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REAL ESTATE DEVELOPER FILES LAWSUIT SAYING COVID-19 EVENTS ENTITLED IT TO DELAY PURCHASE OF PROPERTY
W. Mark Mullineaux, Esq. firstname.lastname@example.org, 610-291-3850 A California retail developer filed a lawsuit declaring COVID-19 and government shutdowns force majeure events entitling it to delay closing on $4.2 million property purchase from ExxonMobil. Pacific Collective, LLC v. Exxonmobil Oil Corp., Complaint, No. 20STCV13294 (Cal. Sup. Ct. Filed Apr. 3, 2020). Force majeure translates to “superior force” in French and it is a term in a contract that frees a party from a contract obligation when an “extraordinary event” or “act of God” prevents it from performing. The purchase agreement has a force majeure clause, but it does not include pandemics, epidemics, or contagions. Nonetheless, Pacific Collective argues that to close on the purchase would require it to commit acts that would be crimes under stay-at-home orders. Pacific Collective says that the orders prevent it from using construction workers, architects, inspectors, and other persons necessary to redevelop the property; and it cannot develop the property in the manner that was a core assumption of the agreement Exxon claims that Pacific Collective is delaying because it lost its tenant and financing, events outside the force majeure clause. Exxon also says that construction is designated as an “essential” business and may operate under the stay at-home orders. The purchase contract is dated February 7, 2020 and Pacific Collective invoked force majeure on March 30, 2020, one day before the closing date. Three days later, Exxon said the sale was cancelled and Exxon would keep the down payment of $120,000. Pacific Collective seeks $7.9 million in damages and an injunction prohibiting Exxon from selling the property to someone else. This could be a leading case on declaration of force majeure in COVID-19 cases. The fact that an injunction is sought may result in a quick decision. The case will involve both the legal issue of when force majeure applies plus a resolution of the factual dispute on whether the delay was actually caused by COVID-19 events. Click here to download White Paper WMM 4/28/2020
CONGRESS APPROVES ADDITIONAL $310 BILLION OF FUNDING TO REPLENISH PAYCHECK PROTECTION PLAN LOAN PROGRAM
On April 24, 2020, Congress passed, and President signed, an additional $310 Billion of funding to replenish the Paycheck Protection Plan (PPP) after the initial $350 billion of the program’s funding was exhausted. Applications for new funding will be accepted on April 27, 2020. While the PPP program was lauded by businesses and the public at large, the roll out of the program has been criticized as providing PPP funding to large well capitalized businesses with access to the financial resources to keep them afloat during COVID-19 shutdown. The programs rules were lax enough to permit PPP loans to be issued to publicly traded companies with excess cash on hand, including to Ruth’s Chris Steakhouse ($20 million PPP loan), Shake Shack ($10 million PPP loan) and Potbelly ($10 million PPP loan). Within the initial thirteen days of accepting applications, PPP funds were exhausted without providing the small businesses with the funding that was intended to help those businesses survive COVID 19 shutdowns and stay at home orders. In order to correct the criticism of the allocation PPP funds, the second round of funding for the PPP has targeted small businesses as beneficiaries by setting aside $30 billion of funds for community development, financial institutions, banks and credit unions with less than $10 billion in assets, and an additional $30 billion banks and credit unions with assets between $10 billion and $50 billion in assets. As an additional protective measure, businesses applying for PPP loans must now certify that the loans are necessary and that do not have access other sources of funding to continue to make payroll and pay other business expenses during the COVID shut down. In addition to the $310 billion allocated to the PPP, an additional $60 billion has been allocated to the Economic Injury Disaster Loan and Grant program, of which $50 billion will be directed to EIDL Loans and the remaining $10 billion will go towards EIDL Grants. For more information regarding the PPP Loans and EIDL Loans and Grants for small businesses please see this link: https://astorweiss.com/covid-19-financial-relief-available-to-small-businesses-2/ The attorneys at Astor Weiss’ Business Law Practice Group are here to help your company with any questions you may have about federal loan programs to get your business through these difficult times. Anyone with questions about how their business may benefit from the Paycheck Protection Program, the Economic Injury Disaster Loan program, or any other federal or state business assistance programs should contact one of the attorneys in this group, whose contact information is listed below: David Mandel, Managing PartnerTherese Allison, AssociateOffice: (215) 790-0100Office: (215) 790-0100Direct: (215) 893-4959Direct: (215) 893-4971Direct Fax: (215) 400-2255Direct Fax: (215) 400-2241Email: email@example.comEmail: firstname.lastname@example.org Stephen Green, Of Counsel Office: (215) 790-0100 Direct: (215) 751-1920 Fax: (215) 790-0509
STATUS OF MORTGAGE FORECLOSURES IN PENNSYLVANIA AND IMPACT OF THE CARES [COVID-19] ACT
Despite Court Orders and the just passed Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), in Pennsylvania lenders on mortgages that are not “Federally Backed” may still file and serve mortgage foreclosure complaints, default judgments and writs of execution so that properties are ready for Sheriff’s sale when Sheriffs reopen to sell properties. The CARES Act provides that through May 17, 2020 there is a moratorium on foreclosure actions on “Federally Backed” Mortgage Loans and on service of non-judicial notice of intent to foreclose. Also, a borrower who affirms financial hardship due to the COVID-19 emergency shall be granted a forbearance of up to 360 days. I. The CARES Act’s prohibitions only apply to Federally Backed Mortgage Loans Mortgage foreclosures are dealt with in the CARES Act in TITLE IV, Subtitle A, Sections 4022 (1 to 4 families) and 4023 (more than 4 families). This report deals with Section 4022 and not Section 4023. CARES Act Section 4022 applies only to federally backed mortgage loans. Under the CARES Act, a “federally backed mortgage loan” is secured by a lien on real property with 1-4 families insured, guaranteed, made, purchased or securitized by the FHA, Federal Home Loan Mortgage Corporation or the Federal National Mortgage Association or other federal agencies (“Federally Backed Mortgage Loan”). II. For Federally Backed Mortgage Loans, there is a Moratorium through May 17, 2020 on Foreclosure Actions and Notices of Intent to Foreclose The CARES Act Section 4022 (c)(2) provides that a servicer of a Federally Backed Mortgage Loan may not initiate “any judicial or non-judicial foreclosure process,” move for a foreclosure judgment, sale order or eviction through May 17, 2020. That stays Foreclosure actions and service of Notices of Intent to Foreclose. A Notice of Intent is required in Pennsylvania before a mortgage foreclosure complaint can be filed. It is a step in the process of mortgage foreclosure and therefore forbidden through May 17, 2020. III. The CARES Act Provides Forbearance for Borrowers who Affirm Financial Hardship Due to COVID-19 It is not difficult for a borrower to receive forbearance from a mortgage servicer. A borrower may submit a request to the servicer for forbearance for financial hardship due, directly or indirectly, to the COVID–19 emergency. The CARES Act Section 4022 (c)(1) provides that a servicer upon receiving a request for forbearance “shall with no additional documentation required other than the borrower’s attestation to a