Finding the right partner financial partner is imperative for government contractors success. A partner that understands your business and can be responsive in a highly competitive government marketplace. The government is the most complicated customer in the world and a financial partner that understands your business will make you a better competitor.
Purchase order financing has been around nearly as long as its close relatives (factoring) and distant ones (merchant banking) but has become much more prevalent in the last decade. With better technology and other innovations accelerating manufacturing and production timelines to meet demand from e-commerce and big box customers, the global supply chain has never been under more stress. We see this with the China tariffs, Brexit and other significant changes to trade policy. Purchase order financing has never been a more valuable option for companies buying and selling around the globe.
The Evolution of Modern Day Purchase Order Financing
In the 1990s, purchase order financing gained relevance as consumer product companies began to shift domestic production to overseas sourcing and manufacturing in an effort to cut costs. When that happened, many factors were unwilling to give credit in a company’s borrowing base for letters of credit, even if those letters of credit were critical for companies attempting to source from overseas. For most factors, purchase order financing was initially too risky because they did not understand the nuances of international trade or the process of managing the logistics of inventory and meeting delivery times on overseas shipments. Some even worried that suppliers would ship low-quality or imitation products. Or worse, what if suppliers shipped rocks in the containers instead of apparel? Factors were more accustomed to lending against products they could see or touch, not products on the water.
Seasonality issues also posed challenges for lenders. As single-season businesses like outerwear or swimwear companies began to grow, their financing needs changed, making it even more complicated for factors to support them. But the emergence of big box retailers was perhaps the biggest game changer of all. Small and middle-market importers now had a new sales channel to grow their businesses, though for many of those companies, it was both a blessing and a curse. Importers were inundated with large sales orders during their busiest seasons, like Back-to-School, Black Friday and Christmas. This strained cash flow and tied up working capital for longer periods of time.
As time went on, the production cycle for buying and manufacturing products overseas – once as long as 120 days from order to delivery – was cut shorter. Retailers had no desire to hold inventory for long periods of time, which gave way to inventory management issues and a growing reliance on replenishment programs when selling into retailers. Furthermore, inventory financing to grow e-commerce companies and bridge the divide between brick-and-mortar sales and direct-to-consumer distribution makes it more critical than ever to implement multiple inventory financing solutions. The confluence of all of these factors has led to the evolution of the product we know today as purchase order financing.
Entrepreneurial or bridge lenders recognized a gap in the industry early on and saw that purchase order financing could be an alternative for businesses raising more permanent capital. Most lenders preferred companies with stronger balance sheets, but their borrowers were rarely looking for funders that would become permanent equity partners.
Production financing – or work-in-process financing – also became a much-needed financing tool. A form of cash-flow financing for the creation of finished goods, production financing funds raw materials, components and direct labor costs. Though more challenging to underwrite, it became an option for companies manufacturing in the government contracting space, light assembly businesses and other sectors that export under contracts or are supported by letters of credit from foreign customers.
Intercreditor Agreements: The Key to Effective Collaboration
Intercreditor agreements were always the major obstacle in closing a purchase order financing deal. For starters, as purchase order financing started to be utilized more frequently, there was a good deal of unfamiliarity – even concern – that the purchase order funder was usurping the senior lender’s collateral position. This, of course, was never true, as funders were only asking the senior lender to subordinate on the purchase orders and the collateral that would be created through the purchase order financing, nothing more. Purchase order funders typically prefer senior lenders to advance on the receivables in order to pay off the financing, and then the funder subordinates the security interest back to the senior lender upon receipt of the advance on the newly created accounts receivable.
As these tandem deals have gained popularity, the intercreditor agreement has become a more widely accepted and effective tool. Unlike an intercreditor agreement used in the second lien lending market, one that’s used in purchase order financing is transaction-driven, with a clear start and finish. It’s beneficial for the factor or other senior lender to recommend purchase order financing in lieu of providing the over advances themselves, as lenders are always looking to reduce inventory reliance in the borrowing base structure.
Furthermore, for the borrower, relying on a form of transaction capital like purchase order financing is often a more favorable alternative to giving up equity.
Factors and traditional lenders now happily co-exist with purchase order funders, and the intercreditor agreement is the critical component to any soundly structured deal. Without it, a purchase order financing deal simply would not work for all parties.
