Share This Info:  

Structuring Owner Carry Notes When Selling A Business


Structuring Owner Carry Notes When Selling A BusinessDue to the current state of the Credit Markets and Bank Financing, Seller financing is more important then ever in facilitating the actual close of escrow in a Business Sale. Everyone is aware of the difficulties in procuring financing on small businesses these days. Everything must be perfect. At one point a few years ago I think I could have gotten my family dog a loan. Today worthy buyers are still getting rejected. The bail out has not reached Main Street.

Therefore Sellers need to structure their notes properly to secure themselves as safely as possible. There are several factors to consider when carrying a Note. First of all the Seller needs to be realistic in terms of what the business can support in form of a monthly payment. No one knows this better then the Owner who has been operating the subject business. If the business has a monthly adjusted net income or owner benefit of $5,000.00, you can not receive a $5,000.00 monthly payment. The Buyer will expect the business profits to make the payment and leave him some money too. Don't set your Buyer up for failure.

Now to make the Sellers note as "tight as possible", the following terms should be incorporated into the note:

Late Fee: Typical notes will begin having the first payment due 30 days from the close of escrow. A typical Late Fee clause is 10 days from due date and a penalty of 6% of the monthly payment. Personally I like 10 days and 10%. In my 28 years of experience in selling businesses, I've found out that if a Buyer is late once and I remind them of the 10% late fee they will do everything possible to not incur it again.

Collateral: Typically the business assets are collateral for the note. In this case there needs to be a written Security Agreement attached to the note. Most escrow companies will supply the Security Agreement. Read it. Not all are created equal. A good one will require the note holder's (Seller's) consent to transfer the note and note holder's consent to substitute or replace any items of collateral (equipment) with like or comparable collateral. A list of equipment is necessary to be attached to the note and security agreement as these items are part of the Sellers overall collateral. All Security Agreements should also define a Breach so that enforcement of the Note and Security Agreement are "cut and dry'.

UCC-1 Financing Statement: This instrument perfects your note by registering it with the California Secretary of State. Make sure it is listed on the UCC-1 that "all fixtures and equipment are collateral, along with all inventories, cash, receivables, deposits and any other tangible asset that the subject business may have.

Reassignment of Lease as Collateral Security:  This is one of the more important items and least known of for securing your note. This is a separate document. I used it all the time in the "old days" before all that loose bank financing and all cash deals. It's very important this document be signed by the Buyer, Seller and Landlord.

In the sale of the business you are obtaining an Assignment of Lease to the Buyer from Seller. In that document the Seller is transferring all of his interest in the lease to the Buyer. If a Buyer were to default on the note, the Seller has to go back through the Landlord in getting possession of the business.

In a "Reassignment of Lease as Collateral Security" the Buyer and Landlord acknowledge that in the event a Buyer defaults on either the rent or note payment, the lease shall revert back to the Seller. The Seller gets the Landlord's and Buyer's consent to take back the premises up front before ever giving possession to the Buyer. Seizing your assets from the Buyer on a Default of the Note does not give you back possession of the Premise. This agreement terminates upon payment in full of the Sellers' Note.

The more complete your note is the more successful you will be in collecting all of your payments. These items also give higher value to your note should you decide to sell it on the open market after closing escrow. I would like to share selling notes with you soon.

Lee PetsasAbout The Author:  Lee Petsas has been selling businesses with UBI Business Brokers in Southern California since 1981. In 1999 he became the Owner and Broker for UBI. He is still active daily in Listing and Selling businesses. He has been approved multiple times by Courts as an Expert Witness in the area of Business Valuations. UBI has been in Southern California selling businesses since 1965. You can reach Lee direct at 714-363-0440.


Categories: BizBen Blog Contributor, Deal And Escrow Issues, How To Buy A Business, How To Sell A Business


Comments Regarding This Blog Post


While I am aware of escrow agents, business brokers, business sellers, and CPAs preparing seller take-back promissory notes, please take it from a retired attorney that this is one item that the business seller should definitely have handled by the seller's lawyer. No exceptions. A significant part of the deal -- sometimes the bulk of the "profit"-- can be the loan that the buyer owes the seller. Nothing should be left to chance. Two important reasons to use a lawyer: (1) He/she has the expertise to cover every possible "what if" that could develop when it comers time for the seller to collect on the note; and, (2) the lawyer has malpractice insurance--if the lawyer is negligent in properly preparing the note for the particular circumstances of this unique transaction and therefore the seller can't collect from the buyer, the seller may be able to collect from the lawyer's insurance company, instead.