financial hardship caused by the COVID–19 emergency and with no fees, penalties, or interest…provide the forbearance for up to 180 days.” (Emphasis added). That may be extended for up to an additional180 days at the request of the borrower. IV. Mortgage Foreclosure in Pennsylvania State Courts Today April 1, 2020, the Pennsylvania Supreme Court extended the closure to the public of all Pennsylvania state courts through April 30, 2020. The state courts, however, are accepting filing of complaints and process servers are open for business and serving complaints on defendants. The Pennsylvania Supreme Court orders do not prohibit mortgage foreclosure complaints, default judgments and writs of execution requesting placement on a Sheriff’s sale list. The Court ordered the following restrictions during the “emergency period:” no officer, official, or other person employed by the Pennsylvania Judiciary at any level shall effectuate an eviction, ejectment, or other displacement from a residence based upon the failure to make a rent, loan, or other similar payment. Nothing herein is intended to preclude requests for orders of possession resulting from judgments entered in landlord-tenant actions to be filed by mail. However, any execution on an order of possession is stayed to a date on or after April 3, 2020, subject to further orders. The limitations apply to acts that remove a person from residence and not acts prior to the actual eviction. The clause specifically allows for filing a request for order of possession and the stay only applies to the final act of the court executing the order of possession. The acts of filing a complaint, taking a default judgment (which occurs often) and filing a writ of execution to place the property on Sheriff’s sale list do not remove a person from a residence. Those acts are not forbidden. At this time a property cannot be sold at a Sheriff’s sale because Sheriff’s sales have been postponed. Lenders, however, at this time may accomplish the prerequisites for such sales and the property will be placed on the Sheriff’s sale list once those sales start again. Note that in the Court of Pleas of Philadelphia there is an additional step that cannot be accomplished now because required conciliation conferences between lender and borrower have been postponed. I. Mortgage Foreclosure in Pennsylvania Federal Courts In Pennsylvania, usually foreclosure actions are filed in state court and not federal court. State courts and Sheriffs have more experience handling mortgage foreclosure sales than federal courts and federal Marshalls. To file in federal court the lender has to prove jurisdiction- either diversity (plaintiff(s) and defendant(s) are citizens of different states) or the case involves a question of federal law (not present in standard foreclosure case). The additional step of litigating jurisdictional issues may delay the case and the sale of the property. Generally, filing in state court remains the best option. If at some point it turns out that the COVID-19 pandemic causes more severe delays in the state courts than the federal courts, filing in federal court should be considered in cases where it is clear that the court would have jurisdiction. Download the White Paper WMM 4/1/2020
WHEN CAN CONTRACT DUTIES BE SUSPENDED OR TERMINATED BECAUSE OF THE CORONAVIRUS PANDEMIC?
The coronavirus (COVID-19) pandemic has impacted the ability of businesses to perform contractual duties. Governments around the world, including the United States and U.S. states, have imposed prohibitions on going to work, leaving home, meetings, travel, eat-in restaurants, and other limitations. This paper discusses when a party may have a legal defense if it elects to not perform contract obligations. The defenses of Force Majeure, frustration and impracticability are explored. Force Majeure A Force Majeure clause (French for “superior force”) is a contract provision that allows a party to suspend or terminate the performance of duties under a contract. The scope of protection and remedies are established by the language of the contract. This is an example of a Force Majeure clause: Force Majeure. A party shall not be liable for any failure of or delay in the performance of this agreement for the period that such failure or delay is due to any strike, lockout, civil commotion, war like operation, invasion, rebellion, hostilities, military or usurped power, sabotage, governmental regulations or control, or through act of God (“FORCE MAJEURE”). Performance is not excused if performance resulted from general economic conditions. As examples, other triggering events in a Force Majeure clause could be fire, flood, hurricane, typhoon, earthquake, lightning and explosion or pandemic. A Force Majeure clause may provide that a party must take steps to mitigate the impact. When it first becomes known that a party will rely on Force Majeure, that party should send a formal written declaration of Force Majeure to the other parties to the contract. Under Pennsylvania law, the event alleged as an excuse must have been beyond the party’s control and not due to any fault or negligence by the non-performing party. Martin v. Commonwealth, 548 A.2d 675, 678 (Pa. Commw. 1988). The non-performing party must show that they took action to attempt to perform the contract regardless of the Force Majeure event. Gulf Oil Corp. v. Fed.Energy Regulatory Comm’n, 706 F.2d 444, 452 (3d Cir. 1983). Many Force Majeure clauses in effect today do not list pandemic, epidemic or disease. Without that language at first blush it may appear that the Force Majeure defense does not apply to performance impacted by COVID-19. A defense may be available, however, if the clause covers governmental regulations and those regulations had a serious negative impact on performance. Further, the world-wide recognition of the need to control COVID-19 and government’s “stay at home” orders may result in courts being more liberal in approving a Force Majeure defense. Impracticability or Frustration If there is no Force Majeure clause in a contract or if the clause does not provide protection, a party to avoid performance may rely on the common law doctrines of “frustration” or “impracticability.” In Pennsylvania it is difficult to meet the requirements for those defenses. As a general principle, a party assumes the risk of incapacity to perform its contractual duties. Craig Coal Mining v. Romani, 513 A.2d 437 (Pa. Super. 1986). To use frustration or impracticability as a defense for non-performance, the cost of performance must become so excessive and unreasonable that the failure to excuse performance would result in “grave injustice.” Gulf Oil Corp. v. Federal Power Commission, 563 F.2d 588, 599 (3rd Cir.1977), cert. denied, 434 U.S. 1062 (1977). As soon as it is known, a formal written declaration of frustration or impracticability should be sent to the other parties to the contract. In Dorn v. Stanhope Steel, Inc., 534 A.2d 798, 811-812 (Pa. Super 1987), appeal denied, 544 A.2d 1342 (1988), the court said performance may be considered “impracticable” and excused because of extreme and unreasonable difficulty, expense, injury, or loss, such as severe shortage of raw materials or of supplies due to war, embargo, local crop failure or unforeseen shutdowns; or performance will involve a risk of injury to person or to property. Increases in costs unless well beyond the normal range, do not amount to impracticability. Id. citing Restatement (Second) of Contracts § 261. A party must establish that the act contemplated is incapable of being performed, rather than the fact that he or she is incapable of performing it. Luber v. Luber, 614 A.2d 771, 774 (Pa. Super.1992), appeal denied, 631 A.2d 1008 (Pa. 1993). The doctrine of frustration provides that the duty to perform is discharged when a party’s principal purpose is substantially frustrated without his fault and there is a violation of a basic