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Motion to Sell - categories of sale

 

Sale categories

Public sale at auction - e.g. Auction to be held at 315 E 1st Street on 9/1/12 at 10.00am.

REQUIRED INFORMATION IN THE MOTION:

  • The property to be sold.
  • The date, time, and place of the sale, if known, or instructions on how that information can be obtained.
  • If an auctioneer is used, the name of the auctioneer.
  • If an auctioneer is used, the presence on the docket of a separate application to employ that auctioneer.
  • Individual cases only: The amount of a claimed exemption in the property.
  • If any bid procedures are going to be used - such as a buyer’s premium - that were not approved as part of the application to employ the auctioneer, a separate Motion for Bid Procedures must be filed. 

Private sale, where specific buyer identified and made known in the motion - e.g. To sell to John Smith for $100,000.

REQUIRED INFORMATION IN THE MOTION:

  • The property to be sold.
  • The sales price and an estimate of the net proceeds to be received by the estate (including a deduction for any exemption)
  • The name of the purchaser.
  • If the seller used a broker or agent, presence on the docket of a separate application to employ that agent.
  • A brief summary of all material contingencies to the sale, together with a copy of the agreement, if available.
  • A description of the manner in which the property was marketed for sale, and a description of any other offers to purchase.
  • A description of any known relationships between the Prospective Purchaser and its insiders and the Debtor and its insiders or the trustee.
  • A disclosure if the property to be sold contains personally identifiable information and, if so, the measures that will be taken to comply with 11 U.S.C. §363(b)(1).

ADDITIONAL REQUIREMENTS IN CHAPTER 11 CASES:
Any Motion to Sell in a Chapter 11 case that proposes the sale of all or substantially all of the Debtor’s assets must also include:

  • If schedules have not been filed by the Debtor, a summary of the Debtor’s debt structure, including the amount of the Debtor’s secured debt, priority claims, and general unsecured claims.
  • A statement setting forth any relationship or connection the Debtor (including its insiders) will have with the Prospective Purchaser after the consummation of the sale, assuming it is approved.
  • If a creditors’ committee, or its equivalent, existed pre-petition, the identity of the members of the committee and the companies with which they are affiliated and the identity of any counsel.

Sale with prospective purchaser but other bids considered Chapter 11 (usually) debtor selling itself as a going concern to an interested party, but might end up selling to someone else, paying the original buyer something to cover their hard work in doing the research on the business.

A credit bid is considered to come under this category.

REQUIRED INFORMATION IN THE MOTION:

  • The property to be sold.
  • The sales price and an estimate of the net proceeds to be received by the estate (including a deduction for any exemption)
  • The name of the purchaser.
  • If the seller used a broker or agent, presence on the docket of a separate application to employ that agent.
  • A brief summary of all material contingencies to the sale, together with a copy of the agreement, if available.
  • A description of the manner in which the property was marketed for sale, and a description of any other offers to purchase.
  • A description of any known relationships between the Prospective Purchaser and its insiders and the Debtor and its insiders or the trustee.
  • A disclosure if the property to be sold contains personally identifiable information and, if so, the measures that will be taken to comply with 11 U.S.C. §363(b)(1).
  • Any request for the approval of a topping fee or break-up fee provision must be supported by a statement of the conditions under which the topping fee or break-up fee would be payable and the factual basis on which the seller determined the provision was reasonable.  The request shall also disclose the identities of any other entity that expressed to the movant an interest in the purchase of all or a material portion of the assets to be sold within ninety (90) days prior to the filing of the sale motion, the offers made by them (if any), and the nature of the offer.
  • If any bid procedures are going to be used - such as a buyer’s premium - that were not approved as part of the application to employ the auctioneer, a separate Motion for Bid Procedures must be filed.

ADDITIONAL REQUIREMENTS IN CHAPTER 11 CASES:
Any Motion to Sell in a Chapter 11 case that proposes the sale of all or substantially all of the Debtor’s assets must also include:

  • If schedules have not been filed by the Debtor, a summary of the Debtor’s debt structure, including the amount of the Debtor’s secured debt, priority claims, and general unsecured claims.
  • A statement setting forth any relationship or connection the Debtor (including its insiders) will have with the Prospective Purchaser after the consummation of the sale, assuming it is approved.
  • If a creditors’ committee, or its equivalent, existed pre-petition, the identity of the members of the committee and the companies with which they are affiliated and the identity of any counsel.