  Helpful Resources To Assist In Selling And Buying California Businesses
Mark Chatow, Esq.: Legal Services For Buying, Selling Businesses

Mark has a broad range of small business purchase & sale experience from analyzing potential acquisition targets to successfully guiding buyers and sellers through the purchase & sale of small businesses. Mark can assist with contracts, negotiations, legal matters, etc. Reach Mark at 949-478-8393.

Willard Michlin, CPA, Certified Fraud Examiner, Due Diligence Services

Willard Michlin, CPA #106752, offers buyers step by step training & assistance in doing Due Diligence Services when they are thinking of making an offer, or are in process of investigating a business purchase. He helps to determine the actual net profit even when there is cash. Call 805-428-2063.

Helen Yoo: Escrow & Bulk Sale Services - Southern California

New Century Escrow, Inc. is a fully licensed & bonded independent escrow company. Over 20 years combined experience in handling bulk escrow transactions. Multi-lingual staff that speaks your language, including Korean, Chinese, Vietnamese. Call Helen Yoo direct at 626-890-1151.

Diane Boudreau-Tschetter: Escrow And Bulk Sale Services

California Business Escrow, Inc. is a full service independent escrow company serving all of California and has expertise in a wide range of escrows. Our team prides itself on providing an exceptional escrow experience. For more info phone Diane Boudreau-Tschetter at 888-383-3331 or 209-838-1100.

Chuck Post: Laundry Buyer Representation, Consulting, Due Diligence

Chuck Post has 32 years experience in the laundry industry, specializing in assisting laundry buyers (and entrepreneurs) with buying or starting up, building, re-tooling, laundries throughout California. Laundry buyer representation, consulting, due-diligence, lease negotiations, laundry valuations.

Ranvir S. Sandhu, Esq. - Legal Services For Buyers And Sellers

I've worked at top Bay Area law firms and have extensive experience with business entity formation, mergers, dissolutions, conversions, employment matters, including experience in reviewing and negotiating transactional documents such as leases and purchase agreements.

Michael Davidson, Business Broker - Southern California

Los Angeles Business Broker providing M&A quality services for Small Business Owners. We leverage our technology and expertise to Simplify & Expedite the Business Sales Process. Matching the right buyer with the right business is how we define success.

Rick Carlson, Business Broker - Southern California

You Will Never Feel Lost In The Shuffle. Many Brokers Simply Send Out An NDA And That's The End Of Communication. All Buyers Receive A Personal Meeting With An Ace Acquisition Specialist So They Can Recommend The Perfect Business For You. Phone Rick direct at 800-985-4939.


  Related Articles, Events, Blog Posts, Discussions, Videos, Interviews
BizBen Index: Weekly Results - 274 California Businesses Sold 5/21 - 5/25

For the week of 5/21 thru 5/25, 274 California small businesses were sold by business owners, business brokers, and agents. In 2017 16,956 CA small businesses were sold. So far this year (2018) 3,896 small to mid-sized California businesses have sold so far by business owners, agents, and brokers.

Can A Business Seller Back Out Of Escrow If They Simply Change Their Mind?

Can a seller of a small business back out of an ongoing escrow? Probably, yes, it all depends how far along the escrow is, which will dictate how messy things will get for both owner & buyer. Joe Ranieri (Southern California Business Broker) gives his feedback with others on this BizBen Discussion.

Purchase A Business With Limited Or No Cash - Financing Tips For Buyers

Purchasing a business with no money down can be difficult, but not impossible. Financing a business purchase or down payment can often be accomplished with these strategies from Peter Siegel, MBA (Business Purchase Financing Expert, ProBuy & ProSell Program Advisor with BizBen) at 866-270-6278.

Due Diligence Issues: What Business Buyers Should Know About The Process

Willard Michlin, CPA, CFE at 800-864-0420 elaborates why you can do a large portion of the due diligence yourself, depending on your background, but you should never try to do it solely on your own. In this BizBen blog post he explores ways business business buyers get themselves into trouble.

Getting An SBA Loan To Buy A Small Business: Dispelling Some Major Myths

When seeking SBA loan financing many potential business buyers have wrong information about the process of securing the best financing to buy a business. Peter Siegel, MBA (at 866-270-6278) a business purchase financing expert delves into the myths and facts regarding SBA loan financing.

Business Purchase Financing Expert Gives Tips On Proving Cash Flow

What are the actual "provable" adjusted net earnings (cash flow) of a small to mid-sized business being purchased? Buyers need to look carefully at all financial info for the "real" adjusted net income or cash flow. Peter Siegel, MBA (business purchase financing expert) at 866-270-6278 explains.