assumption on which the contract was made. Stanhope Steel, supra at 811-812, citing Restatement (Second) of Contracts § 265. The doctrine applies if events occur that result in a situation radically different from the contemplation of the parties when the contract was made. Courts typically require proof of “impossibility” of performance in order to allow the defense of frustration. In Stanhope Steel, supra, defendant was losing vast amounts of money for 4 years, defendant’s largest creditor would no longer advance funds and defendant did not have enough money to pay its operating expenses and payroll costs. The court held that the defenses were not established because defendant failed to show a change in the business environment that was well beyond the normal range. Although the standard is high, courts have provided relief under defenses of impracticability and frustration. In Aluminum Co. of Am. v. Essex Grp., Inc., 499 F. Supp. 53 (W.D. Pa. 1980), a federal district court in Pennsylvania, held that under Indiana’s doctrines of impracticability and frustration of purpose, seller was entitled to reformation of a long-term contract where seller’s production costs rose greatly beyond the foreseeable risk and where, without judicial relief, seller stood to lose in excess of $60 million out of pocket during remaining term of contract. In Riger v. Maloney, 2014 WL 10919548, at *3 (Pa. Super. 2014)(not precedential), the court ruled performance of transferring a 401(k) account was suspended because a necessary document was located in a file with Superior Court and the duty of transferring the funds could not be carried out. In Murray v. Willistown Twp., 169 A.3d 84, 92-93 (Pa. Super. 2017), the court cited impracticability of performance and applied a reformation of a contract after certain insurance coverage required in the contract became unavailable. Parties will be urging courts to hold that the unique obstacles caused by COVID-19 support a defense of impracticality or frustration. Given the unprecented impact of the disease, courts may feel compelled to allow those defenses. Moving Forward Any decision on whether to declare Force Majeure, frustration or impracticability requires a detailed analysis based on the particular facts faced by a company and the applicable law. As an example, a company should evaluate whether their counterparties to contracts may declare justifiable release from performance. Some companies will be on both sides of this issue, as the performing party in some cases and the receiving party in others. Companies should look at both possibilities before taking a formal position on whether to declare Force Majeure, frustration or impracticability. Download the White Paper W. Mark Mullineaux, Esq. 610-291-3850 email@example.com
COVID 19 FINANCIAL RELIEF AVAILABLE TO SMALL BUSINESSES
UPDATED PER SBA GUIDANCE ISSUED APRIL 3RD 2020 by Therese Allison Over the last month businesses and their employees have questioned how they will survive the recent economic downturn. As of April 1, 2020, in response to the global COVID-19 pandemic, approximately 85% of the population in the United States is under state or local orders to stay at home, and the majority of states have closed schools and businesses that do not provide life sustaining services. More recently, some states especially hard hit by COVID-19 have received designations as major disaster areas. While there is no clear time frame when this halt to our economic, educational and social engine will end, the massive toll that these closures will have on businesses and on individual employment is predictable. Fortunately, the federal and state governments are taking action to assist businesses and their employees survive in these uncertain times. The CARES Act Paycheck Protection Program In light of the anticipated and unprecedented toll on the welfare of this country Congress has approved the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act) to provide financial relief to individuals and businesses. Small businesses can benefit from the $349 million dollars allocated through the CARES Act’s Paycheck Protection Program (the PPP). The program, enacted to help businesses retain their employees and meet their business expense obligations during this economic downturn, provides federally guaranteed low interest SBA loans that do not require collateral or guarantees from the borrower, and that may be forgiven if businesses use loan proceeds for permitted purposes and maintain their payroll through June 30, 2020. Paycheck Protection Loan Eligibility Requirements The PPP, enacted as part of Title I to the CARES Act, is intended to protect small businesses from interruption due to the COVID-19 Pandemic. PPP loans are currently available to small businesses that were in operation before February 15, 2020, to assist in payment of employee payroll and other businesses expenses incurred during this period of business closures and stay at home orders. PPP loans have a two-year term, a fixed interest rate of 1%, no pre-payment penalties, and no personal guaranty or collateral requirements. Further, payments will be deferred for a period of six months from the loan origination date. Businesses qualify as a “small business” under the Act if they have fewer than 500 employees (whether those employees are full time, part time or any other employment status); qualify as a small business under the SBA’s size standards; or operate as a sole proprietor, independent contractor or self-employed business. In addition, the Act applies the 500 employee limitation on a per location basis for businesses in the food services and accommodation sector (any NAICS Code beginning with 72). Amount of Loan and Permitted Use of Proceeds Qualifying small businesses are eligible for loans up to 2.5 times the borrower’s average monthly payroll costs incurred over the twelve month period prior to the loan application, up to a maximum amount of $10 Million, the funds of which may be applied to expenses incurred by the borrower during any time period between February 15, 2020 and June 30, 2020. “Payroll Costs” are defined as all employees’ salary, wages, tips, commissions, or similar compensation, but excluding the portion of any employee’s salary that exceeds $100,000; payment for vacation, family, medical, or sick leave; compensation for separation or dismissal; payment for employee benefits including group healthcare including insurance premiums and retirement; and payment of state and local taxes assessed on compensation of employees. The funds from a PPP loan may only be used for payment of Payroll Costs, interest payment on mortgage obligations, rent payments, interest on other debt obligations, and utility payments (the “Permitted Purposes”). Loan Forgiveness Up to 100% of Paycheck Protection loans are eligible for forgiveness where the funds are used for Permitted Purposes. PPP loan forgiveness is contingent upon the borrower maintaining its payroll. If employees are laid off during the period between loan origination and June 30, 2020, the portion of the forgiveness available to the borrower will be reduced by the percentage decrease in the number of employees. Further, if the borrower’s total payroll expense for workers earning less than $100,000 is reduced by more than 25% the forgiveness will be reduced by that same amount. However, if employees previously laid off are rehired by June 30, 2020, full forgiveness may be available to the borrower. Where the loan is used for both Permitted Purposes and other purposes, only the portion of the funds used for Permitted Purposes are eligible for forgiveness. Applying for a PPP Loan Applications for PPP loans will be accepted by SBA lenders for the period beginning on April 3, 2020 and ending on June 30, 2020 and the $349 Billion of funds are available on a first come first serve basis. Applications must be made through an SBA qualified lender. Small business