Thomas Edison famously said that “opportunity is missed by most people because it is dressed in overalls and looks like work.” Consistent with Edison’s musings, companies in an acquisition mode often overlook opportunities that arise in the bankruptcy arena because they lack knowledge of the system and think bankruptcy is an unruly beast dressed in extra-large overalls. For companies seeking to acquire going concern businesses, real estate assets, liquidated equipment and rolling stock, or distressed debt, however, bankruptcy purchase opportunities are plentiful, usually at below market prices with potential high margin rewards. Chapter 11 creates a buyer-friendly market for asset sales because (i) assets can be sold free and clear of liens, claims and encumbrances; (ii) going concern value can be preserved during the sale process; (iii) sales can proceed on an expedited basis without the kind of full marketing efforts of a solvent owner; and (iv) initial bidders can obtain protections such as break-up fees and expense reimbursement to protect them from being overbid. Opportunistic companies can improve their market share by acquiring the business or strategic assets of a failing competitor, or simply add a new line of business to their enterprise, by purchasing through a bankruptcy sale. Over the last five years, Maryland bankruptcy courts have overseen the disposition of assets ranging from residential real estate lots, shopping centers, apartment complexes, banks, loan portfolios and warehouses, to turn-key retail and wholesale businesses, manufacturers, nursing homes and service companies. Interested parties can also purchase the debt of a bankrupt company in a “loan to own” strategy, or invest in a reorganization plan and obtain the equity in a reorganized business. So remember, there is usually opportunity behind every perceived difficulty, and the bankruptcy market may be your next big one.
As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.