Like other national retailers, Pier 1 Imports filed for bankruptcy in March, hoping to sell its assets and to liquidate under-performing locations. Then the Covid19 Pandemic hit the U.S. with its full force, causing mandatory stay at home orders in a majority of the States. It was just a matter of time before the Pandemic started to impact the ebb and flow of large bankruptcy cases. In the case of Pier 1, in-store sales compared to the prior year fell approximately 65% for stores that were to remain open and approximately 55% for the stores that were closing.
Faced with am unanticipated cash crunch, Pier 1 sought and obtained orders from the Bankruptcy Court that permitted the accrual of post-petition rent obligations at certain locations, instead of the current payment thereof. This relief was granted and recently extended to the end of May despite the objection of landlords, who argued the Debtor had to perform all of its obligations under the leases pursuant to section 365(d)(3), including the obligation to pay rent on an as incurred basis. In rejecting this construction of section 365(d)(3), the Bankruptcy Court reasoned that “section 365(d)(3) does not give the Lessors a right to compel payment from the Debtors in accordance with the terms of the underlying leases. Rather, to the extent that the Debtors are obligated to pay rent and fail to timely pay such rent, the Lessors are entitled to an administrative expense claim. Administrative expense claims under sections 507(a)(2) and 503(b) of the Bankruptcy Code, such as post-petition date unpaid rent, must be paid “on the effective date of [a] plan . . . [in] cash equal to the allowed amount of such claim. 11 U.S.C. § 1129(a)(9)(A); see also In re Circuit City Stores, Inc., 447 B.R. at 511. As such, any allowed claims for accrued but unpaid post-Petition Date rent must be paid by the Debtors on the effective date of any plan confirmed in these Bankruptcy Cases. To compel payment by the Debtors now would be to elevate payment of rent to the Lessors to superpriority status…”
The question is whether the Pier 1 holding will become the new normal in bankruptcy cases and how aggressively will landlords fight the issue, particularly when the market for re-leasing the space is compromised due to the depressed retail environment.
The City of Chicago has established the Microbusiness Recovery Grant Program, which will distribute $5,000 grants to up to 1,000 eligible businesses. In order to qualify for this grant, a business must have no more than four employees, less than $250,000 in annual revenue, have been in business for one year, have suffered a 25% decrease in revenue due to COVID-19, and be located in a low or moderate income part of the city. Online applications are due on May 4 (https://app.smartsheet.com/b/form/6c163da4b4de4f18a281a76f550d89a0), and grant recipients will be selected on a lottery basis on May 11. For more information about this program, see the program website (https://www.chicago.gov/city/en/depts/bacp/supp_info/smallbusinessresiliencyfundgrantprogram.html).
Gov. J.B. Pritzker’s office has issued an executive order temporarily suspending the service of garnishment summonses, wage deduction summonses, and citations to discover assets on consumer debtors and consumer garnishees for the duration of the Gubernatorial Disaster Proclamations. It is effective as of April 14, 2020.
The SBA has provided the following answers to frequently asked questions about the Paycheck Protection Program (“PPP”). The full guidance is available at https://home.treasury.gov/system/files/136/Paycheck-Protection-Program-Frequenty-Asked-Questions.pdf and should be consulted.
According to the SBA, borrowers and lenders may rely on the guidance as SBA’s interpretation of the CARES Act and of the Paycheck Protection Program Interim Final Rule (“PPP Interim Final Rule”) (link). The U.S. government will not challenge lender PPP actions that conform to this guidance, and to the PPP Interim Final Rule and any subsequent rulemaking in effect at the time.
Question: Paragraph 3.b.iii of the PPP Interim Final Rule states that lenders must “[c]onfirm the dollar amount of average monthly payroll costs for the preceding calendar year by reviewing the payroll documentation submitted with the borrower’s application.” Does that require the lender to replicate every borrower’s calculations?
Answer: No. Providing an accurate calculation of payroll costs is the responsibility of the borrower, and the borrower attests to the accuracy of those calculations on the Borrower Application Form. Lenders are expected to perform a good faith review, in a reasonable time, of the borrower’s calculations and supporting documents concerning average monthly payroll cost. For example, minimal review of calculations based on a payroll report by a recognized third-party payroll processor would be reasonable. In addition, as the PPP Interim Final Rule indicates, lenders may rely on borrower representations, including with respect to amounts required to be excluded from payroll costs.
If the lender identifies errors in the borrower’s calculation or material lack of substantiation in the borrower’s supporting documents, the lender should work with the borrower to remedy the issue.
Question: Are small business concerns (as defined in section 3 of the Small Business Act, 15 U.S.C. 632) required to have 500 or fewer employees to be eligible borrowers in the PPP?