Differences Between Business Appraisers, CPA's, And Due Diligence Experts

What are the differences between a Business Appraiser, CPA auditor and Due Diligence Expert - and why should you care? Insights from Willard Michlin, CPA in his latest BizBen blog post that will be useful for someone engaged in, or planning to conduct due diligence in the future

Thinking About Selling A Small Business? Know These 8 Factors That Matter

The likelihood of selling a business is often determined by external factors in the marketplace. Here are eight influences on how easy, or difficult it might be when selling a small California business. Peter Siegel at 866-270-6278 (BizBen ProSell Program) explains these factors for owner/sellers.

See All News, Tips And Events


BizBen Podcasts Live
Escrow Services From Helen Yoo New Century Escrow
Willard Michlin Due Diligence Services
Southern California Legal Services For Buyers And Sellers
Facebook
Twitter
Linkedin
Google Plus You Tube
Vlogs and Podcasts


Auto Related
Business Services
Children Related
Communication Related
Computer, Internet Related
Construction Related
Entertainment Related
Financial Services
Health, Beauty Related
Home Improvement Related
Maintenance Related
Manufacturing Related
Media, Publishing Related
Pet Related
Photography/Video Related
Real Estate Services
Restaurant, Food Related
Retail Related
Service Related
Sports Related
Transportation Related
Travel Related
Wholesale Related

Auto Body Shops
Auto Repair Shops
Bakeries
Bars, Sports Bars
Cafe Restaurants
Car Washes
Cleaning Services
Clothing, Apparel Stores
Coffee Shops
Convenience Stores
Deli Restaurants
Discount, Dollar Stores
Dry Cleaners
eCommerce Websites
Fast Food Restaurants
Florists, Flower Shops
Full Service Restaurants
Gas Stations
Gift Shops
Gyms, Fitness Facilities
Home Health Agencies
Hotels/Motels
Ice Cream Shops
Juice, Smoothie Shops
Laundromats
Liquor Stores
Markets, Marts
Nightclubs
Pizza Restaurants
Postal, Shipping Stores
Preschools, Day Care
Print Shops
Salons, Beauty Shops
Sandwich Shops
Smog Test Only Shops
Smoke Shops
Spas, Med Spas
Sushi Restaurants
Tire Shops
Towing Services
Vending Routes
Wireless, Cellular Shops
Yogurt Shops

Alameda
Alpine
Amador
Butte
Calaveras
Colusa
Contra Costa
Del Norte
El Dorado
Fresno
Glenn
Humboldt
Imperial
Inyo
Kern
Kings
Lake
Lassen
Los Angeles
Madera
Marin
Mariposa
Mendocino
Merced
Modoc
Mono
Monterey
Napa
Nevada
Orange
Placer
Plumas
Riverside
Sacramento
San Benito
San Bernardino
San Diego
San Francisco
San Joaquin
San Luis Obis
San Mateo
Santa Barbara
Santa Clara
Santa Cruz
Shasta
Sierra
Siskiyou
Solano
Sonoma
Stanislaus
Sutter
Tehama
Trinity
Tulare
Tuolumne
Ventura
Yolo
Yuba

0 to $99,999
$100,000 to $249,999
$250,000 to $499,999
$500,000 to $999,999
$1 million to $2 million
over $2 million



BizBen - Where California Deals Get Done! 888-212-4747
7172 Regional Street #364 · Dublin, CA. 94568
BizBen · Copyright © 1994 - 2019, All Rights Reserved

               Vlogs and Podcasts  
Join Us On Social Media - Content Updated Daily
Sign Up Today - For Our FREE BizBen Weekly Email Newsletter
Includes The Best Info On Buying, Selling, Valuing, Financing California Businesses:
Articles, Blog Posts, Podcasts, Videos/Vlogs, Discussions, Q&A, Workshops, Webinars,
Resources. Watch For An Email Confirmation After Signing Up Above. Thank you.
Clost Login


Please confirm your registration by clicking the link we've sent to .

If you can't see it, please check your junk mail folder.

If you have any problems registering, or need assistance with your new BizBen User Account please phone BizBen Customer Support at 888-212-4747.



First Name:*
Last Name:*
Email Address:*
Confirm Email:*
Create Password:*
Confirm Password:*
Phone:
(   
 


You Are A:
Individual
 
Intermediary
 

Email Address:
Password:
 
Search BizBen.com

500 New & Refreshed Detailed Postings Daily
Over 2500 Resources Available On BizBen
Since 1994. Where California Deals Get Done!
Deposits With Business Purchase Agreements: How Much? Structure? Refunda...
Read More News
BizBen Index: Weekly Results - 274 California Businesses Sold 5/21 - 5/2...
Read More News