Extending Consumer Credit Requires Compliance With Federal Laws
by Henry J Fasthoff
NOTE: THIS IS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY. IT IS NOT INTENDED TO BE CONSTRUED AS LEGAL ADVICE.
It is important for any prospective business purchaser to perform due diligence in researching a potential target business. Some of the documents you will need to collect and review in your analysis of whether a particular business would be a good acquisition include the following types of documents.
1. Corporate and Organizational
o Certified copy of articles of incorporation and bylaws of company and subsidiaries as currently in effect;
o Partnership agreement and any amendments thereto;
o A copy of the most current organization chart available of the company;
o A list of states and foreign countries (if any) in which the Company is qualified to do business; and
o All names under which the company has done business in the past five years; this includes registered and unregistered trademarks, fictitious name statements (commonly referred to as "d/b/a filings").
2. Financing Documents
o All loan agreements, debt instruments, and other financing instruments, and all related material documentation, to which the company is a party.
o A list of all mortgages, liens, pledges, security interests, charges, or other encumbrances to which any property (real or personal) of the company is subject and all related material documentation;
o Schedule of all short-term and long-term debt (including capitalized leases, guarantees, and other contingent obligations).
3. Financial Statements
o All audited and un-audited financial statements;
o Brief description of contingent liabilities involving the Company, such as pending lawsuits and threatened litigation;
o Name of accountants and length of relationship with accountants; indicate whether the accountants own any interest in or hold any position with the Company or its subsidiaries;
o Budgets, business plans or projections (for the Company and any of its subsidiaries) made on a quarterly, annual or other basis during the past 3 fiscal years.
4. Contracts & Leases
o Real estate leases. Consider the term of the lease and the quality and location of the space and decide whether your business needs would be satisfied;
o Equipment leases;
o Purchase and sale contracts for goods and services [uniforms; food suppliers]
5. Tax Matters
o Are back taxes owed?
o Are there any pending tax suits?
o Does any local, state or federal taxing authority have any liens against the real property or business personal property you would be acquiring? If so penalties, interest and attorney's fees could greatly increase the cost of satisfying the tax lien.
6. Identities of All Directors, Officers & Shareolders
o You ought to perform a background check on each of these people to see whether there is any pending litigation against them.
7. Owned Real Estate
o Need a list of owned real estate to help in valuing the business and determining liabilities.
o You would want to have copies of the insurance policies, as well as the name and contact information for the insurance agent, going back four years from the time of purchasing the business. Check to see whether the insurance policies would cover you, as the new company, for any damages alleged to have occurred before you acquired the business.
Finally, many other factors related to financial and other matters must be considered before taking the plunge.
Mr. Fasthoff is a commercial litigation attorney by day, and an entrepreneur in the marketing field by night. He represents corporate clients and individuals in the fields of commercial litigation; entertainment litigation; intellectual property litigation; arts law; technology law; and a wide variety of other business litigation matters.