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§ 363 Sale Issues

Level: Advanced
Runtime: 77 minutes
Recorded Date: May 22, 2019
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  • Outline on the 365/363 Issue
  • Loan-to-Own Strategy and Section 363
  • RSA/DIP Financing - Debt to Equity Conversions
  • Indenture Trustee Credit Bid & Liquidation
  • Section 363 Sale Issues - Bankruptcy Auction
  • Current Case Developments Relating to GM Notice Issue
  • Bankruptcy Sales - Do they Clean up Environmental Liabilities?
Runtime: 1 hour and 14 minutes
Recorded: May 22, 2019


Dive into Section 363 sales issues, including whether there are limits to “free and clear”; the GM conflict between Sections 365(h) and 363(f) (“lease-stripping”); sales free and clear of leasehold interests, restrictive covenants and override royalties; being free and clear of successorships in CBAs; selling free and clear of environmental liabilities (La Paloma, Exide); and loan-to-own strategies.

This program was recorded as part of ABI's New York City Bankruptcy Conference on May 22nd, 2019.

Provided By

American Bankruptcy Institute
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Hon. Louis A. Scarcella

U.S. Bankruptcy Court for the Eastern District of New York

Louis A. Scarcella is a judge for the United States bankruptcy court, Eastern District of New York. He was appointed to the court on May 16, 2014, and his term will expire on May 15, 2028.

Prior to joining the court, Scarcella was an attorney for the law firm of Farrell Fritz, P.C.

Scarcella earned his B.A. from Providence College and his J.D. from Hofstra University.

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Gerard DiConza

Archer Law

Gerard DiConza is a partner in the Bankruptcy, Restructuring and Insolvency Litigation Group at Archer. Gerry represents debtors, trustees, foreign liquidators, distressed buyers in section 363 sales, chapter 11 plan fiduciaries and creditors, both in and out of court. Gerry has over 25 years of experience in chapter 11 restructurings and representing estate fiduciaries in complex bankruptcy litigation.

Gerry represents trustees, plan administrators, foreign liquidators and other fiduciaries in litigation involving issues of fraud, alter ego, breach of fiduciary duties, bad faith, fraudulent and preferential transfers. Gerry also advises investment bankers, financial advisors and other professionals in connection with retention and payment issues under the Bankruptcy Code.

Gerry received a B.B.A. in 1991 from Hofstra University and a J.D. with honors in 1994 from St. John’s University School of Law, where he was Editor-in-Chief of the American Bankruptcy Institute Law Review. Gerry received an LL.M. in corporate law from New York University School of Law in 1998. After graduating law school, Gerry served as law clerk to the Honorable Jeremiah E. Berk, United States Bankruptcy Judge for the Southern District of New York. Gerry frequently speaks on bankruptcy topics and is currently a lecturer on restructurings at the New York University School of Professional Studies.

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Dion W. Hayes

McGuireWoods LLP

Dion serves as the firm's Deputy Managing Partner for Litigation and formerly served as the Chair of the Restructuring and Insolvency Department. Since 1992, he has focused his practice on insolvency law and financial restructuring, including bankruptcy, out-of-court workouts, distressed asset acquisitions and recapitalizations, and related litigation.

He has represented debtors, official and unofficial committees of creditors or equity holders, senior lenders and administrative agents, Section 363 purchasers, post-confirmation plan administrators, liquidating trustees, and bond holders, in bankruptcy courts and other courts throughout the United States. He has represented clients with respect to derivative terminations in insolvency cases, as litigation targets in large Ponzi scheme cases, and in cross-border insolvency cases. He has led recent restructuring engagements in the following industries - energy, coal and metals mining, semiconductor, print media, health care, and hospitality. He has recently appeared in bankruptcy courts and other federal courts in Delaware, Florida, New York, Texas, and Virginia.

As noted in Chambers USA, "Dion Hayes has a national bankruptcy practice. He is experienced in insolvencies, restructurings, workouts and distressed sales for all bankruptcy parties. He is held in high esteem by clients and peers for his work, with one source stating: 'He very effectively balances a commercial mindset with a keen understanding of legal risk to help us craft our strategies. He is also very effective in the courtroom as an advocate.' " Others commended Dion as “a strong advocate for his clients,” “experienced, smart, respectful, and very creative,” and “well versed at handling a full suite of restructuring and insolvency matters in bankruptcy and other federal courts.”

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Neil Gupta, CFA

SSG Capital Advisors, LLC.

Neil Gupta is a Director at SSG Capital Advisors. Neil works with investment banking clients on a wide range of transactions, including mergers and acquisitions, divestitures, recapitalizations and private placements of both senior and subordinated debt and equity. His responsibilities include buyer and investor relationship management, strategic advisory and overall management of the deal process.

Prior to joining SSG, he advised the U.S. Treasury on its investment in the Troubled Asset Relief Program (TARP) as a research analyst at Piedmont Investment Advisors. He also worked as a consulting actuary in the group benefits and health care practice at Watson Wyatt Worldwide.

Past client engagements include publicly traded, privately held, private equity sponsored and family owned businesses across a broad range of industries. Neil is a CFA Charterholder and holds a Certification in Distressed Business Valuation (CDBV). He is a member of the American Bankruptcy Institute, the Association for Corporate Growth and the Turnaround Management Association. He also serves on the serves on the Board of Directors of the Philadelphia chapter of the TMA, the Board of Directors for the Consumer Bankruptcy Assistance Project and the ACG New York Forward Committee.

Neil received The M&A Advisor’s 8th Annual Emerging Leaders Award in 2017

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Frank A. Oswald

Togut, Segal & Segal LLP

Mr. Oswald is a partner in Togut, Segal & Segal LLP, which he joined in 1986 following internships with the late Hon. Conrad B. Duberstein, Chief Bankruptcy Judge, and the Hon. Cecilia Goetz, Bankruptcy Judge (retired) in the Bankruptcy Court for the Eastern District of New York. For more than 30 years Mr. Oswald has focused his practice exclusively on bankruptcy, out-of-court restructurings and creditors' rights matters and has represented clients in all facets of bankruptcy cases as well as insolvency issues in business transactions.

Mr. Oswald has represented Chapter 11 debtors, bankruptcy trustees, creditors' committees, secured and unsecured creditors, shareholders, distressed investors, defendants in avoidance actions, mediators, plan administrators, as well as landlords and tenants in bankruptcy cases, and entities seeking to acquire assets out of bankruptcy.

Mr. Oswald has been named a New York Super Lawyer every year since 2010. He is also a member of the Board of the Turnaround Management Association (NY Chapter); a member of the ABI's Committee on Healthcare Law; and a ranked lawyer in Chambers USA.

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