The judge overseeing Chrysler LLC’s bankruptcy entered an order on June 1, 2009 approving Chrysler’s motion seeking permission to sell substantially all of its assets to a new company. The procedure by which this sale was accomplished, and by which a similar sale in the GM bankruptcy will likely be accomplished, is known in the bankruptcy and finance worlds as a “363 Sale,” after the relevant provision of the U.S. Bankruptcy Code.
(For those well-versed in 363 Sales, see Stephen Sather’s thoughtful post about practical and ethical concerns with the Chrysler sale here. )
Section 363(b) of the Bankruptcy Code (11 U.S.C. § 363(b)) allows a company that files for bankruptcy (“the Debtor”) to sell some or all of its assets outside the ordinary course of its business, provided that the Debtor obtains court approval to do so. A 363 Sale can be a particularly attractive option for disposing of assets or business lines that may have long-tail contingent liabilities, such as potential claims for personal injuries or property damage that have not yet been asserted. In many instances, the purchaser who acquires the asset through a 363 Sale will take the asset free and clear of pre-existing liabilities, if the sale is structured correctly.
Companies outside of bankruptcy that have strong cash reserves or access to capital should look for opportunities to acquire new product lines, expand their footprint, or strengthen their intellectual property portfolio when reading headlines about troubled firms. 363 Sales are not just for multi-billion dollar bankruptcies; businesses of any size in any type of industry can sell all or part of themselves through a 363 Sale. There are no restrictions on the type of assets that can be sold through a 363 Sale. Inventory, equipment, patents, trademarks, customer lists, trade secrets, accounts receivable, and other rights to payment are all possibilities for a 363 Sale. There are limitations, however, on the sale of a Debtor’s assets in which a third party has an interest. If a third party has an interest in a particular asset, whether a security interest, lien, etc., then that particular asset may only be sold in a 363 Sale if the third party’s claim is satisfied from the proceeds, or if other criteria are met.
Generally, the purchaser at a 363 Sale acquires only the Debtor’s rights in the asset. For example, if the Debtor was a co-owner of an asset, then the purchaser would only obtain the Debtor’s co-ownership interest. In some instances, however, a 363 Sale can deliver outright ownership of an asset to the purchaser even when the Debtor has only a partial ownership interest in the particular asset. This is often an appealing solution to resolve a dispute where a joint venture sours and the partners cannot agree on price or terms to move on. The purchaser can acquire the entire asset—including an entire operating business or just a part of one—outright instead of merely owning the Debtor’s partial ownership interest in the asset.