In an asset purchase the buyer's new company acquires the assets it wants and leaves most liabilities behind, so the lender gets a clean first lien and a borrower with no hidden history; the catch is that contracts, leases and licenses must be transferred one by one. In a stock purchase the company itself changes hands with everything in it, so contracts usually stay in place but unknown liabilities come too, and the lender relies more on diligence, indemnities and a pledge of the shares. Most lenders finance both; the form changes the conditions, rarely the answer.
- Borrower in an asset purchase
- Usually the buyer's new operating company, often under a holding company
- Borrower in a stock purchase
- The acquired company, the buyer's holding company, or both
- Liabilities
- Asset deals leave most with the seller; stock deals inherit all of them
- Contracts and licenses
- Asset deals need each one assigned; stock deals keep them unless a change-of-control clause applies
- Tax basis
- Asset deals usually give the buyer a stepped-up basis and larger deductions; stock deals usually do not
The two forms, in one paragraph each
In an asset purchase, the buyer forms a company, and that company buys the assets of the business: equipment, inventory, receivables, customer contracts, intellectual property, the trade name and goodwill, as the parties choose. The seller's legal entity stays with the seller, along with its cash, its debts and, as a rule, its liabilities. The buyer's company starts life owning a working business and owing only what it borrowed to buy it.
In a stock purchase (or a purchase of membership interests in an LLC), the buyer buys the owners' shares. The company itself does not change: the same legal entity, tax ID, contracts, bank accounts, permits and employees, and the same liabilities, known and unknown. Only the owner is new.
The form is usually settled in the letter of intent, for tax and practical reasons, but it reaches every part of the financing. Some deals sit between the two, such as a seller reorganizing its company before the sale so that the buyer purchases a new subsidiary, or a tax election that treats a share purchase as an asset purchase for tax. Tax advisers design those; the lender needs only the result: which entity borrows, what it owns and what it owes.
Side by side: what the lender sees
| Asset purchase | Stock purchase | |
|---|---|---|
| Borrower | The buyer's new operating company | The acquired company, the buyer's holding company, or both |
| Lender's collateral | A first lien on the assets acquired, filed against a new entity; the seller's lenders must still release their liens on the assets sold | A lien on the company's assets once existing liens are released at closing, plus a pledge of the shares bought |
| Liabilities | Mostly left with the seller, except those assumed or imposed by law | All of them come with the company, including ones nobody has found yet |
| Contracts, leases, licenses | Must be assigned; each counterparty or agency may need to consent | Stay in place, unless a change-of-control clause requires consent |
| Working capital at closing | Often none unless the deal transfers it: the seller may keep cash and receivables, so the buyer must fund it | Comes with the company, adjusted to an agreed peg |
| Tax basis | Usually stepped up to the price paid, creating deductions | Usually carried over from the seller |
| Lender's main diligence focus | Clean transfer of assets and contracts; funding day-one working capital | Hidden liabilities, tax exposure, lien releases, indemnities |
Collateral and the borrower
An asset purchase is the tidiest deal for a secured lender. The buyer's company is new, so a lien search against it shows nothing ahead of the lender. But a lien follows the collateral, not just the debtor. If the seller's entity has an equipment loan, a bank line or any other secured creditor with a filing that covers the assets being sold, that creditor keeps its claim on those assets after the sale unless it is paid and releases them. Lenders therefore search the seller as well, and require payoff letters and lien releases at closing in an asset deal just as in a stock deal. Unpaid tax liens get the same treatment, and some states hold a buyer responsible for a seller's unpaid sales tax unless a tax clearance is obtained.
In a stock purchase, the lender is lending to, or taking guarantees from, a company with a past. Every existing lien has to be paid off and released at closing, and the lender will want payoff letters for each line on the debt schedule. It also takes a pledge of the shares the buyer has bought, so that in a default it can take control of the company as a whole. Where a holding company buys the shares, lenders make the operating company a borrower or guarantor with a lien on its assets, because the operating company is where the cash, the assets and the contracts sit; see holding company structures for acquisitions.
Liabilities: what comes with the company
The strongest argument for an asset purchase is that the buyer chooses what it takes on. Unpaid sales taxes, a warranty claim on work done years ago, a wage-and-hour claim from former employees, a customer lawsuit that has not been filed yet: in a stock purchase, all of these are now the buyer's company's problems, and they are paid out of the same cash that services the loan.
Asset purchases do not make every liability disappear. Some follow the assets by law, such as certain tax and environmental obligations, and buyers who continue the same business under the same name can face successor-liability claims in some situations. But the exposure is much narrower.
Lenders in a stock purchase manage the risk through the purchase agreement and diligence. They look for representations and warranties from the seller, an indemnity backed by something real (an escrow, a holdback, representations and warranties insurance, or a seller note the buyer can set off against), and tax diligence alongside the quality of earnings review. How those protections sit beside the loan is covered in escrow and holdback in acquisition financing.
