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If you are small company (with under 500 employees) and have experienced interruption to regular business operations due to COVID-19 , your organization may qualify for up to $10 million in assistance under the CARES Act.
The Federal CARES Act
The World of Colliers
Economic Relief for Small Businesses
Among the concerns most prevalent among investors and property owners/managers as businesses have had to restrict operations at the expense of revenue is the threat of tenants invoking force majeure and withholding rent. Here's what you should know.
Rent Abatement, Force Majeure & Your Rights
As the world continues to navigate the impact of the spread of COVID-19 across the globe, many businesses are asking: Can business interruption insurance help?
What Businesses Need to Know
COVID-19 & Business Interruption Insurance
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All statistics are for 2018, are in U.S. dollars and includes affiliates
Much has been said about benefits available to small businesses through the $2 trillion CARES Act, but specific details of how large corporations benefit from this legislation is still unknown.
Economic Relief for Large Businesses
Copyright © 2020 Colliers International. The information contained herein has been obtained from sources deemed reliable. While every reasonable effort has been made to ensure its accuracy, we cannot guarantee it. No responsibility is assumed for any inaccuracies. Readers are encouraged to consult their professional advisors prior to acting on any of the material contained in this report.
COVID-19 and Business Interruption Insurance
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The Advisor 2020
Understanding the Federal CARES Act
Part One: Economic Relief for Small Businesses
If you are a small company, sole proprietor or nonprofit organization with fewer than 500 employees and have experienced interruption to regular business operations due to the COVID-19 pandemic, your organization may qualify for up to $10 million of assistance from the federal government under the CARES Act.
In many cases, this money is available as a grant when specified parameters are met so you can stabilize business, retain your workforce and prepare for future growth.
With many businesses being forced to close doors, cease operations and change service and product delivery models, it’s no question that many business owners are quickly trying to adjust to the current conditions of business within economies that are being shut down across the world.
As the United States continues to grapple with the appropriate way to fight the spread of COVID-19 and protect those most susceptible to the virus, the federal government has overwhelming expressed its support of businesses across America by passing the CARES Act or H.R. 748. This bill opens over $2 trillion in response to fighting both the health and economic effects of coronavirus.
The United States Senate Committee on Small Business and Entrepreneurship built well over $350 billion within the CARES Act to support small businesses. This assistance is available in the following ways:
7(a) Loans (Treated as Grants)
Through 7(a) loans, eligible organizations can borrow up to the monthly average payroll of their business multiplied by 2.5 up to a maximum of $10 million. In other words, the borrowed amount allows for two months of payroll expenses plus 25%, allowing businesses to provide payroll support (including paid sick or medical leave) to retain employees as an alternative to laying off or furloughing its workforce and to pay critical expenses like rent and utilities.
Ultimately, if a business keeps and maintains its workforce, the entirety of the loan will be forgiven by the federal government in the form of a waived grant.
The forgiven amount would be reduced in proportion to any reduction in employees retained or reduction in pay of any employee beyond 25% of their prior year compensation. Borrowers that rehire workers previously laid off will not be penalized for having reduced payroll.
7(a) loans are issued to small businesses from financial institutions like banks or credit unions but are 100% guaranteed by the federal government. Both borrower and lender fees are waived.
The federal government will continue to pay contractors and extend contract performance time by no fewer than 30 days for small businesses with government contracts that were affected by COVID-19.
Federal Business Contractors Guarantees and Extensions
This legislative provision establishes an emergency grant for small businesses with fewer than 500 employees as well as eligible nonprofits.
The receiving entity must apply for an Emergency Injury Disaster Loan (EIDL), after which a grant may be given in the form of an advance on the loan of up to $10,000. The SBA must distribute this money within three days of the EIDL application being filed. Applicants would not be required to repay the advance payment, even if the business is subsequently denied an EIDL.
This grant money may be used to provide paid sick leave for employees, maintain payroll, meet increased production costs due to supply chain disruptions, or pay business obligations, including debts, rent and mortgage payments.
Economic Injury Disaster Loans are designed to provide urgent assistance to businesses who need immediate financial relief. In many cases, checks can be issued to business owners within five days of a loan application being filed and cleared.
Unlike 7(a) loans, these loans are directly financed by the federal government and administered by the U.S. Small Business Administration (SBA), not financial institutions.
These SBA loans offer up to $2 million in assistance for small businesses and can provide vital economic support to many types of companies, helping immediately overcome temporary loss of revenue.
EIDLs may be used to pay fixed debts, payroll, accounts payable and other bills that can’t be paid because of the disaster’s impact. The interest rate is 3.75% for small businesses. The interest rate for nonprofits is 2.75%.