Answer: No. Small business concerns can be eligible borrowers even if they have more than 500 employees, as long as they satisfy the existing statutory and regulatory definition of a “small business concern” under section 3 of the Small Business Act, 15 U.S.C. 632. A business can qualify if it meets the SBA employee-based or revenue-based size standard corresponding to its primary industry. Go to www.sba.gov/size for the industry size standards.
1 This document does not carry the force and effect of law independent of the statute and regulations on which it is based.
Additionally, a business can qualify for the Paycheck Protection Program as a small business concern if it met both tests in SBA’s “alternative size standard” as of March 27, 2020: (1) maximum tangible net worth of the business is not more than $15 million; and (2) the average net income after Federal income taxes (excluding any carry-over losses) of the business for the two full fiscal years before the date of the application is not more than $5 million.
A business that qualifies as a small business concern under section 3 of the Small Business Act, 15 U.S.C. 632, may truthfully attest to its eligibility for PPP loans on the Borrower Application Form, unless otherwise ineligible.
Question: Does my business have to qualify as a small business concern (as defined in section 3 of the Small Business Act, 15 U.S.C. 632) in order to participate in the PPP?
Answer: No. In addition to small business concerns, a business is eligible for a PPP loan if the business has 500 or fewer employees whose principal place of residence is in the United States, or the business meets the SBA employee-based size standards for the industry in which it operates (if applicable). Similarly, PPP loans are also available for qualifying tax-exempt nonprofit organizations described in section 501(c)(3) of the Internal Revenue Code (IRC), tax-exempt veterans organization described in section 501(c)(19) of the IRC, and Tribal business concerns described in section 31(b)(2)(C) of the Small Business Act that have 500 or fewer employees whose principal place of residence is in the United States, or meet the SBA employee-based size standards for the industry in which they operate.
Question: Are lenders required to make an independent determination regarding applicability of affiliation rules under 13 C.F.R. 121.301(f) to borrowers?
Answer: No. It is the responsibility of the borrower to determine which entities (if any) are its affiliates and determine the employee headcount of the borrower and its affiliates. Lenders are permitted to rely on borrowers’ certifications.
Question: Are borrowers required to apply SBA’s affiliation rules under 13 C.F.R. 121.301(f)?
Answer: Yes. Borrowers must apply the affiliation rules set forth in SBA’s Interim Final Rule on Affil…
The Federal Reserve appears to be taking action designed to bolster the Payroll Protection Program by allowing banks to sell the low-interest loans (which are capped at $10 million) to the U.S. central bank for cash. This move is designed to ease previously reported concerns among banks, particularly Chase and Bank of America, about getting stuck holding the low interest loans and administering them. Details on this action are expected to be announced later this week. The American Bankruptcy Institute reports that this move could make the program more attractive to lenders, given the fees of up to 5 percent banks can earn for what now amounts to processing the paperwork.
Businesses that have obtained financing through Merchant Cash Advances, and that have been shuttered by the Covid-19 pandemic, may be hit with a double-whammy — reduced cash flow to pay critical expenses (e.g., payroll) and aggressive collection efforts from cash hungry merchant cash lenders. This phenomenon is discussed in a recent article from NBC News: https://www.nbcnews.com/business/economy/ftc-official-legal-loan-sharks-may-be-exploiting-coronavirus-squeeze-n1173346?cid=eml_nbn_20200403
Businesses struggling with Merchant Cash Advances may be able to benefit from the expedited Chapter 11 processes available under the recently enacted Small Business Restructuring Act (a “Subchapter 5” filing). FactorLaw has previously reported how a Subchapter 5 filing can be used by small businesses dealing with financial distress.
FactorLaw attorneys are available to discuss how the SBRA can help businesses deal with Merchant Cash Advance issues.
Categories: Covid-19 Issues, For Creditors, For Creditors|Illinois Bankruptcy, For Debtors, For Debtors, Illinois Bankruptcy, Interesting Articles, Interesting Links, Merchant Cash Advance Defense, News, Practice Areas, Uncategorized
On April 2, 2020, the Small Business Administration issued guidance on the Paycheck Protection Program contained in the recently enacted Coronavirus Aid, Relief, and Economic Security Act (a/k/a the CARES Act). The Paycheck Protection Program will provide up to $349 billion in loans to eligible small businesses (generally a business with fewer than 500 employees), independent contractors, and self-employed individuals to cover payroll and other costs. Key highlights of the Paycheck Protection Program include:
-100% of the loan’s principal may be forgiven if borrowers satisfy certain conditions.
– The loans will have a two-year term with payments deferred for six months.
– The loans will carry an interest rate of 1%.
– The loans will be in the amount of the lesser of $10 million or an amount calculated on a specified payroll-based formula.
More information, including eligibility criteria, can be found in the guidance issued by the Small Business Administration. [INSERT LINK https://content.sba.gov/sites/default/files/2020-04/PPP–IFRN%20FINAL.pdf]
The application process for the Paycheck Protection Program opened officially on April 3, 2020 but several banks are still in the process of developing procedures to accept applications. The funds are available on a first come first serve basis.