interested in PPP loans should contact their regular bank to inquire whether they are accepting such applications. The SBA has published a sample PPP loan application and SBA lenders are using the SBA’s form to create their own PPP Loan application form to be used by small business borrowers. A link to the sample SBA application can be found here: (https://www.sba.gov/sites/default/files/2020-04/PPP%20Borrower%20Application%20Form.pdf). This sample application should allow you to prepare the documentation you will need to submit with the application. Economic Injury Disaster Loan Program Under the CARES Act As illnesses mount and pressure on society to control the spread of the COVID-19 virus increases, states have begun applying to the federal government for declaration as major disaster areas. Disaster designations, such as the designation declared in Pennsylvania on March 30, 2020, make federal funding available to state and local governments and allow businesses to obtain assistance such as the Economic Injury Disaster Loan Program (the “EIDL”). The CARES Act created a new grant program to provide quick relief to businesses under the EIDL program where borrowers can receive up to $10,000 in the form of an EIDL grant to cover immediate payroll, mortgage, rent and additional expenses. The EIDL grant does not have to be repaid to the SBA. The traditional EIDL loan program, administered by the SBA, provides loan proceeds up to $2 Million to businesses located in federally designated disaster areas that incur economic losses as a result of such disasters. EIDL loans remain available to small businesses and may be an alternative to PPP loans. These loans are offered at an interest rate of 3.75% with a repayment term of up to 30 years. The proceeds of these loans may be used to pay fixed debt, payroll, accounts payable and other obligations that a business may be unable to meet as a result of the impact of the disaster. The SBA’s April 3, 2020 guidance clarified that borrowers that received an EIDL loan between January 1, 2020 and April 3, 2020 and used the EIDL funds to pay for payroll costs must refinance its EIDL into the PPP loan. The recent guidance did not clarify whether a borrower with a pending application for an EIDL loan will be eligible to receive a PPP loan. It is clear, however, that EIDL grants issued to small business borrowers will be deducted from PPP funds that are forgiven. Small business borrowers should consult with their SBA lender before submitting any loan or grant application. The attorneys at Astor Weiss’ Business Law Practice Group are here to help your company with any questions you may have about federal loan programs to get your business through these difficult times. Anyone with questions about how their business may benefit from the Paycheck Protection Program, the Economic Injury Disaster Loan program, or any other federal or state business assistance programs should contact one of the attorneys in this group, whose contact information is listed below: David Mandel, Managing Partner Office: (215) 790-0100 Direct: (215) 893-4959 Direct Fax: (215) 400-2255 Email: firstname.lastname@example.org Therese Allison, AssociateOffice: (215) 790-0100Direct: (215) 893-4971Fax: (215) 400-2241Email: email@example.com Stephen Green, Of CounselOffice: (215) 790-0100Direct: (215) 751-1920Fax: (215) 790-0509Email: SGreen@astorweiss.com
COVID 19 FINANCIAL RELIEF AVAILABLE TO SMALL BUSINESSES
Author: Therese Allison Over the last month businesses and their employees have questioned how they will survive the recent economic downturn. As of April 1, 2020 approximately 85% of the population in the United States is under state or local orders to stay at home, and the majority of states have closed schools and businesses that do not provide life sustaining services in response to the global COVID-19 pandemic. More recently, some states especially hard hit by COVID-19 have received designations as major disaster areas. While there is no clear time frame when this halt to our economic, educational and social engine will end, the massive toll that these closures will have on businesses and on individual employment is predictable. Fortunately the federal and state governments are taking action to assist businesses and their employees survive in these uncertain. The CARES Act Paycheck Protection Program In light of the anticipated and unprecedented toll on the welfare of this country Congress has approved the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act) to provide financial relief to individuals and businesses. Small businesses can benefit from the $349 Billion dollars allocated through the CARES Act’s Paycheck Protection Program (the PPP). The program, enacted to help businesses retain their employees and meet their business expense obligations during this economic downturn, provides federally guaranteed low interest SBA loans that do not require collateral or guarantees from the borrower, and that may be forgiven if businesses use loan proceeds for permitted purposes and maintain their payroll through the end of June, 2020. Paycheck Protection Loan Eligibility Requirements The PPP, enacted as part of Title I to the CARES Act, is intended to protect small businesses from interruption due to the COVID-19 Pandemic. PPP loans are available to small businesses that were in operation before February 15, 2020 to assist businesses in maintaining employees on their payroll and paying other businesses expenses incurred during this period of business closures and stay at home orders. PPP loan terms will be two years and with a fixed interest rate of 0.5%, will have no pre-payment penalties Also, loan payments will be deferred for a period of six months from the loan origination date. A business will qualify as a “small business” under the Act if it has fewer than 500 employees (whether those employees are full time, part time or any other employment status); qualifies as a small business under the SBA’s size standards; or operates as a sole proprietor, independent contractor or self-employed business. In addition, the Act applies the 500 employee limitation on a per location basis for businesses in the food services and accommodation sector (any NAICS Code beginning with 72). Amount of Loan and Permitted Use of Proceeds Qualifying small businesses are eligible for loans up to 2.25 times the borrower’s average monthly payroll costs incurred over the twelve month period prior to the loan application, up to a maximum amount of $10 Million, the funds of which may be applied to expenses incurred by the borrower during any time period between February 15, 2020 and June 30, 2020. In calculating payroll costs, any employee whose salary exceeds $100,000 annually, must be capped at that number. The funds from the loan may only be applied to payroll costs, excluding prorated costs of salaries over $100,000 per year for any individual, costs related to the continuation of health care benefits, employee salary and commissions, interest payment on mortgage obligations, rent payments, interest on other debt obligations, and utility payments (the “Permitted Purposes”). Loan Forgiveness Up to 100% of Paycheck Protection loans are eligible for forgiveness where the funds are used for Permitted Purposes. PPP loan forgiveness is contingent upon the borrower maintaining its payroll. If employees are laid off during the period between loan origination and June 30, 2020, the portion of the forgiveness available to the borrower will be reduced by the percentage decrease in the number of employees. Further, if the borrower’s total payroll expense for workers earning less than $100,000 is reduced by more than 25% the forgiveness will be reduced by that same amount. However, if employees previously laid off are rehired by June 30, 2020, full forgiveness may be available to the borrower. Where the loan is used for both Permitted Purposes and other purposes, only the