The SBA offers loans with long-term repayments to keep payments affordable, up to a maximum of 30 years. Terms are determined case-by-case, based on each borrower’s ability to repay.
Economic Injury Disaster Loans (EIDLs)
included in the CARES Act
for small businesses
The CARES Act will also provide substantial tax relief for small businesses, as outlined in a recent summary of the bill by ICSC.
Business Tax Relief
Qualified Improvement Property (QIP): This technical correction fixes an error in the Tax Cuts and Jobs Act (TCJA) that required tenant improvements to be depreciated over the 39-year life of the building. The fix is retroactive to 2018.
Employee Retention Credit for Employers Subject to Closure Due to COVID-19: This provision provides a refundable payroll tax credit for 50 percent of wages paid during the COVID-19 crisis. The credit is available to employers whose (1) operations were fully or partially suspended due to a COVID-19-related shutdown order or (2) gross receipts declined by more than 50 percent when compared to the same quarter in the prior year.
Delay of Payment of Employer Payroll Taxes: Employers and self-employed individuals may defer payment of the employer share of the Social Security tax. The bill requires that the deferred employment tax be paid over the following two years.
5-year Net Operating Loss (NOL) Carryback: A loss from 2018, 2019 or 2020 can be carried back five years and remove the 80% taxable income limitation to allow an NOL to fully offset income.
Suspension of the Limitation on Losses from Pass-through Businesses: All losses from a pass-through business may offset other sources of an individual’s income, suspending a new rule imposed in the TCJA [IRC section 461(l)].
Relaxation of Business Interest Deduction Limits: This provision increases the 30% limitation of taxable income for 2019 and 2020 to 50%.
More Money for a Longer Period for More Workers: This bill makes benefits more generous by adding a $600-per-week across-the-board payment increase through the end of July. In addition, for those who need it, the bill provides an additional 13 weeks of benefits beyond what states typically allow.
Temporary Provisions: The expansion in unemployment benefits expires at the end of 2020 in recognition of the temporary nature of this challenge.
U.S. Chamber of Commerce
Coronavirus Emergency Loans
Small Business Guide and Checklist
The U.S. Chamber of Commerce has put togther a Q&A and eligibility checklist for small-business owners.
Check your eligibility
Small Business Administration
Disaster assistance loan applications are available through the SBA.
Apply for a disaster assistance loan
Application for Assistance
Resources for Small Businesses
BREAKDOWN OF CARES ACT BY DOLLAR
(IN BILLIONS) *individuals and public health are estimated
COVID-19 & Business Interruption Insurance
What Businesses Need to Know
As the world continues to navigate the impact of the spread of COVID-19 across the globe, many businesses are looking for remedies and solutions that can provide relief for the financial loss created by the pandemic. Can business interruption insurance help?
Unfortunately, the short answer — for now — is probably not. Business interruption insurance is only in effect if a business closure is for a covered cause. In 2006, after the SARS outbreak, the Insurance Services Office (ISO) added a clause to their standard forms that clarified that virus pandemics are not a covered cause. ISO provides the standard forms for nearly all insurance providers, who very rarely deviate from the industry standard form.
Terry Buckner, industry veteran and owner of Buckner Insurance, confirmed with Colliers that after a review of all of their clients’ policies and discussions with a peer group of leading insurance companies, they have not seen a single policy that will cover the corona virus shutdown.
Understandably, these entrepreneurs are frustrated that they paid billions of dollars in insurance premiums for this sort of catastrophe to find themselves left out to dry. Now, insurance associations are receiving pressure from federal lawmakers and policy holders alike, demanding change or government action. So, where do we go from here?
Four Possible Outcomes
The federal government forces insurance companies to pay — New York and New Jersey have endorsed a reform clause that would mandate that all insurance cover shutdowns resulting from COVID-19, with similar concepts cropping up across the United States. It may not hold up in court, however, as it could swiftly bankrupt the entire insurance sector.
The federal government covers the cost for insurance companies — The federal government may, in fact, force insurance companies to pay and then cover the cost on their behalf. This avenue leverages the current claims infrastructure to deploy the relief but has the U.S. taxpayer step in as the deep pocket.
The federal government provides relief — As insurance companies have thus far declined to provide relief, it is possible that the federal government will create their own relief package that provides sweeping business interruption coverage for COVID-19-caused closures, as recently proposed by congresswoman Maxine Waters.
Nothing — As business shutdowns seem to expand and worsen every day, the scope of business interruption will become astronomical and unprecedented without some sort of relief. The dollar value attached to that interruption will likewise cause mouths to drop and blunt any efforts to provide meaningful relief down the road.
For now, don’t rely on your business interruption insurance for help.
Look into the disaster relief SBA loans for working capital (more details on that to come in a future article).
