November/December NACM Oregon 2012 Business Credit Journal · Five Reasons to Offer Discount Terms...

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November/December 2012 NACM Oregon Business Credit Journal 7931 NE Halsey, Suite 200 Portland, Oregon 97213 Tel 503.257.0802 Fax 503.257.0247 www.nacmoregon.org Page 1 In This Issue Stale Guaranty ....................... 1 Chair’s Message ..................... 2 President’s Message ............... 2 Open House .......................... 3 Member Profile ...................... 4 Legal Corner .......................... 6 DSO Results .......................... 7 New Designee ....................... 8 International Corner ............... 9 BCLC Webinars ...................... 10 Contacts................................ 14 continued on page 12 Are You Jeopardizing the Collectability of Your Accounts with a Stale Guaranty? by Johnny White, Esq. I n the era of multi-national conglomerates, the tangle of subsidiaries, divisions, affiliates, etc., under any given corporate umbrella is increasingly complex. There are usually sound motivations for this, including tax strategy and ring-fencing the potential liabilities of a problematic subsidiary. Most credit departments probably have a limited knowledge of the web of companies sitting underneath the corporate parent, and indeed the details are not something a credit department generally need concern itself with. Apart from being complex and not that interesting, the issue is one for your in-house legal department. Nonetheless every so often a diligent credit manager should ensure that the complexities of the corporate group will not impinge the department’s ability to Five Reasons to Offer Discount Terms At their simplest, discount terms allow buyers to deduct a percentage of the full invoice price when they pay within a certain period. For example, terms of 1% 10 net 30 would give the buyer a 1% discount if they paid within 10 days. Should they choose to ignore the discount, the full amount would be due within 30 days. Such terms offer some fairly obvious benefits to buyers, chief among them the right to pay less than the agreed-upon price. But discount terms can also help the sellers offering them, allowing them to: continued on page 7

Transcript of November/December NACM Oregon 2012 Business Credit Journal · Five Reasons to Offer Discount Terms...

Page 1: November/December NACM Oregon 2012 Business Credit Journal · Five Reasons to Offer Discount Terms At their simplest, discount terms allow buyers to ... terms of 1% 10 net 30 would

November/December

2012NACM Oregon

Business Credit Journal

7931 NE Halsey, Suite 200 Portland, Oregon 97213 Tel 503.257.0802 Fax 503.257.0247 www.nacmoregon.org

Page 1

In This Issue

Stale Guaranty ....................... 1

Chair’s Message ..................... 2

President’s Message ............... 2

Open House .......................... 3

Member Profile ...................... 4

Legal Corner .......................... 6

DSO Results .......................... 7

New Designee ....................... 8

International Corner ............... 9

BCLC Webinars ...................... 10

Contacts ................................ 14

continued on page 12

Are You Jeopardizing the Collectability of Your Accounts with a Stale Guaranty? by Johnny White, Esq.

In the era of multi-national conglomerates, the tangle of

subsidiaries, divisions, affiliates, etc., under any given corporate umbrella is increasingly complex. There are usually sound motivations for this, including tax strategy and ring-fencing the potential liabilities of a problematic subsidiary. Most credit departments probably have a limited knowledge of the web of companies sitting underneath the corporate parent, and indeed the details are not something a credit department generally need concern itself with. Apart from being complex and not that interesting, the issue is one for your in-house legal department. Nonetheless every so often a diligent credit manager should ensure that the complexities of the corporate group will not impinge the department’s ability to

Five Reasons to Offer Discount Terms At their simplest, discount terms allow buyers to deduct a percentage of the full invoice price when they pay within a certain period. For example, terms of 1% 10 net 30 would give the buyer a 1% discount if they paid within 10 days. Should they choose to ignore the discount, the full amount would be due within 30 days.

Such terms offer some fairly obvious benefits to buyers, chief among them the right to pay less than the agreed-upon price. But discount terms can also help the sellers offering them, allowing them to:

continued on page 7

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Business Credit Journal

7931 NE Halsey, Suite 200 Portland, Oregon 97213 Tel 503.257.0802 Fax 503.257.0247 www.nacmoregon.org

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Message from the President 2012 has been a challenging year for the credit profession and NACM Oregon. We hear often from members how busy they are. I trust you will find time for rest and reflection during the holiday season. The Board and the staff of NACM Oregon wish you the very best for the Holiday Season and the New Year!

