Springfield Business Journal Articles
Sarah Delano Pavlik and Tom Pavlik write a monthly column on legal and business issues for the Springfield Business Journal.

Their columns will be added here each month after publication.
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With interest rates continuing at historic lows, many business owners have used the current rate situation to borrow money for expanding or starting their businesses. Even with interest rates potentially poised for an increase, many other business owners routinely seek credit to fund operations. Virtually all business owners will seek bank financing at some point. Toward that end, here is a list of points to consider when seeking bank financing.

1. Don’t Lie or Misstate Your Financial Condition. Although this consideration is more relevant to the borrower in need of immediate money due to business problems, it applies to all borrowers. Never make any false statements in a loan application or in any documents submitted to a lender. This includes your financial statements. Be forthright in disclosing your financial condition to your lender. If you misrepresent your debts or financial condition, the law may well deem the loan as having been obtained through a fraud. In that event, the loan can never be discharged through bankruptcy. Moreover, in some situations those false statements may result in criminal liability. Even innocent “puffing” of your business may be construed as fraud if you default on the loan. As in all situations, honesty is the best policy.

2. Ask About the SBA. The Small Business Administration (“SBA”) is a federal government agency charged with providing financial assistance to small businesses. Although the SBA no longer directly makes loans, it provides many programs designed to assist small business owners in obtaining credit for which they might not otherwise qualify. The SBA’s primary loan program is called the “7(a)” and helps small business owners obtain bank financing by offering an SBA guaranty for a portion of the debt. In general, the loan proceeds can be used for a wide variety of purposes. Another popular SBA option is the 504 Loan Program. According to Donald Funk, a commercial lender at U.S. Bank, N.A. who often is involved in SBA financing, the 504 Program “provides long term, fixed rate financing for major fixed assets such as land and buildings. These loans typically require a lower equity contribution than traditional bank financing and are made in conjunction with the involvement of entities known as Certified Development Companies -- nonprofit corporations set up to contribute to the economic development of the community.” The SBA website is loaded with helpful information on these programs and the other services it provides. Click here to view the SBA website.

3. Understand What You Are Signing. Whether you obtain traditional financing through your bank, or through an SBA program, you will be presented with many different documents that must be signed. Many of the documents are familiar to all -- such as promissory notes and mortgages. Other documents are a bit more arcane. However, there is no excuse for not reading every word of each document you are asked to sign. First, Illinois law dictates that oral statements from your lender are not enforceable when a written document creates the borrowing relationship. In other words, only the terms and conditions in the various documents control the relationship. Second, if you decide not to read so that you can later argue blissful ignorance, think again. Absent the most egregious of situations, you will be held to all of the terms and conditions in the documents you signed whether you read them or not.

Assuming that you actually read all of the documents, you also need to make sure that you understand each and every term. Understandably, lenders want to make sure that if your business heads south that they will be adequately protected. Toward that end, many lenders require loan agreements that contain certain financial performance covenants. Failure to meet those benchmarks generally constitutes a default. The perils of not understanding such terms from the outset should be obvious. Documents regarding collateral pledged to secure the loan should also be closely scrutinized. For example, most mortgages limit your ability to sell, pledge or transfer assets. If you subsequently pledge it as security for another loan or transfer it as part of your estate planning, that could be deemed an impermissible transfer resulting in a default. Understanding these terms from the outset allows you to intelligently address the issues and resolve them with your lender prior to taking a step that could inadvertently constitute a default. If you don’t understand, ask your lender or your attorney.

4. Expect Increased Identity Requirements. With the passage of the Patriot Act in the aftermath of 9/11, effective October 1, 2003, banks are now required to obtain additional information from their customers in order to establish their identities. This applies even to customers who have nothing more than a lending relationship with a bank. Armed with that information, in the near future banks will be required to verify that information against a federal government database of suspected terrorists and associated organizations. Although most banks already require much of this information, don’t be offended when your lender makes a point of asking for additional personal information about you or your business.
Posted in: October, 2003
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