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March 25, 2009 7:23 PM

Lucky 363: Buying Out of Bankruptcy

Posted by Brian Baxter

UPDATE: Mar. 27, 10:15 a.m. Additional information for Arent Fox and Kramer Levin has been added to the BearingPoint section of this post.

With insufficient liquidity in the market causing debtor-in-possession to become increasingly scarce, firms are flocking to advise clients on the "new M&A"--Section 363 sales and liquidations.

Companies like BearingPoing, The Greenbrier Hotel, and Magna Entertainment are selling off assets in order to generate the financing necessary to operate in Chapter 11.

"[Section 363s] are a capital market driven phenomenon, there's less DIP financing to stay in the ordinary course of operations and support a standalone plan," says Marc Abrams, chair of the business reorganization and bankruptcy practice group at Willkie Farr & Gallagher. "And there are equally reduced levels of exit financing that would permit a company, once it comes up with a standalone plan, to emerge from bankruptcy."

Abrams says that most distressed companies file for bankruptcy because they lack liquidity, therefore a massive contraction in those businesses is often required to scare up cash (check those seat cushions) to survive. That contraction itself leads to some assets being sold and others retained.

"Sometimes you don't have enough cash overall to support all of [a company's] assets in the current configuration," says Abrams, noting that his firm is doing a lot of Section 363 transactional work. "It's the new M&A!"

Hey, it's got to come from somewhere.

Of course, Abrams notes that none of this explains where the financing is coming from to acquire assets out of bankruptcy. We'll leave that topic for another day.

Here are some Section 363 deals--both completed and proposed--that we noticed:

BearingPoint

The McLean, Va.-based IT and management consulting company filed for bankruptcy in February, retaining Weil, Gotshal & Manges partner Alfredo Perez as Chapter 11 counsel and Davis Polk & Wardwell as special counsel.

BearingPoint announced on Monday that it had agreed to sell its North American public services unit to New York-based Deloitte for $350 million in cash and the assumption of certain BearingPoint liabilities.

The company also agreed to sell its North American commercial and financial services unit to PricewaterhouseCoopers for $25 million and its Japanese consulting practice to a PwC affiliate, Tokyo-based PwC Advisory Co., Ltd. The sales represent the bulk of BearingPoint's business.

Davis Polk capital markets partner Jeffrey Small, M&A partners John Bick and Nancy Sanborn, finance partner Theodore Paradise, IP partner Frank Azzopardi, employee benefits partner Edmond FitzGerald, tax partner Kathleen Ferrell, and associates H. Oliver Smith, Alexander Macleod, Mark Holloway, Shane Tintle, Christopher Kodama, Mork Murdock, Lindsey Finch, Hiroshi Sugiyama, Matthew Bacal, Ron Aixen, and Matthew Kohley are advising BearingPoint on its divestitures.

Deloitte turned to Kramer Levin Naftalis & Frankel corporate partner Thomas Molner in New York for M&A advice. Government contracts counsel--U.S. government agencies account for about 30 percent of BearingPoint's business--was provided by Arent Fox's William Goodrich.

BearingPoint was spun off from global accounting firm KPMG in 2001.

Greenbrier Hotel Corporation

Last week White Sulphur Springs, W.Va.-based Greenbrier Hotel Corporation, best known for the Cold War-era bunker built beneath its centerpiece property The Greenbrier, filed for Chapter 11 protection in Richmond.

Once the domain of presidents and playboys, the 231-year-old Greenbrier became the latest resort to fall victim to the recession. (Sedona, Ariz.-based ILX Resorts filed for bankruptcy three weeks ago.)

Jacksonville-based railroad conglomerate CSX, which has owned the national landmark since 1910, is keeping the hotel afloat in the near-term with a $19 million DIP loan.

But Greenbrier hopes to survive by orchestrating a sale to hotelier Marriott International by the end of the year, a proposal it made public through an asset purchase agreement filed with the bankruptcy court.

McGuireWoods bankruptcy partners Dion Hayes and Patrick Hayden are advising Greenbrier, which has also turned to Dinsmore & Shohl for special labor counsel and Huddleston Bolen as special West Virginia counsel.

Magna Entertainment

A leading player on the North American horseracing circuit through its ownership of racetracks like Santa Anita Park, Gulfstream Park, and Pimlico Race Course, Magna Entertainment couldn't outrun its creditors and filed for bankruptcy in early March.

A subsidiary of Aurora, Ontario-based real estate company MI Developments--itself a spin-off of auto parts manufacturer Magna International--Magna Entertainment tapped Weil, Gotshal to serve as its bankruptcy counsel and Delaware's Richards, Layton & Finger as local counsel. (Among Magna Entertainment's many creditors is noted horse owner and trainer Bob Baffert, who court records show is owed $204,617.)

Now Magna is seeking to have a bankruptcy judge approve its request to auction off its Pimlico and Laurel Park racetrack holdings as a means of raising capital to operate in Chapter 11 and pay off creditors.

The Maryland attorney general's office announced that the state had retained Venable to help advise on the potential sale of Pimlico, home of the Preakness Stakes, as well as the $190,000 in taxes owed by Magna Entertainment.

Magna Entertainment's parent, MI Developments, is expected to bid on properties put up by its subsidiary in bankruptcy. Baltimore Orioles owner and famous trial lawyer Peter Angelos has also expressed interest in acquiring the rights to the Preakness Stakes from Magna Entertainment.

Kramer Levin corporate restructuring cochair Kenneth Eckstein and bankruptcy partner P. Bradley O'Neill are representing Magna Entertainment's creditors committee.

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