NACM Oregon will hold an Open House for members on Tuesday, December 4, at the NACM offices. You will receive an invitation by mail, and I hope you will plan to join us.

And, I hope you will plan to attend the CFDD Portland Chapter Holiday Party on Thursday, December 13. If you are not a member of this group, which is focused on education, leadership, and personal growth, please contact Kathy Linscott (971.230.1164 or [email protected]) or me (971.230.1158 or [email protected]) to arrange to attend as a guest.

Rod Wheeland, CCE, CAE Direct: 971.230.1158 [email protected]

Message from the Chairman As the holidays approach, I, on behalf of NACM Oregon, would like to extend an invitation to our membership to attend our annual Holiday Season Open House on December 4, 2012, from 4 to 7 p.m. We will provide good food, beverages, and a chance for us to thank you in person for being the most important part of our organization. I am looking forward to seeing you there.

As we look forward to 2013, we will again provide a variety of services to our membership. We will be advising you soon of the 2013 Education Schedule.

I would like to thank each of our member companies for your continued support this past year. I hope you have a great holiday season.

John Hardy Emerson Hardwood Co. [email protected]

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Join Us! NACM OregonMember

Open House

Tuesday, December 4, 20124 - 7 p.m.

NACM Oregon7931 NE Halsey, Suite 201, Portland

Appetizers, beverages, and fun!

Please RSVP to Elizabeth Heintz, [email protected] or 971.230.1120 by Wednesday, November 28.

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2012NACM Oregon

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Wally Yost, Bill Prothero, and Jim Montgomery were the three mechanics who opened Diesel Service Unit’s figurative doors in 1945 under a tarp

strung from a telephone pole behind a furniture store. Between the three mechanics there was 30 years combined diesel service experience and one single goal: “Treat every customer as if we were the customer.”

Pictured l to r: Pat Howard, Controller, and Harold Peterson, Credit Manager

Member ProfileDSU Peterbilt & GMC, Inc.

In the past six decades the business that started under a tarp has become DSU Peterbilt & GMC, Inc., a company with nearly 200 employees serving the trucking community with four locations from Phoenix, Oregon, to Kelso, Washington.

Pat Howard, Treasurer at DSU Peterbilt & GMC, Inc., explains that while they are known for their truck sales—they have Peterbilt, GMC, Isuzu, UD, and Workhorse franchises—they also serve their customers with full mechanical services, parts, and equipment leasing. Though the brand range seems eclectic, Howard points out that it offers the fullest range of equipment to fleet customers. “When it comes to selection, people like to buy trucks from us because they can buy from the smallest pickup to the largest heavy duty truck,” says Howard.

Sure enough, visitors to the DSU’s headquarters on Swan Island are greeted by the chrome grill and GMC badge of a Sierra when they walk through the doors. Though much of their business (about ninety percent) comes from fleet and commercial sales, Howard makes sure to explain that they appreciate all types of business, no matter how large or small. As he puts it, with a grin, “We don’t turn personal business away.”

It might not be three mechanics

continued on page 5

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Member Profile—DSU, continued from page 4

working under a tarp, but the small business culture is still hanging around. “It feels like a family business,” says Howard. However, as the Treasurer he admits that it is a challenge to preserve the family business feel while still meeting the business requirements of a company as large as DSU Peterbilt & GMC, Inc. A lot of credit is given to their focus on personal relationships at DSU, both in its ability to retain high quality employees and their longtime customers.

Pat Howard began working at DSU ten years ago as the company’s Controller and was promoted to Treasurer in 2010. In his current position, Howard supervises the credit, accounting, human resources, and information technology departments.

A Certified Management Accountant at an insurance company, Howard was approached by a recruiter looking for a CMA to fill a position at a truck dealership. Though he never set out to work in the “truck accounting business” - as he puts it - it has been a successful thirty years. It also turned into an accidental family tradition. Both of Howard’s grandfathers worked around trucks. One was a log trucker. One owned a car dealership.

