Thursday, October 27, 2011

Acceleration Clauses in Pharmacy Business Loans and Commercial Leases in Utah

By Brad MacLiver
Authorship and profile at Google


A provision of many UT pharmacy business loans and commercial leases is an acceleration clause. The acceleration clause in the loan/lease agreements allows the lender to accelerate their collection of payments contingent on an event occurring. These events may include lack of payment by the borrower, failure to keep the property adequately insured, failing to pay tax assessments, not maintaining the property, selling the property/asset, etc.

Lenders view the acceleration clause as an important tool in their business loan and commercial lease programs. Loan and lease documents might not specifically address the foreclosure of a property, or repossession of an asset, but this is where the acceleration clause comes into effect. Without the clause the lender would only be able to foreclose on one missed payment at a time. With the acceleration clause, despite whatever event kicks the clause into gear, the lender can demand immediate and full payment of all remaining balances and fees.

The Utah pharmacy business loan or lease documents provided to the pharmacy owner will describe the rights, conditions, and obligations relevant to the acceleration clause. When the pharmacy owner in Utah (the borrower) doesn’t meet their obligations then the loan or lease goes into default. A payment that is even one day late can cause a default. Due to this, pharmacy business loans and commercial lease documents should be thoroughly read and understood before signing.

A Few Tips:
1. Should a pharmacy’s slowing cash flow cause a business loan to default, they may be able to negotiate with the lender by offering additional collateral if the pharmacy owner has additional unencumbered assets.

2. If a Utah pharmacy is able to catch up on their payments they can reinstate the business loan before the acceleration starts.

3. States have different rules which regulate the notification of an acceleration clause being exercised. Utah Pharmacy owners should understand the laws in the state where they operate because lack of knowledge is not an acceptable excuse.
                                 
4. When an acceleration clauses are exercised on commercial leases, the possibility exists that the landlord is unable to collect rent from both the defaulting tenant and a new tenant at the same time. In order to save themselves some money, pharmacy owners in Utah should help the process by assisting the landlord re-lease the property. However, please note, should the pharmacy be in the process of being sold and the files and inventory moved to a competitor’s location, the UT pharmacy buyer will require restrictions in the Purchase and Sale Agreement  that the new tenant cannot be another pharmacy.

5. Lenders prefer not to have to go through the foreclosure process, so if your pharmacy is headed in that direction start talking with the lender about finding a solution. Communication with the lender is a good thing.

6. Some Utah pharmacy business loans and commercial leases require a “personal” guarantee from the business owner. This means that the business owner’s personal assets and credit will become involved in the event of a default. The “corporate” status of the business will not keep the lender from seizing the personal assets.

When considering financing a pharmacy for acquisition, or expansion, due diligence and understanding of all aspects of the transaction should be considered. Using the services of a Utah pharmacy industry expert to guide a pharmacy owner through the maze of details will benefit the pharmacy owner in UT in making the best business decision.

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