JCPNQ Stay WILL BE Approved Due Following - Sub-Ros Plan MUST NOT Be Approved
1. “A sale, use, or lease of property under § 363(b) is not per se prohibited even though it purports to sell all, or virtually all, of the property of the estate, but such sales (or proposed sales of the crown jewel assets of the estate) are subject to special scrutiny.15. The Debtors’ failure to demonstrate that the Transactions do not violate Fifth Circuit law as an invalid sub rosa plan
16. Under clear Fifth Circuit precedent, such reasons are insufficient to justify a crown jewel sale such as was approved by the Sale Order.
17. Business judgment failures include, but are not limited to:
• The Debtors failed to ascertain the value of their enterprise or any significant assets. The Debtors failed to consider the impact of the sale upon creditor recoveries and did not evaluate whether alternative outcomes would produce greater recoveries.
• The record establishes that interference and manipulation from at least one member of the DIP Lender group tainted the marketing process and chilled participation.
• The DIP Lenders’ use of its credit bid is contrary to public interests – used to depress recoveries to the Debtors’ estate and capture a windfall for the DIP Lenders.
18. However, not only is the AHEC likely to succeed, but the issues in this appeal involve serious legal questions regarding approval of sub rosa plans that have far-reaching effects of public concern regarding the strict mechanics of the statutory scheme imposed by the Bankruptcy Code, which was specifically designed to protect the rights of creditors and other parties in interest.