Choosing a career in accounting was not an accident. “It was something I did well,” says Howard. Though his responsibilities have expanded since his days as a Junior Accountant, there are still everyday challenges—like audits. At one time they had determined that DSU had been audited by twenty-three government agencies. “In almost all cases we haven’t had any adjustment,” Howard says, with a hint of pride in his voice. And, as a company officer, Howard sees daily challenges outside of the accounting spreadsheets as well. “There’s a lot of time spent with managers of the different departments.”

Initially an anomaly—most of the promotions at DSU come from within—Howard enjoys the familial atmosphere of DSU. Jan Yost, who is Wally Yost’s son, is the President and CEO. His son and daughter work there as well.

And, as Howard points out, “It feels like a family business.”

But it’s a culture that doesn’t simply come from the last names or the break room. It is reinforced by DSU’s mandated open-door policy. As Howard puts it, “All the officers are glad to talk to anyone about anything, honestly, fairly, and with respect. And you don’t find that in a lot of companies.”

The Credit Team—pictured l to r: Pam Mills, Janet O’Neal, Brandie Weppler, and Harold Peterson.

DSU Peterbilt & GMC, Inc. www.dsutrucks.com

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Pay Attention to the Automatic Stayby Brenda Terreault, JD, CBA

According to the Bankruptcy Code, no creditor can demand to be paid once the creditor knows the debtor filed bankruptcy. But the automatic stay goes beyond just demanding payment. A creditor cannot do anything to put himself in a better position than any other creditor in the same creditor class.

Recently, in a current Oregon Chapter 11 case, the landlord of the bankrupt business attempted to make sure the past-due rent was paid by taking possession of debtor’s assets. The bankrupt business was closed at the time of filing. It had left inventory, equipment, furniture and other hard assets at the former business location which had been rented from the landlord creditor.

In May, the landlord filed a motion that, if granted,

would have compelled the Trustee to pay post-petition monthly base rent and the annual land lease payment owing under the lease. A hearing on this motion was set for mid-July. However, the landlord believed that his motion might be partially denied and he might be treated like any other unsecured creditor on both pre- and post-petition rent.

He also knew that the bankruptcy trustee had set an auction of assets located at the bankrupt company’s offices and warehouse for mid-June. The day before of the scheduled auction preview, the landlord chained and locked the leased property, disrupting the preview time. This disrupted the auction and harmed the bankruptcy estate.

Whether the landlord had violated the stay was undisputed. The landlord admitted to violating the stay, but claimed frustration as an extenuating circumstance. The creditor advanced three arguments in its defense: the damages

for civil contempt are discretionary, the stay violation was short-lived and no actual damages occurred.

The Trustee argued that, while the damages are dis-cretionary and the violation short-lived, to allow one creditor to ignore legal compliance without consequence would only encourage creditors to violate the automatic stay.

Under the Bankruptcy Code, the Court can order a creditor who violates the stay to pay the Trustee’s damages and expenses as well as sanctions that the Court deems just and appropriate. In this case, damages could have included the Trustee’s administrative and legal fees incurred for the auction that did not happen, as well as the Trustee’s administrative and legal expenses for bringing the contempt motion.

Before the Court made a decision on sanctions, the parties reached a private agreement on the matter. The Trustee dropped his

Brenda Terreault, JD, CBA, is the Collection Services Manager for NACM Oregon and an Oregon attorney. She has more than 18 years’ experience as an attorney, investigator, and operations manager in governmental, corporate, and law firm settings. Brenda is a regular instructor for NACM Oregon classes/seminars and webinars and a contributing writer in the monthly NACM Oregon Business Credit Journal newsletter. She earned her CBA designation in March 2010. You can contact her at 971.230.1196 or [email protected].

motion for contempt; the creditor avoided paying sanctions to the Bankruptcy Court. Hopefully, the creditor also learned a valuable, albeit expensive, lesson: Pay attention to the Automatic Stay. It applies to every creditor.

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• Improve or Meet Competitive Conditions Some industries require discount terms as a matter of course, meaning that not offering them would have a negative effect on sales. In other industries where they’re not so common, however, they can give a seller a distinct advantage over its competitors, provided the buyer in question is a solid credit risk.