In a stock purchase, a lender is financing the company's history as well as its future. The diligence has to be deep enough to price both.
Contracts, leases and licenses that must transfer
The strongest argument for a stock purchase is that nothing has to move. In an asset purchase, the buyer's new company is not a party to any of the seller's contracts until each one is assigned to it. Many contracts cannot be assigned without the other party's consent, and some cannot be assigned at all. The items that most often decide the form of a deal:
- Premises leases. Landlords commonly require consent to assignment and may use it to renegotiate. Lenders want the leases for locations that matter to the business running at least as long as the loan.
- Customer contracts. Master service agreements, supply agreements and government contracts may need consent or novation. A key customer who uses the assignment to rebid the work is a real risk.
- Licenses and permits. Many professional and trade licenses, health-care provider enrollments and payer contracts, and some environmental permits are issued to an entity and cannot simply be assigned. A buyer may need to apply fresh, which the closing schedule has to allow for.
- Software, IP and distribution agreements. Licenses and exclusive territories often need consent, and some lapse on transfer.
- Vendor terms and credit history. A new company starts with no payment history; suppliers may ask for deposits or shorter terms at first.
Stock purchases are not free of this problem. Many contracts contain change-of-control clauses that treat a sale of the shares as an assignment, requiring the same consents. Lenders will ask for a list of material contracts and confirmation that each one either transfers or is not affected; see change-of-control consents.
Working capital and tax: two effects on cash flow
Asset purchases that leave the receivables with the seller produce a company that opens its doors with inventory and equipment but no cash and nothing to collect, and has to pay staff and suppliers before the first invoices are paid. Lenders see this immediately. The uses of funds should include working capital, or a revolver should be in place from closing. An asset-based line needs a borrowing base, and a new company with no receivables yet has little to borrow against at first; see how a borrowing base works and working capital at close. Where receivables and inventory transfer with the assets, asset-based lenders typically advance 80% to 90% of eligible receivables from day one.
Tax changes cash flow in the other direction. In an asset purchase, the buyer's basis in the assets is usually stepped up to the price paid. Equipment can be depreciated again, and the amount paid for goodwill can be amortized for tax over fifteen years. Those deductions reduce the tax the business pays, which leaves more cash for debt service in the early years. In a stock purchase the buyer usually inherits the seller's old, lower basis. Sellers generally prefer stock sales for their own tax reasons, and the price often reflects the trade.
How different lenders see the choice
Most lenders finance both forms. Their preferences show up in the conditions rather than in a yes or no.
- Banks lending on cash flow tend to like the clean collateral of an asset deal, and in a stock deal focus on lien releases, diligence findings and the indemnity.
- Private credit funds and unitranche lenders are generally indifferent to form. They lend at a holding company with guarantees and liens from every operating subsidiary, and rely on the quality of earnings, legal diligence and, in larger deals, representations and warranties insurance.
- Asset-based lenders care about the collateral itself: in a stock deal the existing receivables and inventory come with the company and can be borrowed against from day one, after a field exam; in an asset deal availability depends on what was bought.
- Junior lenders and sellers holding notes follow the senior lender's structure, but read the indemnity closely, because a claim that drains the company's cash reaches them before it reaches the owners.
For the buyer, the form matters less than size, earnings and equity, but it changes what goes in the file. Midas Partners's lender presentation and underwriting memo set out the deal form, the borrower structure and the liens to be released, so each lender sees them before it is asked to commit; the package is built in a day once the documents are in. See the package.
Common questions
- Do lenders prefer asset purchases?
- Secured lenders generally find asset purchases tidier: a new borrower, no prior liens and fewer inherited liabilities. But most lenders finance both forms, and a stock purchase is often the only practical way to keep licenses and contracts in place.
- Who is the borrower in a stock purchase?
- It can be the acquired company, the buyer's holding company, or both. Lenders bring the operating company onto the loan as a borrower or guarantor, because that is where the assets and cash flow are.
- What happens to the seller's existing loans?
- In an asset purchase they stay with the seller's entity, but any lien on the assets being sold must be released at closing. In a stock purchase they stay with the company, so they are normally paid off at closing out of the purchase price, with payoff letters for each one.
- Why does the buyer need extra working capital in an asset purchase?
- Because the seller sometimes keeps the cash and the receivables, so the buyer's new company starts with nothing to collect. Lenders expect working capital in the uses of funds or a revolver from closing.
- Does the deal form change how much I can borrow?
- Indirectly. Loan size depends on earnings and coverage. The tax deductions from a stepped-up basis in an asset purchase can improve cash flow for debt service, and inherited liabilities in a stock purchase can reduce what a lender is comfortable lending.