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§ 363 Sales - Representing the Buyer - Part 4
Part 4 - The discussion focused on bidding procedures and the formal public auction process for bankruptcy assets. Key points included minimum overbids, where competing bids must exceed the previous bid by a specified amount, and the breakup fee, which must be included in the first competing bid. Bid deadlines and good faith deposits were also highlighted, with deposits often being 10-15% of the purchase price. The court's review of bidding procedures was discussed, with standards ranging from business judgment to administrative expense tests. The auction process involves time limits and prohibiting changes to the asset pool. The asset purchase agreement should include provisions for acquiring preference claims, breakup fee payment conditions, cure costs, and defining assumed and excluded liabilities.
Duration:
24 minutes 55 seconds
Samuel S. Kohn is a partner in the New York office of Dorsey & Whitney LLP and practices in the
area of business reorganizations, including complex chapter 11 cases and out-of-court restructurings.
He represents large corporate debtors, creditors’ committees, secured lenders, distressed-asset-acquirers,
investment funds and banks. His experience spans a broad range of industries, including airlines, mu-
nicipalities, health care, retail, real estate, food, financial services, energy, telecommunications, enter-
tainment, manufacturing and shipping. Mr. Kohn has been involved in virtually every major municipal
restructuring in recent memory, both in and out of court, including the chapter 9 cases of Detroit and
Jefferson County, Ala. In addition, he has represented major creditors in out-of-court restructurings of
municipalities, including municipal debt issued by Harrisburg, Pa., Scranton, Pa., Atlantic City, N.J.,
and Hartford, Conn. Mr. Kohn has authored numerous articles and is a frequent panelist on issues relat-
ing to municipal restructurings. Prior to becoming a lawyer, he was a Certified Public Accountant in the
State of New York and founded and managed his own accounting firm. Mr. Kohn received his B.A. from
City University of New York, Queens College and his J.D. cum laude from Brooklyn Law School.
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