• Reduce Total Credit Exposure If discount terms are offered and customers take advantage of them successfully, then the payment cycle for the sellers is likely to shorten dramatically. This ultimately results in reduced delinquencies and fewer credit losses.

• Reduce Credit and Collection Expense A faster payment cycle means that the receivables a supplier does have are of a higher quality, making financing considerably cheaper. Sellers that have exhausted most of their possible sources for financing or who just need a stronger turnaround for their receivables might not have any choice but to institute these terms, and could discover a real advantage.

• Reduce Borrowing Costs for the Seller Better payment cycles, fewer delinquencies, less bad debt: all of these things add up to make a seller look like far safer credit risk for their own financial institution or lender of record. Discount terms, when deployed properly, can aid the company as a whole, rather than just the company’s credit department.

• Put Their Money to Use Quicker Getting paid sooner is great, but the more important thing to consider is where that money goes once it’s been received. Offering discount terms entices buyers to pay quicker, shortening the time between receipt and reinvestment and speeding up the entire corporate growth process.

Rewritten with permission from NACM National

Five Reasons, continued from page 1

The CMI was picked up by BusinessWeek/Bloomberg this month! Click on the link below:

U.S. Economy

Economy Looking Up Ahead of Big Jobs Number

National Summary of Domestic Trade Receivables Results —3rd Quarter 2012 We have received the results of the National Summary of Domestic Trade Receivables (DSO) for the third quarter of 2012. Please plan to contribute in January for both the 4th Quarter DSO survey and the annual Bad Debt survey. To participate click here. The Credit Research Foundation (CRF) has been producing this valuable quarterly report for more than 50 years.

DSO increased from the prior quarter to 40.40 from 39.85. A year ago the measure was 40.43. Best Possible DSO slight-ly decreased to 31.80, as compared to 31.90 last quarter and 31.90 a year ago. Average Days Delinquency remained the same at 4.80, as compared to 5.80 a year ago. The percent reported over 90 days past due remained the same at 0.50 as as compared to 0.47 a year ago.

Medians for 27 different industries are included in this summary. If any SIC code has less than three responses, it will not appear in the report.

Please contact Customer Service or your Account Executive for a copy.

Now that you’ve done the NSDTR, if you really want to see how you’re doing, you’ll want to participate in CRF’s comprehensive Benchmarking survey. You can do that at: http://www.crfonline.org/surveys/benchmarking/benchmark-ing.asp. Get the $1,500 report FREE!

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NACM-Oregon Foundation Scholarships The NACM-Oregon Foundation grants scholarships to credit professionals for continuing education, professional designations, and conference expenses.

The Foundation manages two scholarship funds: the NACM-Oregon Scholarship Fund and the Phylliss Clark Memorial Fund. The Foundation offers scholarship to the following events:

• All NACM Oregon educational courses

• Portland Community College courses within the Credit Administration and Advanced Credit Administration Programs in preparation for professional designation

• Self-study courses in preparation for professional designation

• Registration and exams fees for the National NACM Professional Designation Program

• NACM/CFDD Pacific Northwest Credit Conference

• National Credit Congress and Exposition

• NACM National schools such as Credit Management Leadership Institute, Mid-Career School, and the Graduate School of Credit and Financial Management

If taking a course or pursuing your certification seems like an expensive proposition, think again. These scholarship funds are a benefit to you as a member, so please take advantage by applying for next year.

To apply—

To apply for scholarship funds, or for more information, contact Lourdes (Lou) Rice, NOF Scholarship Committee Board Director, Pacific Metal Company at 503.454.1051 or [email protected].

Submit applications to:

Lourdes (Lou) A. Rice, NOF Scholarship Committee Board Director Pacific Metal Co. 10700 SW Manhasset Dr. Tualatin, Oregon 97062p: 503.454.1051 f: 503.454.1065 e: [email protected]

ReceRtification

Lori J. Jones

Congratulations are in order to Lori for her recent CCE recertification

designation achievement.

NACM Oregon recognizes Lori’s accomplishment

and applauds her success.

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International Corner, by Alice Knight, RGCP

Fall is here, school has started, and it’s time to get organized for the coming year. Now is a good time to review lots of odds and ends.

