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Distress investors often prefer to acquire a troubled business through an asset purchase styled as a sale of all or substantially all of the company’s business under §363 of the Bankruptcy Code “free and clear” of all liabilities, liens, claims and interests against the seller, usually including any legacy obligations. In fact, unfunded pension and retiree health obligations are a frequent driver of the so-called 363 sales. But as demonstrated by the recent ruling against Japanese firm Asahi Tec1 following the 363 sale of its U.S. subsidiary Metaldyne, the Pension Benefit Guaranty Corporation (PBGC) will assert unfunded pension liability against members of the bankrupt seller’s control group, even if they are domiciled offshore.

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