Saying Yes to the Sale With Limited Information, 2014 CreditScape, Western Region Credit Conference Seminar Slide Deck, sponsored by Credit Management Association. More information: www.creditmanagementassociation.org
How I Can Say “Yes” When
Everyone Else Says “No”
Saying “Yes” to the Sale With Limited Information
Credit Management Association (CMA)
Western Region Credit Conference
October 17, 2014
Kathleen Tomlin, MBA CCE
Central Concrete Supply Co., Inc.
Create “hooks that give you power if things go
– Power of attorney to sign off on joint checks
– Power to apply funds at your discretion vs.
– Power to offset amounts owed against commonly
– Personal guarantees of principals (or others)
Do Your Research
Who’s got the money?
Who’s your customer?
– Sole owner
– Limited Liability Corp
Who are you?
– Sole Source Provider
Doing Your Research
Use the Internet
Check out all licenses (CSLB, ABC, etc.)
Secretary of State – corporate filing
County websites – liens, judgments on company and
Customer’s website, Facebook page
Recent articles – complaints, permits, liens or stop
notices (Google, Yahoo search, CalTrans-type sites)
Parent, affiliate relationship
Who’s the owner of the project?
Where is the ship-to site? Google it!
Create a Guarantor
What if your customer is no good?
– Do they have a parent company?
– Is there someone/some company willing to back them?
What if the owner/parent company is no good?
– Is there property with real value?
– Can you attach other assets?
Is there a surety to cover you?
– Letters of credit, payment bonds
– Is the surety solvent?
Agree only to what you can live with
A contract is only an offer—negotiate
Do NOT let Sales sign everything
Do NOT let Sales NOT sign everything
What you DON’T do can hurt as much as
what you DO do!
Plans & specifications of Prime Contract
If you begin to ship you have agreed to terms
If you fail to deliver, you pay for their
increased costs from a competitor
Prices have no escalator or end time
Deliveries are per Buyer’s schedule
More Contract Language
When/if they get paid you get paid payment
Other terms or documents incorporated by
Dispute resolution venue
• CONTINUING GUARANTY
• In consideration of the extension of credit by Central Concrete
Supply Co., Inc. dba Westside Concrete Materials (hereinafter
called "Central") as it may see fit ___________________
(customer) which we hereby request and in which company we
are financially interested, for value received, the undersigned
(hereinafter called "Guarantors") unconditionally guarantee the
punctual payment of any and all indebtedness, whether such
indebtedness now exists or is incurred hereafter of
_____________________(customer) to Central Concrete for
ready mix and all other products sold and delivered by Central
Concrete to _____________________(customer) or its
• This is a continuing guaranty to Central Concrete relating to
any indebtedness including that arising from the project
_________________________________ (project) including
that arising under successive transactions, up to a maximum
of $_____________, which shall either continue the
indebtedness or from time to time renew it after it has been
satisfied. However, this guaranty shall not apply to any
indebtedness created after actual receipt by Central Concrete
of written notice of its revocation as to future transactions.
• No extension in the time of payment or other indulgence or
change in the terms or amount of payment granted by Central
Concrete to_________________ (customer) shall release the
Guarantors from the obligations contained in this guaranty.
The Guarantors waive notice of acceptance, notice of protest,
notice of dishonor, and of non-performance and notice of the
amount of indebtedness outstanding at any time.
• The obligations of the Guarantors under this guaranty are
independent of the obligations of
_______________(customer) and a separate action or actions
may be brought and prosecuted against the Guarantors
whether an action is brought against
________________________(guarantor) or whether
___________________(customer) may be joined in
• any such action or actions; and the Guarantors waive the
benefit of any statute of limitations affecting their liabilities
hereunder or the enforcement thereof. Each guarantor is
jointly and severally liable for these obligations.
• Any indebtedness of ____________________(customer) now
or hereafter held by Guarantors, is hereby subordinated to the
indebtedness of ________________________(customer) to
Central Concrete and such indebtedness of __________
(customer) to Guarantors if Central Concrete so requests shall
be collected, enforced and received by Guarantors as Trustee
for Central Concrete and be paid over to Central Concrete on
account of the indebtedness of ___________________
(customer) to Central Concrete but without reducing or
affecting in any manner the liabilities of Guarantors under the
other provisions of this guaranty.
