Our business attorneys can help you determine the best way to protect your business’s financial interests in a variety of everyday business transactions.
In an assignment agreement, a debtor assigns its interests in a valuable (often cash-producing) asset to a creditor. The assignment may even be contingent upon the debtor defaulting on a loan or other payment obligation. For example, the bank holding the mortgage to your commercial property might require you to assign the rent you receive from that property to the bank.
When you sign a personal guarantee (sometimes spelled guaranty), you agree to be responsible for the debt owed by your business. You are effectively waiving the “limited liability” that your business entity would typically provide to you as an owner of the business. Banks and commercial landlords almost always require a personal guarantee from business owners before loaning money or leasing property to a business. On the other hand, business owners who are selling their businesses and providing owner financing often require a personal guarantee from the individuals purchasing the business. If your business has a history of consistent revenues, along with a good track record of paying its bills on time, you can sometimes negotiate more friendly terms, i.e., a personal guarantee that expires after a year or two of on-time payments or that requires the creditor to pursue the business first for repayment, even if you can’t get out of signing the personal guarantee entirely.
A promissory note is a promise to pay a certain sum of money, usually by a specified date. Obviously, if your business is loaning money to a debtor, you’ll want to have an enforceable promissory note to reduce the risk of the debtor failing to repay the loan.
Ohio is one of the few states to allow cognovit (or confessed judgment) notes. In this form of promissory note, the debtor is giving the creditor permission to go into court and “confess” on the debtor’s behalf if the debtor fails to repay the loan on time. With a cognovit note, the court can enter a judgment against the debtor without notifying the debtor that the creditor has filed a lawsuit and without giving the debtor an opportunity to defend the case.
Security agreements are often used in conjunction with promissory notes. In addition to the debtor’s promise to repay the loan (the promissory note), the debtor also agrees to give the creditor a security interest in certain assets (collateral). If the debtor fails to repay the debt, the creditor can seize and sell off the collateral.
When preparing a security agreement, attorneys typically also file a UCC Financing Statement, which puts the world on notice that the creditor has a security interest in (or a lien against) the collateral. Before the debtor can sell off those assets, they will need to get the lien removed by paying off the debt.