portion of the funds used for Permitted Purposes are eligible for forgiveness. Applying for a PPP Loan It is presently anticipated that applications for PPP loans will be available on April 3, 2020. Applications must be made through an SBA qualified lender. You should contact your regular bank to see if they are accepting such applications. While the final form of application has not been published yet, SBA has published a preliminary form and it is expected that the final form will be very similar, if not identical. Here is a link to that application. This should allow you to prepare the documentation you will need to submit with the application. Economic Injury Disaster Loan Program Under the CARES Act As illnesses mount and pressure on society to control the spread of the COVID-19 virus increases, states have begun applying to the federal government for declaration as major disaster areas. Disaster designations, such as the designation declared in Pennsylvania on March 30, 2020, make federal funding available to state and local governments and allow businesses to obtain assistance such as the Economic Injury Disaster Loan Program (the “EIDL”). The CARES Act created a new grant program to provide quick relief to businesses under the EIDL program where borrowers can receive up to $10,000 to cover immediate payroll, mortgage, rent and additional expenses. The EIDL grant does not have to be repaid to the SBA. The traditional EIDL loan program, administered by the SBA, provides loan proceeds up to $2 Million to businesses located in federally designated disaster areas that incur economic losses as a result of such disasters. EIDL loans remain available to small businesses, and may be an alternative to PPP loans. These loans are offered at an interest rate of 3.75% with a repayment term of up to 30 years. The proceeds of these loans may be used to pay fixed debt, payroll, accounts payable and other business obligations that a businesses in unable to meet as a result of the impact of the disaster. The current EIDL and PPP regulation guidance is unclear as to whether borrowers will receive a PPP loan if an application for an EIDL loan or grant is pending. In the event that EIDL grants are permitted upon the issuance of a PPP loan the amount of any EIDL grant issued will be deducted from the amount forgiven under the PPP loan. If an EIDL loan is issued prior to a PPP loan, a borrower may be able to refinance the EIDL loan into the PPP loan program. However, small business borrowers should consult with their SBA lender before submitting any loan application. The attorneys at Astor Weiss’ Business Law Practice Group are here to help your company with any questions you may have about federal loan programs to get your business through these difficult times. Anyone with questions about how their business may benefit from the Paycheck Protection Program, the Economic Injury Disaster Loan program, or any other federal or state business assistance programs should contact one of the attorneys in this group, whose contact information is listed below: David Mandel, Managing Partner Office: (215) 790-0100 Direct: (215) 893-4959 Direct Fax: (215) 400-2255 Email: firstname.lastname@example.org Therese Allison, Associate Office: (215) 790-0100 Direct: (215) 893-4971 Direct Fax: (215) 400-2241 Email: email@example.com Stephen Green, Of Counsel Office: (215) 790-0100 Direct: (215) 751-1920 Fax: (215) 790-0509 Email: SGreen@astorweiss.com
Businesses Should Determine Whether Non Performance of Contracts May Be Excused by the COVID-19 Pandemic
In this time of uncertainty, businesses should examine their contracts to analyze the risk of non-performance of obligations and to identify force majeure clauses in light of the COVID 19 pandemic. Force majeure clauses, and the common law doctrine of impracticability, may excuse non-performance upon the occurrence of unanticipated events that are not within the control of either party. The restrictions imposed upon individuals and businesses as a result of the COVID-19 pandemic may excuse performance under contract or common law. On March 11, 2020 the World Health Organization declared the COVID-19 outbreak to be a pandemic. Public health officials have relayed dire warnings about the potential global impact of the spread of infection in the absence of severe restrictions on contact between people. In an effort to stop or slow the spread of COVID-19 unprecedented restrictions have been imposed upon businesses, schooling, travel, and gatherings in both the United States and worldwide. According to the New York Times, as of March 20, 2020 approximately one in four people in this country have been ordered to stay home by their state or local governments. Many states have ordered all businesses that do not provide life sustaining services to close or move to online platforms, schools be shuttered, and events be cancelled or postponed indefinitely. On March 19, 2020 Pennsylvania’s Governor Tom Wolf ordered that non-essential businesses and government offices close and mandated that all restaurants and bars restricted their food service to take out or delivery. This list was updated on March 20, 2020. (https://www.scribd.com/document/452553026/UPDATED-5-45pm-March-21-2020-Industry-Operation-Guidance). All non-essential government offices and all non-essential courts hearings and matters in the Commonwealth have been closed or rescheduled. Further, effective as of March 23, 2020 the residents of the counties of Allegheny, Bucks, Chester, Delaware, Monroe, Montgomery and Philadelphia have been ordered to stay at home. The impact to businesses throughout this country will be severe. Supply chains have or will become disrupted or delayed, businesses may be required to close for an indeterminate amount of time and state and local offices and courts will remain closed until further notice. These measures have effectively shut down a large portion of the country’s economic engine, the long-term ramifications of which are unknown. While parties may attempt to rely on a force majeure clause to excuse performance as a result of COVID-19 restrictions, the specific language of the force majeure or risk management clause to a contract will determine whether state and local mandates will entitle the parties to relief. In Pennsylvania force majeure clauses permit one or both parties’ non-performance of contractual obligations when the force majeure event is “beyond the party’s control and not due to any fault or negligence by the non-performing party.” Gulf Oil Corp. v. Federal Energy Regulatory Commission, 706 F.2d 444 (3d Cir.1983), cert. denied, 464 U.S. 1038, 104 S.Ct. 698, 79 L.Ed.2d 164 (1984). However, “the non-performing party has the burden of proof as well as a duty to show what action was taken to perform the contract, regardless of the occurrence of the excuse.” Id. Even in the absence of, or in the alternative to a force majeure clause, businesses may invoke the common law doctrine of impracticability of performance of contractual obligations. The doctrine of impracticability permits parties to a contract to waive obligations or terminate an agreement where performance by one party is impracticable through no fault of the nonperforming party. West v. Peoples First National Bank & Trust Co., 378 Pa. 275, 106 A.2d 427 (1954). Similarly, parties subject to the UCC may be excused from performance pursuant to UCC §2-615 upon the occurrence of an event that was not anticipated by the parties, or when compliance with government regulation, renders performance of the contract impracticable. Businesses should review their contracts, including the facts underlying the breach or potential breach, the specific force majeure clause and effects of COVID-19 restrictions on their business, and should communicate with business partners early and often regarding their circumstances, to ensure effective resolution to performance disputes. The attorneys at Astor Weiss’ Business Law Practice Group are here to help your company scrutinize your existing contracts to identify potential contractual clauses as well as relevant facts and circumstances regarding performance obligations in light of recent mandates and changes to business in your locality. Anyone with questions about how their contractual obligations may be affected by COVID-19 should contact one of the attorneys in that practice group whose contact information is listed below: David Mandel, Managing Partner Therese Allison, Associate Office: (215) 790-0100 Office: (215) 790-0100 Direct: (215) 893-4959 Direct: (215) 893-4971 Direct Fax: (215) 400-2255 Direct Fax: (215) 400-2241 Email: firstname.lastname@example.org Email: email@example.com Alan Molod, Of Counsel Stephen Green, Of Counsel Office: (215) 790-0100 Office: (215) 790-0100 Fax: (215) 790-0509 Direct: (215) 751-1920 Email: firstname.lastname@example.org Fax: (215) 790-0509 Email: SGreen@astorweiss.com