The Growing Impact of International Trade on Financing
The international trade environment is at a crossroads. The United States is engaged in a seemingly never-ending tug of war with China and the end is not necessarily in sight. Over the last several years, the credit and banking environment in China has become so leveraged that Chinese manufacturers require pre-payments or large deposits in place of letters of credit, which had previously been widely accepted. With a pre-payment, suppliers are paid before goods are even shipped or delivered. The risk of non-performance by the Chinese factory is too great for many funders to bear and they don’t typically prefer the idea of sending cash before there is assurance of production and delivery of finished products.
The increasing reliance on pre-payments, coupled with the threat of tariffs, has created a burdensome liquidity challenge for companies importing overseas products. As a result, ownership and management teams are diversifying sourcing, looking to Vietnam, Bangladesh and other alternative markets. Likewise, letters of credit have been on the rise again in those countries, especially as importers rely on them as part of redeploying sourcing outside of China. For companies unable to reduce their reliance on Chinese suppliers, purchase order funders have stepped in to also provide funding for logistics, freight, and duty, as well as funding “cash against documents” for inventory in transit when letters of credit may not be necessary. Companies in a growth period and companies in a turnaround situation that are sourcing from overseas are also relying more on purchase order financing to rehabilitate insufficient trade payment terms from global suppliers.
The Future of Purchase Order Financing
Despite the ongoing challenges with China and the looming threat of tariffs, international trade will continue to thrive, albeit within a new framework. The rise of smart technology and innovations like blockchain will help to streamline and monitor transactions in real time, potentially making those transactions more secure and provide more transparency and real-time data to purchase order funders and anyone lending on international trade deals.
There are two recent trends in financing products that bear mentioning. The first is what is known as supply chain financing. Even though the two terms are often used interchangeably, supply chain financing and purchase order financing are not one and the same. Supply chain financing, which has shown significant growth of late, relates more to offering a buyer extended payment terms, but may also provide suppliers with an early payment option. Usually this means that goods have been delivered or services have been rendered. Given that purchase order financing addresses the need for pre-shipment finance between a buyer and a supplier, it can be an integral part of the overall supply chain finance needs of a business that trades globally.
A second notable trend is the tendency of certain lenders to act like trading companies, providing unsecured inventory financing as an alternative to purchase order financing. While these programs are intriguing, they usually require the lender to underwrite the borrower itself, which may limit the ability of a small- to lower-middle market business to take on larger orders, beyond what the company’s balance sheet can support.
Companies are always on the hunt for the highest quality and lowest costs in manufacturing and they will travel far and wide to find it. If they haven’t already, businesses that import or export will soon discover there is a whole world outside of China.
Purchase order funders will need to understand and adapt to the various legal issues related to collateral control, logistics, title transfer, foreign duties (including VATs) and other issues related to cross-border trade, and they must get comfortable lending to foreign borrowers. The purchase order funder of the future must truly be global – able and willing to finance a company based in London, sourcing product from Bangladesh and selling to retailers in Japan.
As businesses become more sophisticated and their financing needs become more complex, there is an enormous opportunity for lenders of all stripes. Partnering with a purchase order funder that is highly experienced navigating international trade issues as well as domestic manufacturing is critical for factors, asset-based lenders and other traditional lenders. But aligning with a purchase order funder that can think and react globally will be the real key to remaining competitive in the future.
WASHINGTON ― A bipartisan pair of senators have introduced a bill to make it easier for small businesses to do business with the Pentagon, through larger defense firms.
Sens. Martin Heinrich, D-N.M., and Joni Ernst, R-Iowa, on Monday announced the Defense Small Business Advancement Act, which is meant to reauthorize and improve the Department of Defense Mentor-Protégé Program. One of several such programs the federal government offers, the Defense Department’s program was established in 1991, then repeatedly expanded and renewed until the administration and Congress allowed it to expire last year.
“Small businesses often struggle to overcome the hurdles of bureaucracy and fail to break through the existing network of suppliers to the Department of Defense, which is the single largest department in the federal government,” Heinrich, ranking member of the Senate Armed Services Subcommittee on Strategic Forces, said in a statement.
“This bill gives small businesses an opportunity to partner with larger defense companies who have the resources and experience to navigate the procurement process and compete for contracts, which will create good paying jobs in our communities and provide better products for the Department of Defense.”
The introduction of the bill just weeks before the Senate Armed Services Committee begins its markup of the 2019 National Defense Authorization Act tees up its inclusion in the NDAA, in some form or another.
Ernst, a member of the Senate Small Business and Entrepreneurship Committee and chairwoman of the SASC Subcommittee on Emerging Threats and Capabilities, said Iowa-based small businesses in the defense industry are often at a disadvantage when it comes to landing Pentagon contracts ― but the mentor program would “open the door for additional opportunities for our local job creators.”