Country Limits/Terms I set general terms by county and then look at individual customers to see if exceptions should be made for them. Country limits/terms can change quickly so are often changed as new information becomes available from customers, overseas agents, trade groups, flash updates and international news. If something happens to change the country limits or terms you need to quickly be able to see all the customers within that country that might be affected.

Access To Information Quick access to information is critical to mitigate potential new risk. Do you know how to get needed information quickly?

Example—Last month we received a flash notification that Brazil was increasing the import duty on some paper and paperboard products to 25% effective in one week. We needed to know if we had product ready to ship or on the water that would incur this increased cost. Within 30 minutes we had the needed information that we were in the clear. The key is knowing how to get the information quickly.

Alice Knight is Vice President of Finance & Administration for Paper Products Marketing, Inc. Ms. Knight has more than 45 years' of experience in International Finance and is an active member of ICTF and NACM. She has served as Co-chair, Panel Member, and Presenter at Annual Global Conferences,as President of FCIB Forest Products Group.

Holiday Schedule In September, we received notice that our office in Hong Kong would be closed October 1st and 2nd for Autumn Festival. Many of us are aware of the slowdown in December and January in most of Latin America for Christmas celebrations. Chinese New Year is always an exciting challenge to balance shipment arrivals and bank documents. Now is the time to update your holiday calendar by country. Depending on port facilities, speed of customs clearance, and bank document reviews many customers want a “blackout period” of 3 to 8 days before and after the official dates. These dates vary by country and year and are very important if you want to avoid detention and demurrage and to get paid when expected.

Sales Input Have any of your sales people been traveling to visit customers? Be sure to get a current update when they get back. Get their impressions of the economy, your industry, the specific customers they visited, and any specific issues coming up such as an election or new duties. This firsthand information is the next best thing to actually being there yourself. Be sure to let sales know that you value their input.

Bank Relationships Fees for letters of credit and documentary collections vary widely by bank. If this falls in your area it is good to review the fees on at least an annual basis. If justified try to direct more of

the activity to the lower cost areas. Cost is not the only factor. Customer service, expertise, ease of contact, and speed of review are also important considerations. We like to have a local presence so that any minor discrepancies can be resolved quickly.

Contact Information If you have contact information for people you deal with update it frequently. Be assured that the one day you are out someone will need to contact someone on your list and that someone will have retired two months ago. You know that and have the information on a yellow post-it-note on your desk. Unfortunately your poor stand in does not know that.

The ongoing theme for all these odds and ends is quick, current, and proactive.

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Webinar fee: $79 each—member; $109 each—nonmember

For a complete list of webinars and descriptions, please visit www.businesscreditlearningcenter.com.

If you have any questions on any of the webinars, call Elizabeth Heintz at 971.230.1120, or [email protected].

Schedules are subject to change.

2013Phone Power Collections January 9 9-10 a.m. (PT)

Credit, Cash & Collections: The Lifeblood of the Business January 11 9-10 a.m. (PT)

The Real Measure of Cash Flow January 15 9-10 a.m. (PT)

To Lien or Not to Lien: That is NOT the Question January 16 9-10 a.m. (PT)

Business Credit Learning CenterWebinar Schedule

2012Managing Credit Risks in the Euro-zone and Other Challenging International Markets November 27 9-10 a.m. (PT)

Making Customer Visits Effective November 28 9-10 a.m. (PT)

Nuts, Bolts & Tactics: Defending a Preference in Bankruptcy December 12 9-10 a.m. (PT)

Bankruptcy Mistakes Made by Creditors and Debtors December 13 9-10 a.m. (PT)

Bankruptcy Issues in Construction December 19 9-10 a.m. (PT)

© New Yorker Cartoon. Jack Ziegler from cartoonbank.com. All Rights Reserved.

Coming Soon!2013 EducationClass Schedule

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Ten Reasons Companies PurchaseCredit Insurance

8. You are entering new markets and need the benefit of the insights that insurance carriers provide.

9. Management is worried about catastrophic bad debt losses and instructs you to mitigate that risk without reducing credit lines and limiting sales growth.

10. A particularly large and important customer (new or existing) needs a credit limit that you are not prepared to offer unless you have some form of collateral or security.