• Guarantors agree to pay reasonable attorneys' fee and all
other costs and expenses which may be incurred by Central
Concrete in the enforcement of this continuing guaranty.
• This guaranty shall inure to the benefit of Central Concrete, its
successors and assigns.
• In executing this Continuing Guaranty we hereby represent
and warrant that at the time of the execution of this warranty
we have sufficient unencumbered assets to fulfill the
requirements of this Continuing Guaranty.
• IN WITNESS WHEREOF, the undersigned Guarantors have
executed this continuing guaranty at ______________,
_________ this _______ day of _____________, 20 __.
Key Points in Joint Checks
Consequences if joint check is not issued
Include guarantee language that binds the
• JOINT CHECK PAYMENT AGREEMENT
• Date: 10/31/14
• Project Name _______________________________________________________
• Project Address ______________________________________________________
• Parties to this agreement:
• )Central Concrete Supply Co., Inc. (“Central Concrete Supply”)
• )_________________________________________, Contractor or Subcontractor
• )_________________________________________, Owner/Developer/General Contractor
• This is an unconditional and irrevocable agreement between the three parties above. In order for Central Concrete Supply to furnish materials and
services to the project above, and to feel secure in the source of payment for those materials and services, Owner/Developer/General Contractor
agrees to issue joint checks payable to Central Concrete Supply and Contractor/Subcontractor for all payments made to
Contractor/Subcontractor on account of materials or services furnished by Central Concrete Supply. Owner/Developer/General Contractor agrees
that payment for the material supplied by seller shall be made in accordance with seller’s payment terms and in the form of a check payable to
“Central Concrete Supply and Contractor/Subcontractor”. By signing below, Contractor/Subcontractor hereby separately appoints Central
Concrete Supply as the party’s attorney-in-fact and hereby authorizes Central Concrete Supply to endorse the party’s names
(Contractor/Subcontractor) to all checks made jointly payable to Contractor/Subcontractor and Central Concrete Supply. In order to carry out this
provision of this agreement, Contractor/Subcontractor hereby irrevocably grants to Central Concrete Supply the power of attorney to endorse any
and all checks (or similar instruments for the payment of money) in the party’s name which are payable to Contractor/Subcontractor and Central
• Nothing in this agreement shall be construed to make Central Concrete Supply a party to Owner/Developer/General Contractor’s contract with
Contractor/Subcontractor or responsible for the performance of said contract.
• This agreement does not limit any lien rights that Central Concrete Supply is allowed by statute upon the above project. This agreement is not to be
affected by any back-charge, setoff or counterclaim that Owner/Developer or General Contractor has or may have against
Contractor/Subcontractor for any reason other than the quality of materials supplied by Central Concrete Supply to this project.
• Central Concrete Supply Co., Inc.
• By________________________________________ Title_______________________
• Contractor/Subcontractor __________________________________________________
• Address & Phone __________________________________________________________
• By_________________________________________ Title_______________________
• Owner/Developer or General Contractor ______________________________________
• Address & Phone________________________________________________________
• By __________________________________________ Title _____________________
Other Forms of Security
Security Agreement & UCC1 Filing
– Attach receivables from project
– Secure hard assets
– Look at position/priority
Letter of Credit
– Standby, irrevocable
Specific job information appears on all
– Shipping documents
– Proofs of delivery
– Project Statements
Proper shipment date on invoice
Timely production and mailing of invoices
Mailed to proper address
– Job site?
– Corporate offices?
– General Contractor
Timely filing of Preliminary Notice
Notice of Completion Filed—when??
No Notice of Completion
– How long have you been off the job?
Serving Stop Notice
Get to attorney to act on lien or stop
Product Shipped, Payment Made
The Silent Hero…..
California State Contractors’ License Board
California Secretary of State
County Recorder’s Office (Alameda County as example)
California Department of Transportation – Contractors/Contracts
Real Property Ownership Info (through Data Quick - subscription)
City Building Permits (San Francisco as example)
CMA Anscers website and your Industry Credit Group
Kathleen Tomlin, MBA CCE
Regional Credit Manager
Central Concrete Supply Co. – a US Concrete Company
755 Stockton Avenue
San Jose, CA 95126
408 404 1039
408 294 3162 fax
925 785 0074 cell firstname.lastname@example.org