According to a report by the Congressional Research Service, under the program, mentors were allowed to make advance or progress payments to their protégés that the DOD reimburses; award subcontracts to their protégés on a noncompetitive basis when they would not otherwise be able to do so; lend money to or make investments in protégé firms; and provide or arrange for other assistance.
The Pentagon has provided roughly $450 million to mentor firms since the program’s inception through fiscal 2017. The DoD provided $23 million in FY17, $20 million in FY18, $30 million in FY19, and it proposed $32 million in the FY20 budget.
The Heinrich-Ernst bill tweaks the original program by requiring an independent third party to conduct a study and provide recommendations for improving the program based on previous data and data to be accumulated over the next three years of the program.
The program was meant to increase participation of small, disadvantaged businesses performing as suppliers to the DoD, civilian agencies and private industry by encouraging mentorships from established DoD contractors.
Assistance from mentors could include technical, managerial and other business development assistance to small businesses. Mentors would also obtain assistance for protégés through small business development centers, procurement technical assistance centers, historically black colleges and universities, and minority institutions of higher education.
The program would incentivize mentors to provide the assistance by reimbursing developmental assistance given to the protégé, or granting credit toward applicable subcontracting goals ― as defined by the Federal Acquisition Regulation.
Participating protégés have been awarded more than $5.4 billion in contracts over the lifetime of the program. For every year a protégé business participated in the program, the average business added 13.4 new, full-time employees to its payroll and earned $7.3 million in additional revenue, according to Heinrich’s office.
A couple in the Tampa Bay area got a loan for $36,762 for their real estate business. Even though they had never missed a payment the lender convinced a court to freeze their bank account and took $52,886.93 from them (far more than they paid, considering they had already made payments). How could this happen?
A ‘confession of judgment’ (also called a cognovit note but not to be confused with a consent judgment) is a document signed by a borrower that waives the right to due process if a debt is unpaid. The term “confession of judgment” means that the signer confesses and accepts the judgment (the decision of the court). This confession of judgment might also be a personal guarantee, in which the borrower pledges personal funds if the loan isn’t repaid.
Confessions of Judgment are Under State Law
‘Confession of judgment’ language is part of a loan agreement, specifically in a promissory note. This language is regulated by states. Not many states (including Florida) allow confession of judgment language, but New York, where the Tampa couple’s loan company had its main office, does.
Some states allow confessions of judgment in limited areas; Pennsylvania, for example, allows confession of judgment clauses in commercial (business transactions). Sometimes the state law allows a period of time (30 days, for example) to allow the debtor to file motions and work out a repayment plan.
This concept isn’t difficult but it’s strange, so let’s look at how this all happens.
- A company gets a business loan from a lender. The company signs documents with the confession of judgment language during the loan approval process.
- At some point maybe the borrower pays a day late (but not always). The lender goes to a court (in New York, in this case) and gets someone (maybe just a court clerk) to agree that the borrower is in default on the loan. That is, the borrower didn’t comply with the terms requiring how the money is to be paid back.
- So the confession of judgment language is acted upon by the court, and the lender takes the judgment order to force a bank to freeze the debtor’s funds and give these funds to the lender.
- No, the lender doesn’t have to notify the borrower that their money is going to be taken.
A story in Bloomberg Business says of this practice:
…these lenders have co-opted New York’s court system and turned it into a high-speed debt-collection machine. Government officials enable the whole scheme.
The Bloomberg story reports that “In one month, a single clerk’s office in Orange County, New York, issued 176 judgments against small businesses in 38 states and Puerto Rico.”
What Does a Confession of Judgment Language Look Like?
Here’s a brief example of the language in a promissory note that includes a confession of judgment, from an American Bar Association document (WORD form). At the top of the form, this language appears:
THIS INSTRUMENT CONTAINS A CONFESSION OF JUDGMENT PROVISION WHICH CONSTITUTES A WAIVER OF IMPORTANT RIGHTS YOU MAY HAVE AS A DEBTOR AND ALLOWS THE CREDITOR TO OBTAIN A JUDGMENT AGAINST YOU WITHOUT ANY FURTHER NOTICE.
Further down in the document there is language allowing the debtor to authorize an attorney “to confess judgment against the Debtors in favor of the Surety (basically, the lender) for the full amount of the ..Loan…without stay of execution or right of appeal, and expressly waiving …relief from the … immediate enforcement of a judgment….”
How Can the Business Get Its Money Back?
