Seller Financing for a Business Sale in England

During a business acquisition, we tend to assume the potential buyer is responsible for sourcing the financing necessary to buy the business. For most business sales, this is correct, though sometimes the seller may help raise the capital required to complete the sale. This is known as seller financing. This article will examine the forms of seller financing for a business sale that are available. It will consider how these may relate to your business activities. 

Seller Financing

Selling financing, or vendor financing, is where the seller contributes a portion of the financing used to complete a business acquisition. This may seem odd as it is reasonable to expect a seller to want to maximise the amount of money they receive for selling the business to the buyer. Having to contribute money to the transaction suggests that the seller receives less for the transaction. 

In addition, most sellers want to limit their connection to the business after they have sold it. However, by tying financing to the transaction, the seller is effectively attached to the business even after the transaction completes. 

However, vendor financing may be appropriate for certain transactions. For instance, if the buyer cannot secure the total amount of financing necessary to complete the transaction. Here the seller may be prepared to make up the difference. 

Alternatively, the buyer may be in a superior negotiating position. So they may impose a condition of purchase on the seller that they maintain a stake in the business to help ensure its success. This stake can later be released. Cash is then paid to the seller once the target business reaches a pre-agreed performance metric. 

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Forms of Seller Financing

Seller financing for a business sale can take a variety of forms, and some of these are described below.

Debt Financing

Seller financing for a business sale can take the form of debt financing. This is where the seller provides finance to the buyer of a business. This makes up for a shortfall in the amount of cash the seller could not raise. Where this is the case, if you are the seller, ensure you structure the loan carefully. 

The most important consideration is the seniority of your loan in relation to the other debt financing your buyer has raised. In most cases, where the buyer has third-party debt financing, the bulk of this money will have come from a bank lender. Most bank loans used for acquisition finance are secured on the target business. Otherwise, they are guaranteed by a group entity of the buyer. Where your buyer has used a bank loan, any loan you make to the buyer will be less senior than this. So if your buyer defaults, they will only repay your loan after the secured debt, such as the bank loan, has been repaid. This increases your risk. As such, ensure that the buyer compensates you for the increased risk. This will ideally take the form of a higher interest rate than the interest paid on the secured loan. 

If you do choose vendor debt financing, it should be set out in both the transaction agreement as well as in a separate loan agreement  or vendor loan notes) 

Equity Financing 

Equity financing is more common where the target is a publicly-traded company. It is where you agree with the buyer to structure the sale to give you an equity stake in the business. For instance, you may negotiate with the buyer to receive a mixture of cash and shares in the seller’s business. This may be advantageous when the buyer buys out your business outright and absorbs it into their business. It reduces the amount of cash they need while also allowing you to share in the profits of the merged businesses. 

Alternatively, you may agree to retain shares in the business itself. Importantly, ensure you understand that these equity rights may mean you have management duties in the target business. 

Hybrid Financing 

If, as the seller, you provide both equity and debt financing to the transaction, this is hybrid financing. In this case, you should seek the advice of financial and legal advisors to ensure that the transaction’s structure is commercial and legally advantageous. 

Earn-Outs

Earn-outs are a form of vendor financing. This is where the buyer incentivises the seller to ensure the business is appropriately managed during the transition period. 

They can be structured either as debt or equity. The same legal and commercial principles apply as discussed above. In practice, as the seller, you may have different kinds of earn-outs. For instance, after the sale of the target business and upon completion of a pre-agreed performance target, you may be entitled to receive a final portion of the purchase price. You may hear this referred to as a deferred purchase agreement. 

Separately or in addition, you may be entitled to redeem the debt for equity in the target company. 

Key Takeaways 

Sellers can be a crucial source of financing in certain corporate transactions. They can provide either debt or equity financing to the buyer as part of the purchase of the target company. In practice, this is usually done in two cases. One is where the buyer cannot raise the necessary financing from third parties, such as bank lenders or private equity sponsors. The other is where the buyer has a better negotiating position than the seller. If engaging in seller financing, you should seek advice from a team of financial and legal advisors to ensure you are in the best position. 

If you need help with your seller financings, our experienced commercial lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 0808 196 8584 or visit our membership page.

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