© 2010 Michael C. Dennis. All Rights Reserved

Here are ten reasons to consider purchasing trade credit insurance:

1. Your bank strongly recommends you do so.

2. Your bank insists that you do so.

3. Your investor(s) strongly recommend that you do so, or your investors insist that you do so.

4. Your bank conditions issuance of a loan on your purchasing credit insurance.

5. You receive an excellent quote both in terms of the accounts covered and the amounts covered per account.

6. You are convinced that purchasing credit insurance provides a tangible benefit that easily outweighs its costs.

7. Senior management is convinced that credit insurance benefits outweigh the costs.

Join us at the Rio Hotel, Las Vegas, May 19-22, 2013, for the year’s largest gathering of business credit professionals in the country.

Get registered today!

Credit Congress & Exposition

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collect a delinquent account, and an area where this is capable of happen-ing is customer guaranties.

Not much needs to be said about the benefits of a personal guaranty to a credit manager. For all the U.S. bankruptcy system has to recommend it, it is brutally unfair to unsecured creditors most of the time, and bankruptcy often carries with it no adverse consequences for the businessman who recklessly, or even fraudulently, trades his company into insolvency. Thus, a valid personal guaranty is a crucial piece of leverage when an account is past due. However, when you dust off your former best customer’s file, after he has become heavily delinquent and started dodging your calls, you want and need that guaranty to be enforceable.

Guaranteed Success(ion)

A guaranty can take multiple forms, and ensuring its effectiveness can be delicate. There is no uniform U.S. law of guaranties, leading to some wide divergences between the vari-ous states. Depending on a guaranty’s language, it could be a “guaranty of payment” (meaning you can sue the guarantor immediately if the primary debtor fails to make payment when due), or a “guaranty of collection” (meaning you must sue the primary

debtor first, win, and fail to collect the judgment before suing the guarantor). It could be limited or unlimited in amount. It could be effective for a finite duration or continue indefinitely. Even a continuing guaranty can be discharged if you alter the primary debtor’s obligations so as to leave the guarantor more exposed, or it could just be revoked at any time. But in a complex corporate group, you are potentially faced with additional problems even if the guaranty was well drafted to begin with.

From time to time, a large conglomerate will incorporate new entities, and dissolve others, and the functions and responsibilities of the various divisions are liable to change at management’s direction. Management’s considerations will not be the details of enforcing individual guaranties, but their actions could have knock-on effects. Even if a team of corporate lawyers examines the legal effects of organizational changes, it doesn’t mean that every scenario or changed circumstance is accounted for. So, by way of example, invoices to Customer X, may have been issued by Subsidiary Y, but Customer X’s ten-year-old guaranty was executed in favor of Subsidiary Z, which used to service Customer X until Customer X entered a different geographic market 5 years ago, where

supplies were handled by Subsidiary Y. If this guaranty does not hold up, and your profit center takes the hit, the corporate lawyer who failed to foresee this will not be there to take responsibility.

A related problem can arise in the context of mergers and acquisitions. Ownership of accounts is changing hands, and unless the credit department, as a matter of policy, requires all the newly acquired customers to sign fresh guaranties, problems can arise. In fact, whether a company succeeds to a guaranty by merger or by acquisition may be an important distinction depending on the governing state law.

The merger is usually not problematic. When a merger takes place, one of the two merging companies is extinguished, and the newly merged company succeeds to the rights of the now defunct old company by operation of law. The legal effect has been described as “not creat[ing] an entirely new entity but ‘merely direct[ing] the blood of the old corporation into the veins of the new, the old living in the new’ Jackson v. Continental Telephone Co., 212 Cal.App.2d 514 (citation omitted). However, when a company is acquired, e.g. by a bulk purchase of assets, the old corporation is not extinguished. It still exists, and a guaranty in favor of

Stale Guaranty, continued from page 1

continued on page 13

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the selling company may still run in its favor, rather than the successor-buyer, especially where the seller continues to operate in some fashion. To succeed to the guaranty in this context, it would have to be validly assigned. In some states, whether this can even legally occur will be dependent on an archaic common law distinction between “general” and “special” guaranties.

So You Think You’re Special...

