my borrower is a ____________________* what do i need to know? and who has the authority to sign?...
DESCRIPTION
Sole Proprietor Existence Single person Often d/b/a Only filings are a business license Attractive to borrower because: No cost Easy No formalitiesTRANSCRIPT
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MY BORROWER IS A ____________________*WHAT DO I NEED TO KNOW? AND WHO HAS THE AUTHORITY TO SIGN?*CORPORATION, PARTNERSHIP, LLC…OTHER COLORFUL ADJECTIVES WELCOME, BUT ARE NOT COVERED IN THIS PRESENTATION
Elizabeth O’Brien/Andrew EresSTAHL COWEN CROWLEY ADDIS, LLC55 W. Monroe Street, Suite 1200Chicago, Illinois 60603
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OVERVIEW1. Existence – how are each created?2. Liability – who is on the hook?3. Taxation – how does the government
get their money?4. Takeaway
a. What is lender exposure?b. What should I be looking for?
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Sole Proprietor Existence
Single person Often d/b/a Only filings are a business license Attractive to borrower because:
No cost Easy No formalities
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Sole Proprietor Liability – FULL
The borrower is responsible for all claims, lawsuits, debts of the business
A creditor can attach to personal and business assets
This is good for the bank, bad for the borrower
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Sole Proprietor Taxes
All profits and losses are reported on the borrower’s personal tax return
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Sole Proprietor Takeaway
This form of business is the easiest way to access borrower’s full assets in the event of default
Financial reporting will consist of tax returns and personal financial statements
No guarantor Borrower can sign individually
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Partnership Law – Uniform Partnership Act Existence
Oldest in history. Identified by L.P. or G.P. Profits and losses are allocated equally unless otherwise set forth by
agreement General Partnership vs. Limited Partnership
General Partnership Limited Partnership
General partner has the idea, limited partner has the money and cannot be involved on day-to-day operations
Partnership Agreement Helpful, not required
Filings – Secretary of State -Limited Partnership only Liability – FULL; joint and several Taxation
“Flow Through” A partnership files a tax return, but is not taxed on a state or federal level
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Partnership
No FilingsFull Liability –
Joint and Several
Pass Through Taxation
General Partner is signatory
General Partnershi
p
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Partnership
File with Secretary of State
Full Liability – Joint and Several
Pass Through Taxation
General Partner signs
Limited Partnershi
p
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PartnershipWhat
Authority Documents should be signed at Closing?
What Entity Documents
Should I Review?
Who Can Sign?
Partnership
Partnership Agreement
Obtain Copy, confirm signatory
Resolutions should state that Partnership
Agreement still in place and has not been
modified, and confirm that the signor has the
authority to sign
No Partnership Agreement
Resolutions should state that no Partnership
Agreement exists, and confirm that the signor
has the authority to sign
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Corporations Law – Illinois Business Corporations Act Existence – INC., Incorporated
Documents File Articles of Incorporation with Secretary of State Bylaws Shareholder Agreement Meeting Minutes File Annual Reports Consents / Resolution
Structure Owners = Shareholders Directors = Managers Officers = President, VP, etc., day-to-day operations
Corporate Formalities
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Corporations C Corp vs. S Corp
C Corp Large companies More flexibility on growing / expanding business due to lack of restriction on investors
S Corp Less than 100investors
Must be US citizens Can have only one class of stock Cannot be owned by C Corps, other S corps, LLCs (cannot create tiered/layered ownership)
Liability – Protected – no personal liability for SH – GET A GUARANTOR Some exceptions
Taxation C Corp
Double taxation, taxed on income at entity level, then dividends taxed again at individual level
S Corp Not taxable as an entity, but very complicated
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Corporations
Articles of Incorporation
& Bylaws
Shareholders protected from
liability
Double taxation – entity level and individual level
Resolutions and Incumbency
Certificate should be obtained for signor
C Corp
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Corporations
Articles of Incorporation &
Bylaws
Shareholders protected from
liability
No double taxation, but complex accounting is required
Resolutions and Incumbency
Certificate should be obtained for signor
S Corp
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Corporations
Review Bylaws for Authority Provisions
Is Shareholder Vote Required? Unanimous Consent
Certificate of Incumbency
Resolutions/Consent should state who has authority to sign
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Limited Liability Company Law – Illinois Limited Liability Act
Existence – LLC, L.L.C. Documents
File Articles of Organization with Secretary of State Operating Agreement Changes - Articles of Amendment and / or Amendments to LLC Agreement, Resolution
Structure Can be one person Small business, few shareholders
Owners are members Member-managed or Manager managed Profits and losses are shared pro rata based on membership interest (see waterfall
provision of LLC Agreement) Have the ability to create preferred classes SPE Series LLC
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Limited Liability Company Corporate Formalities
No meetings required Liability
Limited to assets of entity, members are protected except for piercing
Taxation Pass through (i.e., partnership), but they can elect
to be taxed as an S corp. where profits in excess of member salaries are taxed at a corporate level
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Limited Liability Company
Articles of Organization &
Operating Agreement
Personal assets of Borrower protected
Pass Through Taxation
Resolutions for Manager or Member, as applicable
LLC
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Limited Liability Partnership Law – Illinois Uniform Partnership Act Existence (LLP)
Documents File for Certificate of Existence with Illinois Secretary of State Partnership Agreement
Structure General Partner and Limited Partner, each share equally in decision making Must be 2 or more people Manage the business directly Uncommon in general, but most common amongst professional organizations
(doctors, lawyers, accountants)
Liability Partners are protected from each other’s negligence, torts, etc., but not their
own actions that lead to lawsuits Taxation
Pass through
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Limited Liability Company
Operating AgreementManager Managed
Major Decision?
Yes – Resolution must be signed by members, and
must specifically state that transaction is approved and Manager can sign
No – Resolution approving transaction can be signed
by Manager alone
Member Managed
Confirm in Operating Agreement which
members need to sign – Resolution should
authorize the transaction
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Limited Liability Partnership
Statement of Qualification and
Partnership Agreement
Liability is limited – one partner is not liable for another
partners acts
Pass Through Taxation
General Partner signs
LLP
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Authority Documents Certification of Organizational
Documents Formation Documents Entity Documents Resolution Incumbency Good Standing Authority to Do Business
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Layered EntitiesBorrowerABC, LLC
10%Investor
A
30% Investor
B
60% Investor
C
ManagerDEF, Inc.
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Jurisdiction Illinois Delaware Nevada California Florida