100% Seller Financed Agreements: Avoiding default, not merely defining it

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November 14, 2022

by a searcher from University of Virginia-Darden - Darden School of Business in Washington Metropolitan Area, USA

I am in the process of discussing a unique 100% seller financed deal, tied to an earnout. The seller recently signed a large contract that has started transacting, but won't be fully realized for a year. He still wants to exit the business now, rather than wait one more year to sell. He would like to recognize at least a portion of this growth through an earnout, which SBA loans do not allow for.

I could offer at the higher end of market value to be competitive with other offers and still finance the deal. But instead I have offered an up-front under market price for today's value (to mitigate my risk) - tied to an earnout for one year on the growth of that specific contract (at a lower multiple)...but only if the whole thing is seller-financed. To me, the seller only accepts a lower guaranteed price up front if he has complete confidence in the earnout to come.

The seller is interested, but wants to know how we would structure the contract in such a way that avoids default. Typical language would protect him in the event of default if uncured after so many days, allowing him to take back control of the company and the ability to litigate...which never ends well.

Does anyone have suggested guardrails as it pertains to structure, provisions, or language that would aid in the avoidance of default, rather than simply protecting in the event of? I would provide quarterly financials of course, but perhaps some form of seller consultation following consecutive declining quarters? Any ideas are welcome.

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Reply by a searcher
from University of Virginia in Washington Metropolitan Area, USA
The business (as it stands today) is strong and fits within my portfolio well for a variety of reasons. I am paying under it's value today, along with the earnout at various levels of performance for a single contract. Separately and combined, they provide me with an IRR well above goal. Call it an earnout - call it a sales commission...the deal itself has already been clearly defined and structured. I have full confidence in that aspect.

The question I have is regarding suggested contract language to give the seller confidence that in the event business begins to decline...is it identified early, and what involvement would he have in attempting to correct it? If anyone has structured a seller-financed deal and has come up with unique ways to gain seller confidence...I would welcome ideas.
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Reply by a searcher
from Harvard University in Boston, MA, USA
I agree with Cody on this one. I'd consider paying for it's value today + an agreed upon percentage of revenue X years into the future. Seller paper is good, maximize that. Add the upside as a sales contract with % of revenue above a certain threshold, you decide what what gross margins & SGA% to underwrite. You do take the risk of less profitability, but it's easier to agree on revenue than profitability, since as CEO you'll control costs. Keep veto power over unprofitable new business and perhaps you won't lose your shirt. But honestly this sounds like a bad deal to me.

Only other structure I'd consider is an overpaid deal with 100% seller finance and clear clawbacks if the business doesn't reach X EBITDA by Y date. Agree on the valuation mechanisms beforehand.
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