As noted above, the law of guaranties varies from state to state. In certain states the law has been substantially impacted by legislative enactments. In others, it is primarily judge-made and old common law rules, such as the rule relating to “general” and “special” guaranties, survive.

Traditionally, a general guaranty was one addressed to all persons generally, e.g. “To whom it may concern, I hereby guaranty...” A special guaranty, on the other hand, was addressed to a specifically-named person, and enforceable only by that specifically-named person. Under common law rules, a special guaranty could not be assigned unless the guaranty explicitly stated that it could. While the question is infrequently litigated, cases applying the distinction remain good law in states such as Delaware, Missouri, and Florida. The practical effect is that if your company

bought the assets of a Florida-based company, and was assigned its customer accounts, the personal guaranties associated with those accounts are likely unenforceable if the original credit application or guaranty contained a Florida choice of law clause, and the guaranty specifically named your predecessor.

The position is different in states such as California, where there are specific code provisions making guaranties presumptively assignable, and Illinois, which analyzes whether assignment materially altered the obligations imposed on the guaran-tor. One Illinois federal court decision pragmatically recognized that “[t]he decision to effect a consolidation of two businesses...is ordinarily based on business and tax considerations which are irrelevant to the question whether a guaranty issued to one of the predecessor businesses should survive” Essex International, Inc. v. Clamage, 440 F.2d 547, 550-551 (7th Cir. III. 1971) However, even suing for enforcement of guaranties in those states does not fully insulate you from the common law hangover of the special/general distinction. As long as the guaranty (or credit application) contains a choice of law clause from a state that dogmatically respects the special/general distinction, that choice of law should govern, and the rule would apply.

Stale Guaranty, continued from page 12 General Pointers

The most practical advice that can be offered to any large credit department faced with the kinds of issues outlined above is to simply require all of your customers to re-execute their personal guaranties periodically, either after a defined period of time, or after a customer’s credit limit goes above defined thresholds. While you will no doubt encounter resistance from sales, the arguments in favor of doing so appear far more persuasive, especially if you are a large company not in desperate need of every sale. It can be presented to the customer as a matter of company policy, which eliminates any suggestion of distrust, and if the customer refuses to sign a personal guaranty that is a reason in its own right to reassess whether it should be extended credit. The argument against doing so appears to be either that you risk souring the sales relationship, or that you risk the customer revoking his existing guaranty which he may have forgotten about. If the latter motivation is what gives you pause, remember that the existing guaranty should not be assumed to be bulletproof.

Reprinted from the Winter 2012 Quarterly Newsletter, with permission from Blakeley | Blakeley LLP (www.blakeleyllp.com)

Page 14: November/December NACM Oregon 2012 Business Credit Journal · Five Reasons to Offer Discount Terms At their simplest, discount terms allow buyers to ... terms of 1% 10 net 30 would

November/December

2012NACM Oregon

Business Credit Journal

7931 NE Halsey, Suite 200 Portland, Oregon 97213 Tel 503.257.0802 Fax 503.257.0247 www.nacmoregon.org

Page 14

ChairmanJohn Hardy Emerson Hardwood Co. [email protected]

Vice Chair Marsha Johnson, CCE TEC Equipment, Inc. [email protected]

Secretary/TreasurerPat Swope, CCE, CICP Pacific Seafood Co., [email protected]

CounselorRaeann Binau, CICP, RGCP Airgas - Norpac, Inc. [email protected]

Directors Steve Amiel Tektronix, [email protected]

Linda Bishop, CCE, CICP Tektronix, [email protected]

Will Campbell Standard Supply [email protected]

Tony Ceniga Industrial Finishes & [email protected]

Paula Cooley, CBA American Steel [email protected]

Sue Hein Rapid Bind, [email protected]

Lori Jones, CCE [email protected]

PresidentRod Wheeland, CCE, CAE NACM [email protected]

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Data ContributionShannon Abnal, CGA 971.230.1166 [email protected]

Member Services Kathy Linscott, CGA 971.230.1164 klinscott@nacmoregon

Member Services Account Executives Clara Nemeth, [email protected] Denise Redding, CGA 971.230.1178 [email protected]

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EducationElizabeth [email protected]

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