issues concerning cannabis and hemp. Mr. Garfield represents private and public companies, investors (including private equity funds and family offices), landlords, lenders, manufacturers, hemp farmers, CBD manufacturers, and a wide range of ancillary businesses. He also provides legal opinions and regulatory advice to industry participants. Mr. Garfield's bankruptcy, restructuring, and distressed asset practice includes representation of clients in bankruptcy, receivership, and all matter of distressed situations, including Chapter 11 debtors, creditors’ committees, secured and unsecured lenders, shareholders, trustees, receivers, landlords, and purchasers of distressed assets. He also litigates adversary proceedings in bankruptcy court, including fraudulent transfers and preferences. Mr. Garfield assists clients in creditors’ rights matters in and out of court, including debt restructurings, liquidations, workouts, foreclosures, and collecting judgments. He also represents contractors and subcontractors in enforcing mechanics’ liens.
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Ira L. Herman
Partner
Blank Rome
Mr. Herman concentrates his practice on distressed public debt issues, insolvency matters involving upstream and... | Read More
Mr. Herman concentrates his practice on distressed public debt issues, insolvency matters involving upstream and midstream oil and gas companies, and distressed M&A, in addition to traditional bankruptcy and insolvency matters. He regularly advises lenders on the management of bankruptcy risk in their transactions; indenture trustees regarding defaulted public debt issues; and lenders regarding restructuring and bankruptcy. Additionally, Mr. Herman provides services on the debtors’ side, counseling financially distressed entities and their management on restructuring challenges pertaining to corporate governance issues.
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Jaime Leggett
Attorney
Bast Amron
Mr. Leggett practices in the areas of bankruptcy and complex commercial litigation. His experience includes... | Read More
Mr. Leggett practices in the areas of bankruptcy and complex commercial litigation. His experience includes investigating and prosecuting director and officer liability claims; representing trustees, creditors, equity holders, and debtors in bankruptcy proceedings; federal and state court commercial litigation; and trials in federal, bankruptcy, and state courts nationwide.
CloseEarly Discount (through 06/27/25)