Mark Pestronk
Q: A significant vacation company in an additional condition would like to purchase my lesser company, and the potential buyer’s operator has made an attractive offer in principle. The buyer would established up a new company or limited liability company in my state, and the new business would purchase the inventory or belongings of my agency. The order cost would be paid in quarterly installments around a large number of decades. What recourse would I have if the consumer does not or are not able to spend the obtain cost?
A: You would have no recourse other than acquiring to file a lawsuit in opposition to a enterprise that has no belongings. So my guidance is to consider to put protections into the agreement of sale.
There are at the very least eight protections you could test to incorporate. The protections are created to reduce the threat of the buyer’s default and optimize your potential clients for restoration if the purchaser does default.
1) The big travel agency requirements to warranty the obligations of the new organization. With these types of a assure, you could sue the massive agency for nonpayment.
2) Ideally, the massive agency’s operator must personally ensure the obligation of each the new organization and the significant company. Though quite a few house owners are hesitant to make own guarantees, some are ready to do so.
3) The customer could article a “standby letter of credit rating,” which is a guarantee by a financial institution to pay back in case the consumer defaults. The total of the letter of credit rating would be the parties’ present estimate of potential payments.
4) The buyer could area the estimated upcoming installments in escrow with an escrow agent, who would spend you if the purchaser defaults. As with a letter of credit history, this functions only if the buyer has sufficient money or belongings to pay out the entire invest in price tag at closing if the customer selected to.
5) If you promote your agency’s property (as opposed to its stock), you could get hold of a security interest (i.e., a lien) in those assets so that you could repossess the assets if the customer defaults. I know that you in all probability will not likely want to just take the agency back, but the menace of repossession is very good leverage to make certain that the consumer pays.
6) Relocating into the more abnormal kinds of protections, you could also get hold of a safety curiosity in the buyer’s own travel company, which would give even a lot more leverage. Though it is a exceptional consumer who would agree to these types of a lien, you should at least take into consideration inquiring for it.
7) If you are advertising your stock (or membership desire in a restricted liability organization), you could require the customer “pledge” the stock, which signifies offering it into the possession of a 3rd celebration, who would remit the inventory to you if the purchaser defaults.
8) The agreement could offer that the customer pledge particular property outside the organization, this sort of as actual estate.
The buyer must concur to at the very least some of these protections. In any other case, I would caution towards heading forward.
