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§ 363 Sales

Maja Zerjal Fink, a partner with Clifford Chance US LLP, discusses the mechanics and advantages of asset sales in chapter 11 cases. She explains that asset sales can help distressed companies raise capital, divest less profitable assets or preserve business operations. Fink highlights the benefits of § 363 sales, including speed and the ability to sell assets free and clear of liens, but notes such potential drawbacks as litigation risks and the need for creditor approval. She also covers the process of a § 363 sale, including marketing, bidding procedures and stalking-horse bidders. Fink emphasizes that while a § 363 sale can be efficient, it does not necessarily resolve the bankruptcy case, which may require further restructuring through a chapter 11 plan.

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Keywords:

asset sales, chapter 11, bankruptcy process, judicial oversight, private sale, public sale, creditors' rights, § 363 sale, free and clear, executory contracts, bidding procedures, stalking horse, credit bid, sale approval, bankruptcy exit

Duration:

28 minutes 07 seconds

Maja Zerjal Fink is a partner with Clifford Chance US LLP in New York, where her practice focuses on all aspects of corporate reorganizations, distressed situations and bankruptcy and insolvency proceedings in the U.S. and across the globe. Her experience includes advising private-equity sponsors, debtors, foreign debtors and representatives, lenders, official creditor committees, creditors and equityholders in bankruptcy proceedings and in-court and out-of-court restructurings. Ms. Zerjal Fink was honored as an ABI 40 Under 40 in 2020 and has been recognized by Law360 (2020), Super Lawyers (2020) and The Legal 500 (2019) as a Rising Star, and she was inducted in the International Insolvency Institute’s NextGen Program in 2020. She has guest-lectured at Harvard Law School, the University of Michigan Law School and the University of Pennsylvania Carey Law School, and she writes extensively on restructuring topics, including in Bloomberg Law and Debtwire. She also is a member of the Editorial Board of International Corporate Rescue, a corporate restructuring and insolvency journal, and serves as the co-secretary and board member of the International Insolvency Institute’s Model Laws@Work Thought Leadership Project. Ms. Zerjal Fink received her B.A. from the University of Ljubljana in Slovenia, where she was first in class, and her LL.M. from Harvard Law School, where she was Dean’s Scholar in Corporate Reorganization and senior editor of the Harvard Business Law Review.

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