The Test: Does the European General Data Protection Regulation Apply to Your Business Operating in the USA?
Notice of Increased Real Estate Tax Assessments
Notices of Increased Real Estate Tax Assessments in the City of Philadelphia The Office of Property Assessment, starting in April, has sent owners of commercial and industrial properties in Philadelphia notices of reassessment of property values. This involved a thorough analysis of some of Philadelphia’s most complex and high-valued parcels, including hotels, office buildings, and apartment buildings. Also reassessed were all retail properties, warehouses, commercially-zoned vacant land, and properties with multiple uses. The new property values take effect for Tax Year 2018, with property taxes due on February 28, 2018. Written notices of the new values are being mailed and, for comparison, can be seen at http://www.phila.gov/OPA/Pages/PropertyInformation.aspx . Beginning in Fiscal Year 2018, the OPA will conduct annual reassessments of all 579,000 properties in the city, including residential and commercial. Condo units have been considered undervalued for assessment purposes and most are being increased substantially. Also, residential and commercial properties enjoying the benefit of the 10 year tax abatement will be affected. The abatements apply only to new improvements and there is no abatement on the tax on the land value. OPA has announced that it believes that land in the City is under assessed and these assessments will increase. Whether or not this will be matched by a decrease in assessed values of the buildings and improvements remains to be seen. We at Astor Weiss are staying on top of this situation and are in the process of filing appeals for clients. Please ask your questions and discuss the 2018 substantial increases in real estate taxes and the City Use and Occupancy Tax by calling Ron Glazer, David Mandel or Therese Allison at 215-790-0100. You may have us request a First Level Review (FLR) by filing no later than May 26, 2017. If you are not satisfied with the outcome of the review or decide to skip the FLR process altogether, you may have us file a Formal Appeal with the Board of Revision of Taxes (BRT). Formal appeals are due to the BRT by the first Monday in October (October 2, 2017).
MODERNIZED LAWS FOR NON-CORPORATE ENTITIES
On November 21, 2016 Act 107 was adopted by the Pennsylvania legislature, effective February 21, 2017, adopting a new partnership act, a new limited partnership act, and a new limited liability company act (LLCs). In addition revisions were made to the laws governing limited liability partnerships (LLPs) and limited liability limited partnerships (LLLPs). LLPs and LLLPs are widely used by legal, medical and other professionals. Of particular note for LLPs and LLLPs in the new legislation is the revision of Section 8204 of the Associations Code. In brief, under prior law a partner in an LLP or a general partner in an LLLP was not vicariously liable for the malpractice or other wrongful acts or misconduct of other partners but was personally liable for other obligations of the LLP or LLLP. Under the newly adopted legislation, partner liability will be essentially the same as member liability in LLCs and shareholder liability in corporations, i.e. complete limited liability with respect to partnership liabilities of any kind arising after the effective date, other than the partner’s own malpractice or other misconduct. Also, the nature of the liability of a partner for the malpractice or other wrongful acts of a lawyer or other person under the partner’s supervision and control has been modified. Is this a subject of interest to you? By: Alan Molod
Changes affecting Commercial Powers of Attorney in Pennsylvania
On October 4, 2016, Governor Wolf signed into law House Bill 665 (Act 103 of 2016) which clarified certain sections of the Pennsylvania power of attorney law that went in effect on January 2, 2015 (Act 95 of 2014). The changes were aimed at correcting issues with commercial powers of attorney. All changes in Act 103 took effect on October 4, 2016 and apply retroactively to January 2, 2015 (i.e., the effective date of Act 95). 1. Commercial Powers of Attorney are not Subject to the Notarization or Acknowledgement Requirement Under Act 95, all powers of attorney executed after January 1, 2015 had to be witnessed by two individuals and be notarized or acknowledged. While commercial powers of attorney were not required to obtain two witnesses, they were subject to the notarization or acknowledgement requirement. The notarization/acknowledgement requirement was a cumbersome requirement in the commercial setting. Act 103 now excludes commercial powers of attorney from the notarization or acknowledgement requirement (unless the document is being recorded). 2. Agent Duties not Applicable to Commercial Powers of Attorney Act 95 made agents of all powers of attorney subject to certain duties. One of those duties required the agent to act in the best interest of the principal. This requirement was difficult for agents under commercial powers of attorney where the agent was authorized to enforce a security agreement or execute a confession of judgment against the principal, particularly in a loan or lease situation. In order to comply with the law, banks and attorneys inserted lengthy waiver language into the documents. Act 103 now exempts agents under commercial powers of attorney from the standard agent duties. 3. Expanded Definition of Commercial Powers of Attorney Under Act 95, the only powers of attorney for entities (i.e., corporations, LLCs, partnerships, etc.) that were exempt from certain statutory requirements were powers of attorney that were “contained in the governing documents” of an entity or powers of attorney in a voting proxy. This definition was limiting and not in-line with other states. Act 103 expands the definition of commercial powers of attorney that are exempt from the statutory requirements to also include any power of attorney that is “authorized by the law that governs the internal affairs of a legal entity” or “which a director, shareholder, partner, member or manager authorizes others to do things on behalf of the entity.” 4. Attorneys may Acknowledge Powers of Attorney Under Act 95 it was not clear if an attorney could acknowledge a power of attorney. Act 103 confirms that an attorney may acknowledge the execution of a power of attorney provided the attorney was not a witness to the power of attorney and such acknowledgement was in a manner that is authorized by law. Conclusion The changes in Act 103 correct the issues that Act 95 created for powers of attorney used in commercial transactions and provide some much needed clarity for attorneys and commercial institutions. If you have questions or would like additional information regarding the impact of Act 103 on commercial powers of attorney, please contact David Workman, David Mandel or Daniel Levine.