It can be almost impossible. In the case of the couple in Tampa, they lost their business and had to declare bankruptcy because all their cash had been taken. To fight this injustice, the debtor needs an attorney, and how do you pay this person when you don’t have any money? Since the whole process was legal, and the lender can prove that the debtor signed, there’s little that can be done.
What Can Be Done Before Signing
Since the financial recession in 2008, some lenders require confession of judgment language in business loans to prevent debtors from walking away from the business and the loan. Some suggestions:
- Ask about the lender. Check them out. These lenders often offer great rates that banks can’t match but they are more likely to require confession of judgment language.
- Find out where the lender’s headquarters are (what state) and what their laws are regarding confessions of judgment.
- If the lender won’t remove the clause, ask what other guarantees you can give. If there’s no opportunity for compromise, you might want to walk away from the loan.
- Get an attorney to review the documents before you sign. It’s better (and cheaper) to pay an attorney before the fact than to pay to try to get your money back.
“Interest rates are rising and cutting into the margins of small businesses.” This is a common gripe amongst business owners.
The WSJ Prime Rate is 5.00% – a historically low number notwithstanding several Fed interest rate hikes. For historical perspective, in 2001 the Prime Rate was 9.00%¹ .
So, are interest rates cutting into margins?
The verdict: Slightly; but not enough to matter.
The impact that interest expense has on margins is often overestimated. Let’s look at an example of a business billing $100 per month; with a revolving line of credit of $100; paying 6% annual interest on the line; and generating a 6% margin.
After interest expense, the business makes $5.50/month – $6 of margin less $0.50 in interest expense.
Over the course of the year, the company will pay $6 of interest ($0.50 per month for 12 months) but will make $72 of margin ($6 per month for 12 months), thus the company will pocket $66. Regrettably, some business owners figure that if they have 6% margins, and pay 6% interest, the interest eats up their entire margin. Clearly not the case.
Even if the company had a non-bank expensive FinTech lender (Guido the loan shark) at 18% annual interest rate their margin would be the same $72 annually with Guido’s cut being $18, thereby pocketing $54.
So what is squeezing the business? Other factors, like fringe rate increases, have a much larger impact
In the above scenario, interest rates are only .50% of each invoice. If fringe is 10% of each invoice, the impact of a 10% increase in fringe costs would have 200 times the impact of a 10% increase in the WSJ Prime rate to 5.50%.
Margins are getting squeezed but the culprit is not rising interest rates but rising fringe costs driven mainly by health care costs. While interest does matter – it is not hurting the bottom line as much as other factors.
Springing up like daffodils in April is a glut of finance companies purporting to be “best-in-class” at financing government contractors. Most often these companies provide working capital financing to help execute on contracts. Service providers rarely need term loans unless they are making an acquisition.
Here are five “must haves” for any finance company that stakes claim to “best-in-class.”
1. All-in cost less than standard credit card rate. Some lenders charge well over 20% effective annual interest rate. Many go even higher – up to 40% in some cases. Often these companies obscure the true cost. Take some time to analyze the fees and have your accountant or financial advisor help if necessary.
2. No personal guarantee or validity guarantee. Your customer – the US Government – has perfect credit. There is simply no reason for you to tie up your personal assets, liquidity, home, etc.
3. No termination fee. As your business grows, you may get offers from other financing sources including commercial banks. You need to be able to move. Sadly, many financial companies require hefty termination fees to let you out of a bad deal and into a better one. Such handcuffs – really just a shakedown – are unfortunate.
4. Specialists in GovCon. You know how unique and specialized government contracting is. Make sure your financial partner is equally well-versed and experienced in the industry. As a rule of thumb, make sure that at least 75% of your financing source’s customers are GovCons; that they have provided commitment letters for bid submissions; and that they can increase your facility, without requiring additional underwriting, as you win new contracts.
5. Profitable. Nothing is worse than having your source of working capital struggle financially. In the extreme, they may not be able to fund when you need it. Making sure non-bank lenders are profitable is a challenge as most are private. Ask them to verify that they make a profit. They can fib but if something goes wrong you have their misrepresentation on record. Some companies, especially the internet lenders, are public and you can see their filings. And some are scary.
To paraphrase Charles Dickens “It is the best of times, it is the worst of times.” There have never been so many non-bank financing options. There also have never been so many whose claim, if honest, would be “worst-in-class.” Be careful. Be very, very careful.
For more information on Republic Capital Access and what they can do for your business, you can visit them on their website HERE. In addition more information about Govmates, a teaming partner platform for government contractors, can be found HERE.
Author: Katie Bilek, Sr. VP Republic Capital Access