Track all losses and extra expenses relating to the COVID-19 event, regardless of whether you intend to submit an insurance claim.
Keep an eye out for the government’s response: bills, mandates or stimulus packages that may provide assistance or coverage. These could come at a state or federal level. We at Colliers will continue to keep you updated.
In the meantime, check your insurance policy for other noncovered peril, like a health department shutdown for wear and tear or an elected non-covered cause, like an earthquake, so you are prepared for any future business interruptions.
What You Should Do
There are some policies that added a sublimit that
specifically covers communicable diseases or viruses, but these are rare and typically have reduced limits.
If you work in education or assisted living, your insurance may include emergency event coverage that may cover coronavirus. However, this kind of insurance is very uncommon.
In rare circumstances, manufacturing insurance
include closures for
viruses as a
No doubt by now you have been inundated with emails, calls and maybe even texts from companies and professionals providing updates on their response to the Coronavirus outbreak and COVID-19 quarantine measures. These truly are strange and unprecedented times as local and national efforts to contain the spread of the virus, and thus mitigate its stress on the healthcare system, have roiled financial markets and disrupted revenue generation for businesses of all sizes.
With all the stress and uncertainty surrounding the impact and longevity of such disruption, misinformation and speculation can easily spread and contribute to the unease many investors and property owners are currently navigating. In an effort to provide actionable information to those with investments in commercial real estate, and in doing so alleviate some of the uncertainty-related stress, our team would like to share that which we feel is most relevant to helping YOU respond to the unfolding crisis.
Force Majeure and its Limitations
Among the concerns most prevalent among commercial real estate investors and property owners/managers as businesses and the government have decided to restrict operations at the expense of revenue is the threat of tenants invoking force majeure and withholding rent. While there are certainly instances in which the force majeure — or “Act of God” — clause can relieve one or both parties of certain contractual obligations, it is worth noting that the efficacy and applicability of such a clause is nuanced and highly dependent upon the language in the contract itself.
As we are commercial real estate investment professionals and not in the business of practicing law, it would be prudent to seek advice from a legal professional when examining any aspect of contract language. With that said, in light of the aforementioned concerns, much has been written by practicing legal professionals highlighting how owners and investors may want to go about reviewing tenant contracts to determine the potential impact of any effort to invoke the force majeure clause.
From Alex Benarroche, a Legal Associate focused on working with construction companies, we get a good sense of how difficult it is for a party to actually invoke force majeure:
The list of considerations proposed by Neuburger and Horowitz is by no means exhaustive, but it gives owners and investors a plan of attack when reviewing lease contracts.
“Using force majeure as a defense for not performing to the requirements spelled out in your contract can be tough. Foreseeability has become a tricky topic. Many defenses have failed because, given the circumstances, the judge determined that the event was reasonably foreseeable and appropriate measures should have been taken. Basically, the foreseeable argument is that the failure to protect yourself means that you are acknowledging that you 'own' the risk should something happen. Along the same lines, alternative means of performance are also considered. When using a force majeure defense, you must prove that the non-performance could not have been avoided or overcome. In other words, you have to show performance was practically impossible. That’s why you should always have a plan B. Having contingencies in place can ensure that you’re protected. Keep in mind: the mere presence of a force majeure clause is not a substitute for creating a backup plan. Lastly, as always, communication (by giving notice) is key. Notice requirements are important to include in any force majeure clause. Typically, notice must be made 'within a reasonable time' or 'without delay.' Giving notice provides a reasonable opportunity to mitigate the consequences and take steps to overcome whatever obstacle has come into play.”
Furthermore, from The National Law Review, Jeffrey Neuburger and Jordan Horowitz present a list of considerations when evaluating a contract’s force majeure clause:
“What contract provisions are relevant? Determine whether the contract includes a force majeure provision, and whether there any other relevant provisions to assess. … What law governs the contract? … Even if the contract does not include a force majeure provision, a force majeure concept (such as the doctrine of impossibility or frustration) could be implied under applicable state contract law. … How does the contract define a force majeure event? Is the provision broadly written? … Is the coronavirus outbreak the cause of the party’s nonperformance? Consider whether the party could have timely performed if the outbreak did not occur. … Does 'prevented' or 'delayed' performance trigger the force majeure clause? ... Does the contract require notice? Force majeure clauses may be conditional upon notice requirements. … What obligations are excused? ... What are the implications of a force majeure event? ... Does a termination right arise if the force majeure event continues for an extended period of time? Are there alternatives to performance? Often, parties have an obligation to mitigate damages. Consider whether there are other means through which a party can perform.”
