SARDI LAW'S RESPONSE TO COVID-19

In the abundance of caution, and pursuant to the recent CDC recommendations, SARDI LAW is implementing social distancing and closing its office space temporarily starting March 16, 2020 to keep our employees and the general public safe during the current COVID-19 pandemic.  As a result, we are operating remotely during the next few weeks and remain 100 percent committed to providing uninterrupted service to our clients during these trying times. We encourage communication through email but remain available via telephone, if preferred. We are hopeful that this situation will be temporary and that we can soon resume our customary business practices.

 

Stay healthy and safe!!

 

Update for June 5, 2020:  Since our implementation of social distancing measures, we have remained and continue to remain entirely committed to providing our clients the best service, and we will continue to do so throughout the current health emergency.  We have also been uncompromising in our security practices while armed with the knowledge that businesses are more vulnerable to attack in times like these. If you need anything, please do not hesitate to reach out to us at (305) 697-8690, or contact one of our attorneys directly by email using the contact information on our website.

 

CORONAVIRUS RELIEF RESOURCES FOR SMALL BUSINESSES:

 

The U.S. Small Business Administration 

 

  • Disaster Loan Assistance. Low-interest federal disaster loans up to $2 million for working capital to small businesses suffering substantial economic injury as a result of temporary losses caused by the coronavirus pandemic (COVID-19). The interest rate is 3.75% for small businesses, and 2.75% for non-profits. Small business owners in all U.S. states and territories are currently eligible to apply. Click here for more information.
     

  • Paycheck Protection Program (PPP). Loan of up to $100 million for any small business in operation as of February 15, 2020 with fewer than 500 employees. The loan is available to sole proprietorships, independent contractors and self-employed persons as well as private non-profit organization or 501(c)(19) veterans organizations affected by the COVID-19 crisis.  Loan has a maturity of 2 years and an interest rate of .5%. The loan is 100% backed by the federal government and made available thru the federal government’s partnership with participating banks. The loan will be partly or fully forgiven if proceeds are used for payroll costs, interest on mortgages, rent, and utilities. Small businesses and other eligible entities will be able to apply if they were harmed by COVID-19 between February 15, 2020 and June 30, 2020. Loans are available through June 30, 2020.

Frequently Asked Questions on PPP

  • Click here for more information. Check with your bank to see if it participates and offers this program to its customers.
     

  • Economic Injury Disaster Loans (EIDL) & Emergency Economic Injury Grants ("EEI Grants").  provide an emergency advance of up to $10,000 to small businesses and private non-profits harmed by COVID-19 within three days of applying for an SBA Economic Injury Disaster Loan.  To access the advance, you first apply for an EIDL and then request the advance. The advance does not need to be repaid under any circumstance, and may be used to keep employees on payroll, to pay for sick leave, meet increased production costs due to supply chain disruptions, or pay business obligations, including debts, rent and mortgage payments.

    Frequently Asked Questions on EIDL and EEI Grants

    Click here for more information.

Florida Small Business Emergency Bridge Loan

 

  • Short-term, interest-free working capital emergency bridge loans for up to $50K to small business owners throughout the state that have experienced economic damage as a result of COVID-19. Click here for more information.

  • General Business Qualifications:

    • Operating a legal business in Florida

    • Established prior to March 9, 2020

    • 2 to 100 employees

 

 
SMALL BUSINESS REORGANIZATION ACT OF 2019 (“SBRA”) - A NEW CHAPTER 11 TOOL FOR SMALL BUSINESSES

 

  • Small businesses are the backbone of the U.S. economy, comprising of 99% of all businesses and almost half of the entire workforce.

 

  • SBRA went into law on February 19, 2020, which streamlines the reorganization process by making it quicker, cheaper, and more effective for debtors.  Specifically, SBRA implements a new bankruptcy reorganization tool specifically catered for small business debtors with no more than $2,725,625 of aggregate noncontingent liquidated secured and unsecured debt (excluding insider debts) - - which debt limit is now temporarily increased to $7,500,000 as result of the COVID-19 pandemic.

 

  • SBRA Significant Changes that SAVE Small Business Debtors Time and Money:

 

  1.  The debtor remains as a debtor in possession, unless the court, for cause, orders otherwise. That means that the debtor still runs the business and generally has the same rights as in a typical Chapter 11 case;

  2. The debtor has exclusivity to file a plan of reorganization within 90 days after the bankruptcy is filed;

  3. In general, there is no committee of unsecured creditors;

  4. In general, there is no disclosure statement required;

  5. No payment of quarterly fees to the U.S. Trustee – the arm of the U.S. Department of Justice overlooking the bankruptcy process. However, the U.S. Trustee will still have the same responsibilities as in a regular Chapter 11 case.

  6. Court appoints a “Subchapter V Trustee”, a trustee with limited duties and powers whose role is to facilitate the development of a consensual plan, and in certain circumstances, make distributions under the plan

  7. Plan of reorganization can be confirmed much easier under SBRA. In particular:

    • The debtor the ability to confirm a plan without having any creditors vote to accept the plan. The debtor, however, must still meet all of the other requirements for confirmation of a plan in a regular Chapter 11 case. This should lead to more consensual plans, as creditors realize that the leverage has shifted more in the debtor’s favor.

