Lenders Beware: Is Your Article 9 Sale Commercially Reasonable?

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A recent survey conducted by DailyDAC, suggest that buyers of distressed assets are not likely to see auction notices in general circulation newspapers. Given legal requirement for Article 9 and other similar sales to be "commercially reasonable," according to DailyDAC, lenders must consider other vehicles for advertising.

“The goal of an Article 9 sale is to try to bring in as many bidders as possible... supplementing notice by also publishing in DailyDAC... may help attract more bidders...who have self-idnetified as being interested in...distressed assets."

A recent poll, according to DailyDAC, suggests that the majority of buyers of distressed assets do not regularly search newspaper ads for public notices of sales or similar auctions held by trustees, assignees, and receivers. This raises the question of whether such sales are at risk of attack as not being "commercially reasonable,” as required by the Uniform Commercial Code, Chapter 128 in Wisconsin, and similar statutes that govern such sales.

According to Bill Schwartz, a partner with Levenfeld Pearlstein in Chicago who represents lenders nationally, “the goal of an Article 9 sale is to try to bring in as many bidders as possible. Given that this survey suggests that publishing in a newspaper alone may not be as effective at this as generally presumed, supplementing notice by also publishing in DailyDAC is an easy way to help make sure that the sale is, indeed, reasonable and may help attract more bidders. Unlike a general circulation newspaper, DailyDAC is read by PE sponsors and other buyers who have self-identified as being interested in bidding on distressed sales”

Secured creditors and the professionals who conduct sales of collateral on their behalf can also use DailyDAC to help protect themselves from an attack that a sale was not commercialy reasonable. And, with no cost for the lender, the value proposition is obvious. “Unlike a newspaper ad, which typically costs at least several thousand dollars, posting an announcement in DailyDAC is completely free,” according to Kathleen Parker, a Director at DailyDAC.

More About DailyDAC:

DailyDAC is a web portal designed for the busy entrepreneur, business owner, and active, opportunistic investor.

DailyDAC’s Interactive Deal Database is a subscription-based deal curator, focused on lower middle market, time sensitive situations. DailyDAC’s IDD provides subscribers with opportunities to buy or lend to private companies. DailyDAC derives its revenue from subscription fees and on-line advertising. It charges no commissions or finders' fees to buyers and charges no fees to sellers.

Opt-in to receive DailyDAC’s free weekly electronic newsletter by going to http://www.dailydac.com.

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Kristen Weber
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