By The Kofoed Investment Team
Senior Vice President of Investments
Senior Investments Associate
Client Services, Investments Division
The economic strain caused by Coronavirus containment efforts is being felt by all variety of businesses and individuals — and likely will be for some time. While a heavy dose of empathy for those affected most severely is appropriate and justified, you as a commercial real estate property owner/investor should be aware of your tenants’ ability, or inability, to disrupt YOUR property’s income stream. In these times we can all practice showing a little more compassion without needlessly sacrificing our business savvy and preparedness.
Just remember, your tenants that offer entertainment or do hair and nails are not likely to be able to make monthly rent because of government mandated shutdowns. Your tenants that are restaurants may be suffering some economic slowdown, while your online retailers and distribution centers may actually be in better financial positions than ever before. The Kofoed Investment Team is committed to being your partner and serving as a resource when it comes to all aspects of commercial real estate investments, now more than ever. If ever you, or anyone you may know, would like to discuss ways in which we may be of service, or to simply talk through what we are seeing in the markets, please do not hesitate to reach out.
Part Two: Economic Relief for Large Businesses
Much has been said and circulated about benefits available to small businesses through the $2 trillion CARES Act, but specific details of how large corporations benefit from this legislation are still a bit unknown as we wait for the Treasury Department to issue further guidance.
However, we do know that large businesses can certainly qualify for financial relief under the CARES Act, but with what conditions? How will these requirements impact operations over ensuing months? And will large businesses really see any strategic advantage by taking money from these federal programs?
Let’s look into some of the key details.
In short, the CARES Act opens approximately $500 billion for the Federal Reserve to issue loans, loan guarantees and investments to eligible businesses. Unlike SBA loans (under Title I of the CARES Act), any loans issued to large businesses (under Title IV of the CARES Act) will not be forgiven.
Under these requirements, the federal government has endeavored to regulate the flow of money away from top-level leadership within a company and back toward the retention of a corporation’s general workforce.
Perhaps the biggest pill to swallow for many large corporations looking to take money from the Federal Reserve may come in the form of meeting strict loan conditions.
For example, Congress has set forth the following additional conditions for nonprofits and mid-sized businesses with 500–10,000 employees:
Federal Reserve loans issued to large corporations are subject to very strict transparency processes. The Secretary of Treasury is legally required to publish loan application procedures and requirements within 10 days of the bill being signed into law. These procedures and requirements will further outline transparency procedures.
In addition to oversight from the Secretary of Treasury, the CARES Act creates a Special Inspector General for Pandemic Recovery responsible for oversight and investigation into the making and management of the loan programs created under Title IV. The CARES Act also creates a Congressional Oversight Commission tasked with overseeing the implementation of Title IV’s loan programs.
There is a set of basic criteria which the federal government will use to qualify which businesses can receive financial relief under the bill. Eligible companies must meet all of the following parameters:
(Annualized interest rate of no higher than 2% with no required payments on the principal or interest in the first 6 months)
Midsize Loan Program
The company will use the loan to restore full compensation and benefits to workers and bring employment levels back to no less than 90% of its workforce on February 1, 2020 and maintain this number through September 30, 2020
Not a debtor in a bankruptcy proceeding
Will not offshore jobs until at least 2 years after the loan is repaid
Will not abrogate existing collective bargaining agreements
Will remain neutral in any union organizing efforts
For the term of the loan and one year, businesses who receive loans are restricted from:
More than 500 employees
Originally created or organized in the United States
Significant operations in and a majority of its employees based in the United States
Has not received adequate economic relief in the form of loans or loan guarantees provided elsewhere in the CARES Act
Buying back an equity security of the business if listed on a stock exchange
Paying dividends or making capital distributions to a company’s common stock
Increasing compensations for employees who made more than $425,000 in 2019
Offering severance or other benefits that exceed twice an employee’s current compensation
Providing more than $3 million plus 50% of the excess over $3 million for employees that exceeded compensation of $3 million in 2019
With what seems to be quite stringent requirements and conditions, it remains to be seen whether large corporations will take advantage of available federal loan programs under the CARES Act or just simply shutter certain areas of business operations altogether to offset losses.
Only time will tell, and over the coming weeks the Federal Reserve and Treasury Secretary will further define available benefits for these loan programs.
However, many companies that have been highly affected by the coronavirus pandemic have already begun furloughing employees in large numbers. Industry clusters such as large hotels, restaurant chains, casinos and big-box retailers are in a difficult position to determine whether or not they can realistically retain 90% of their existing workforces with full compensations and benefits.
If these companies cannot meet all the requirements and conditions of Title IV, there may be little or no value available to them in the CARES Act. Large businesses will need to embrace alternative strategies to strengthen operations and overcome obstacles created by the coronavirus pandemic in the event the CARES Act does not provide them with adequate economic relief.
BREAKDOWN BY DOLLAR
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