    • The act does away with the absolute priority rule. Absolute priority, also known as "liquidation preference," is a rule governing the order of payment among creditors and shareholders, in the event of a corporate liquidation. The absolute priority rule is used in corporate bankruptcies, to decide the portion of payment under a plan of reorganization should be made to each participant.  The more flexible rule under SBRA allows business owners a greater opportunity to retain their ownership interests.

    • SBRA modifies cramdown rules. In a typical Chapter 11 case, if a certain number of accepting votes are not attained, then certain additional requirements apply to confirm a plan, called a Chapter 11 cramdown. The act modifies the cramdown rules relating to unsecured creditors by requiring that all of the projected disposable income of the debtor to be received in a period of time ranging from three to five years must be applied to payments under the plan (or the value of the property to be distributed must not be less than the projected disposable income). This is a much simpler and straightforward way to confirm a plan when there are insufficient accepting votes

  8. Specific Benefits SBRA Provides to Individual Debtors

    • A corporate Chapter 11 will generally, with few exceptions, only resolve the debt of the company, and not the personal guarantees of the business owner(s).

    • Business owners were currently restrained to choose between a Chapter 7 liquidation, a Chapter 13 reorganization or an individual Chapter 11 reorganization, which has many of the same harsh requirements as that of a corporate debtor.  Chapter 13 has stringent debt limitations, currently set at $394,725 to be eligible to file under Chapter 13.

    • SBRA creates a new opportunity for business owners with unsecured debts greater than the amount to qualify for Chapter 13 but less than the debt ceiling of $2,725,625 of aggregate noncontingent liquidated secured and unsecured debt (excluding insider debts) - - which debt ceiling, as mentioned above, is now temporarily increased to $7,000,000 as result of the COVID-19 pandemic. 

    • When compared to Chapter 13, SBRA provides the following benefits:

      • ​​The ability to repay debt over a longer period of time than in a Chapter 13;

      • ​​Utilization of a more relaxed definition of disposable income;

      • ​​The ability to obtain a discharge before the completion of plan payments; and

      • ​​The ability to modify certain residential mortgages, if the underlying loan was not used to acquire the residence and was primarily used in connection with the small business. 

 

Struggling small businesses and their owners should strongly consider SBRA as a potential remedy to their financial problem.

CORONAVIRUS & FORCE MAJEURE

 

Can force majeure save you from financial losses caused by the Coronavirus?

 

Coronavirus outbreak has caused significant business interruptions. Some businesses are hoping to invoke force majeure clause to excuse nonperformance of contracts, especially commercial leases.

 

What is force majeure?

 

Force majeure excuses contractual nonperformance, when the nonperformance is caused by unforeseen events beyond the control of both parties that either make contract performance impracticable or frustrate the purpose of the performance.

 

Does COVID-19 qualify as a Force Majeure Event?

 

The World Health Organization declared COVID-19, aka Coronavirus, a pandemic. Many states, including Florida, have declared state of emergency as a result of the health crisis.  Therefore, if the force majeure clause stipulates specific events such as epidemics, quarantine, biological contamination or other public health emergency, Coronavirus is very likely to fall under this definition. In the aftermath of the 2003 SARS outbreak, courts in the PRC held that the outbreak was in the category of an epidemic for the purposes of force majeure, although that interpretation was not applied consistently elsewhere. If the force majeure clause is silent on pandemics, Coronavirus will not automatically constitute a force majeure. However, given that government announced restrictions on travel, movement, and large gatherings, another possible argument is “acts of government.” For example, some restaurants and bars, which are shutdown as a result of governmental order, as tenants in a commercial lease, might be able to invoke force majeure clause.

 

Companies invoking force majeure need to show that it is effectively impossible to perform their contractual duties as a result of breakout. Without governmental orders or regulations that make performance impossible, tenants’ nonperformance is unlikely to be excused only because of economic factors. For instance, commercial tenant to not construct new restaurant did not excuse its nonperformance pursuant to ground lease agreement's force majeure clause, even if global economic downturn caused drastic decline of tenant's stock price, forcing it to divert funds to meet its debt obligations and leverage thresholds, where parties' agreement limited contemplated force majeure events to those beyond nonperforming party's control, and tenant's decisions regarding allocation of its resources were within its control. Route 6 Outparcels, LLC v. Ruby Tuesday, Inc., 88 A.D.3d 1224, 931 N.Y.S.2d 436 (2011). Regardless, the party seeking to rely on the event of force majeure should give notice to the other party within a specified period.

 

What if the contract doesn’t have force majeure clause? 

 

If a force majeure clause is absent from a contract, parties can still rely on the common law defenses:

 

  • Impossibility: performance is no longer objectively possible because of a supervening event.

  • Impracticability: a supervening event changes the inherent nature of performance, causing it to become more difficult, complex, or challenging, thereby contravening a basic assumption of the parties’ contract.

  • Frustration of purpose: when an unforeseen event undermines a party's principal purpose for entering into a contract, and both parties knew of the principal purpose at the time contract was made, the contract will be terminated.

 

In short, it is critical for the parties to stay calm and keep proactively and openly communicating with each other.

 

SARDI LAW stands ready to assist and review your contractual provisions.