Using Equity Vesting as an Incentive
The opportunity to own equity in a company is one of the central reasons entrepreneurs found a business, and promising future equity to potential employees helps new companies attract the skilled people necessary to run and grow a successful business. Therefore, the promise of eventual equity ownership provides a powerful motivator for founders and employees to contribute their skills and expertise to building a business, and is one of the most valuable assets a new, pre-revenue, company has. For these reasons, many founders decide to subject both founder and employee equity to “vesting”, meaning that full legal ownership of the equity accrues over time. Vesting can take multiple forms, such as granting a founder or employee an option contract to purchase equity units in the future, using a restricted unit arrangement that transfers some, but not all, of the benefits of equity ownership, or reserving a right to repurchase equity units that eventually lapses. Further, the triggers that transfer full ownership of the equity can vary, and include the simple passage of time, the achievement of corporate milestones, or revenue targets. However, regardless of the specific structure a vesting arrangement takes, subjecting founder and employee equity grants to vesting motivates these people to remain involved in the business, and to continue contributing to their skills to developing the company. If you would like to find out more about equity management when it comes to starting your own businesses, you may want to visit somewhere similar to Early Growth to find out more. Our law firm has helped founders structure vesting arrangements for founder and employee equity. If you are considering starting a business and would like to learn more about how our law firm can help you succeed, call us, let’s talk.
Avoiding the International UCC
In 1988, the United States ratified the “United Nations Convention on Contracts for the International Sale of Goods” (the “International UCC”) and virtually all leading trading nations have adopted that law. The International UCC preempts the Uniform Commercial Code used by all states in the United States (“U.S. UCC”) unless parties to the contract clearly opt out of the International UCC. Without that opt out, every sale of goods between a U.S. company and non-U.S. company is governed by the International UCC. There are significant differences between the two laws. Under the U.S. UCC a contract for the sale of goods for the price of $500 or more is not enforceable unless there is sufficient writing to prove such a contract. The International UCC does not require a writing. The U.S. UCC has a parole evidence rule which provides that if the parties have a final and complete contract, evidence of prior agreements or negotiations are not admissible to contradict the writing. The International UCC does not ban that evidence. The International UCC looks at the “subjective intent” of the party to the contract- what is in the party’s mind when entering into the contract. In contrast, the U.S. UCC determines the intent of the parties based on statements and acts that are communicated to the other party- internal thoughts are not considered. If the International UCC governs a contract, a U.S. business person will have to deal with rules that are different from the rules and may be contrary to their business instincts. Their attorney may not be educated on the International UCC. If it has the negotiating power, a United States company when entering into a sales contract with a company outside of the U.S., should include in the contract a clause that negates the application of the International UCC. That clause should first select the state law that applies and follow that with: The United Nations Convention on Contracts for the International Sale of Goods does not and will not apply to this contract. That clause may go a long way if a U.S. company has a dispute over a sales contract with an international company. The courts have held that a contract that simply says that a particular state law applies does NOT negate the International UCC. Instead, the language must specifically state that the International UCC does not apply.
Exclude “Invisible Terms” from a Contract
A Pennsylvania court may interpret a written commercial contract by defining words based on “industry” meanings known as “trade usage.” Courts will go so far as to add an “invisible” term by inferring it into the contract. For example, a Court may add terms not stated in the contract such as terms inferred from course of dealing and trade usage. What are these “invisible terms?” A course of dealing is a sequence of previous conduct between the parties to a contract which establishes a meaning of a contract term. As an example, a buyer of widgets for three years paid a seller on the 15th day after the goods were delivered and neither side complained about that practice. The payment by the 15th day after delivery becomes part of the contract. A “usage of trade” is based on industry practice and refers to a use having regularity of observance in the trade. As an example, company A agrees to sell 1,000 feet of “San Domingo mahogany” to company B. By usage of mahogany dealers, San Domingo mahogany means mahogany of a certain density and it does not have to come from San Domingo. Unless otherwise agreed between the 2 companies, a court would find that the meaning based on density applies. Generally, a business attorney would do not advocate for a contract to be governed by these “invisible” terms. If a buyer believed in his mind that San Domingo mahogany must come from San Domingo and that type of product was very important to his business, the implied term that the mahogany did not have to come from San Domingo could have a disastrous impact on the business. The rights and obligations in a written term are easier to understand than are the rights based on an unwritten course of dealing or industry-wide usage of a term. Comment 2 to UCC § 2-202, provides that course of dealing and usage of trade will be assumed part of the contract, “unless carefully negated.” The language in the contract has to be strong to negate those terms. The following is an example of a strong term: Evidence of trade usage or of course of dealing must not be used (a) to provide additional terms to this contract and/or (b) to interpret the terms of this contract. That term is very easy to add to a contract and it can avoid the “invisible” terms but in practice it is difficult to find contracts that use that type of term. W. Mark Mullineaux
Clearly Defining Terms in a Contract
This article deals with how courts interpret contract terms in a written contract between businesses. In Pennsylvania, the general rule is a court will enforce a contract using the “ordinary meaning” of the words in the contract and will not consider evidence outside the “four corners” of the contract. There are, however, significant exceptions to that rule. (more…)
Pennsylvania Benefit Corporations
Recent years have seen a growing interest in the adoption of environmentally sustainable and socially responsible practices by businesses. On October 24, 2012 Governor Corbett signed into law Chapter 33 of Title 15 (the Pennsylvania Associations Code) which authorizes the organization of a new form of business corporation that offers entrepreneurs and investors the option to build, and invest in, businesses that operate in a socially and environmentally responsible manner. Enforcement of those responsibilities will come not from governmental oversight, but rather from provisions on transparency and accountability included in Chapter 33. A new corporation can be formed as a benefit corporation and an existing business corporation may elect to become a benefit corporation by a two-thirds vote of its shareholders. If this is a subject of interest to you I would be happy to provide you with more information about it. By: Alan H. Molod
New Associations Code Amendments, Part 1
New Associations Code Amendments, Part 1 Senate Bill 304 was signed into law on July 9, 2013 by Governor Corbett as the GAA Amendments Act of 2013 (the “Act”) to be effective September 7, 2013. The Act was drafted by the Title 15/Business Associations Committee of the Section on Business Law of the Pennsylvania Bar Association, on which I have served for many years. The Act amends the Associations Code which contains the laws relating to legal entities, i.e. corporations, partnerships, LLCs, LLPs, business trusts, etc. An aspect of the Act that might be of general interest is Chapter 91 which creates the Pennsylvania Uniform Unincorporated Nonprofit Association Law. Is this a subject of interest to you? By: Alan H. Molod
There is almost no such thing as a “standard” contract. Each contract is unique and merits the attention of an experienced lawyer to raise the proper questions and deal with the proper issues. Although your review will not be from a legal point of view, but rather from a layman’s point of view, you can at least read and react to what is set forth in the contract. The real challenge, which requires an experienced lawyer, is to know what is absent from the contract but should be there. Are you skilled at reading between the lines or can we help? By: Ronald Glazer
Wealth Transfer A Family Limited Liability Company (FLLC) is frequently used to pass wealth from one generation to another. Before the advent of limited liability companies in Pennsylvania in 1994, family limited partnerships were the vehicle of choice for this type of family planning and are still used today. With a FLLC the owner of the FLLC (often the company’s founder) is generally the manager with full management authority, and his/her children are members of the FLLC without any management authority and without the ability to sell any part of their membership interest except, perhaps, to immediate family members. The tax benefits of such a program can be substantial. It is rarely too early to start succession planning. Should you be making such plans? By: Alan Molod
Customers who don’t pay their bills are an annoying aspect of the business world. Because customers are the backbone of our business, we are hesitant to be too demanding in our dunning efforts, and even more reluctant to sue. Creditors are always hopeful that the bill will be paid and further orders were given. We do not want to incur the wrath of a now and future customer by being too insistent about coming to grips with an outstanding invoice. Yet, studies show that the longer a business’s bill is unpaid, the less likely it will ever be paid. Creditors write off a large percentage of billings to bad debts. To avoid these problems, early preparation can be helpful. Identifying the precise customer is a simple task that is not always handled properly. Creditors should try to get the customer’s composition, i.e., proprietorship, partnership, corporation, joint venture or otherwise, of customer or the exact name of the entity. Credit issuers tend to deal with one representative of the customer, such as an officer, credit manager, division head or adjuster, and to address communications and billing to that person. Getting a credit application of some kind completed is a big step in accomplishing this. If you intend to charge interest on overdue billings, that fact must be stated before starting work. Merely setting that forth on subsequent invoices may not be binding, because it may not be considered to have been part of the original terms of engagement. Putting this in a signed credit application should be considered. The same holds true as to a clause giving you the right to attorneys’ fees if referred for collection. There comes a time when a creditor and customer part ways and a bill remains unpaid. A creditor may rebill for a while, or write letters that become increasingly ungracious or make calls. If responses or promises are received, and the debt is acknowledged, a confirmation letter should be sent. Although it may seem self-serving, it may become another piece of uncontradicted evidence in the future. When you are totally ignored, or dunning efforts result in counter-threats, it is time to step back and consider whether you want to write the debt off or proceed with legal action. You may want to think about referring the case to outside counsel. You’ll be able to come to some sort of debt settlement arrangement that suits you and your predicament. An independent attorney will be objective in evaluating your chances of recovery and any settlement offers. You will be less annoyed by the continued paperwork, and all of this may be worth paying a lawyer by the hour or on a percentage basis. There are collection lawyers who are willing to handle these claims on a contingency basis, requesting only that you advance or reimburse costs incurred. Of course, some former customers will want to settle upon receipt of a demand letter from outside counsel. Such a letter is believed to show your serious intent to sue them. You should transmit to the attorney copies of the credit application if there is one, invoices and statements, and relevant correspondence. A compromise is frequently in order. The attorney on a contingency has a stake in your recovery, and will want the largest settlement under the circumstances, but will likely be practical about recommending a compromise. You must look at this as found money once you’ve farmed it out because it is clear you would not have gotten anything by yourself. More than 44 years of experience in commercial and retail collections has led me to conclude that it is your early planning, diligence, and flexibility which will give you the advantage and lead to higher collectibility of receivables from your former customers. By: David I. Grunfeld, Esquire
Frequently Asked Questions
Frequently asked questions about Corporate Law I am starting a new business. What form of business entity should I use? Corporation? Partnership? LLC? I want to raise money from some friends and acquaintances for a business venture I have in mind. Do I have to get involved with securities laws? When should I start planning to transition my business to my children, and how should I go about it? I’m ready to retire. How do I go about selling my business? I am interested in buying an existing business. How do I go about that? I am going into business with some friends. What sort of paperwork is involved and what will it cost? Our business lawyers are here to help you with these and other questions.