The attorneys at FactorLaw will continue to monitor legal and regulatory developments to assist clients during the current crisis.
On Monday, March 30, 2020, the Illinois Department of Financial and Professional Regulation announced a series of actions to ensure the protection of Illinoisans in many areas of small business and consumer borrowing, servicing, and collections. The link to the guidance put forth by the IDFPR can be found at https://www.idfpr.com/News/2020/2020%2003%2030%20IDFPR%20financial%20guidance.pdf
Steven Mnuchin has announced that further details on accessing the SBA’s Covid-19 relief loan program should be available later this week. At this point, applications for the program are not available, but Mnuchin’s announcement hopefully means they will be offered very soon. Small-business owners can go to any of the existing SBA lenders, as well as any FDIC-insured institution, credit union or financial-technology lender that has signed up for the program. Anecdotal information indicates that the competition for these loans could be fierce, with lenders focusing on the needs of existing borrowers first.
For your information, FactorLaw has prepared the following discussion
of how and when chapter 11 can be a viable option for small businesses (or
their owners) that are dealing with financial distress caused by the Covid-19
Crisis (the “CVC”). Although the Courts in Cook County and the
collar counties right now are largely closed for civil matters, the Bankruptcy
Courts in Chicago are open and new cases can be filed and administered during
these unprecedented times. We hope you
find the following discussion useful and we welcome any questions you might
The Highly Vulnerable Business
The first tranche of businesses likely to face immediate and
severe financial distress due to the CVC likely will be those where demand for
goods or services is immediately and drastically reduced (or eliminated) and that
have high costs that cannot be easily ratcheted down without impairing the
business or incurring unsustainable liabilities. Businesses whose cash flow or business model
have otherwise suffered critical disruption due to the CVC also are likely to suffer
extreme financial distress, as are businesses that were teetering before the
CVC. The likely candidates in this
category include restaurants, small hotels/motels, small retailers, and
businesses that support these establishments.
Highly vulnerable businesses are less likely to have sizeable
long-term debt and usually do not fund operations through a revolving line of
credit, although some may, particularly if the business owns real estate. In many cases, credit relationships exist at
the vendor level and major stakeholders are suppliers and landlords. Such businesses also may have used shareholder
loans, merchant cash financing or other high-interest products to sustain
Depending upon cash reserves and the ability to reduce operating
expenses swiftly, the optimal strategy for the highly vulnerable business is to
(1) reduce operating expenses as much as possible during the CVC, with the hope
of reengaging in the future and (2) exacting concessions from creditors. Highly vulnerable businesses also might try
to take advantage of the myriad programs at the Federal and State levels to
assist troubled businesses, although the response time for these programs
currently is not known and some of these programs may not be available if a
business reduces its work force.
Pursuing these options may require contacting landlords and
other creditors, including high interest rate lenders and labor unions, and
requesting some type of forbearance or waiver, which should be reduced to
writing if possible, particularly in light of the requirement for modifications
to be in writing under the Illinois Credit Agreements Act. Such businesses also need a unified response
from management/ownership and if the key decision makers are not aligned, the
most effective responses may be unachievable.
Although the wisdom of a chapter 11 filing for a highly
vulnerable business should be carefully explored, particularly because chapter
11 relief can be a drastic remedy, it can help preclude a recalcitrant lender or
creditor from exercising non-judicial remedies, including setting off bank
deposits, sweeping cash to apply to the loan or refusing to perform under a
bilateral agreement. A chapter 11 bankruptcy
also can help to preserve asset value to the extent the CVC or other issues threaten
that value, particularly if an operational shutdown threatens important
contracts because of termination clauses. On the other hand, the automatic stay may be
less relevant to stopping judicial remedies right now because most civil court
proceedings and enforcement actions in Cook County and the collar counties have
been shut down as part of the shelter in place orders issued in Illinois.
Thus, highly vulnerable businesses might consider a
bankruptcy filing to (1) liquidate the business in an orderly fashion,
including by selling assets, to avoid the loss of all value, (2) impede a pesky
lender or other creditor that threatens to exercise nonjudicial remedies or
rights that, if implemented, will make re-engaging impossible or very costly
once the CVC has passed, (3) stabilize an imploding business so that it can obtain
a breathing spell to pursue other options, including the lending programs
recently implemented, (4) limit the forfeiture of rights and property, or (5) facilitate
prompt access to additional capital.
With respect to the first item – liquidating or selling
assets in a coordinated fashion – section 363 of the Bankruptcy Code authorizes
the sale of assets free and clear of liens.
It also gives the purchaser protection from trailing claims, including
successorship liability claims. If a
highly vulnerable business wishes to engage in a substantial sale transaction
and has identified a purchaser, bankruptcy may be a good option fo…
Categories: Covid-19 Issues, For Creditors, For Creditors|Illinois Bankruptcy, For Debtors, For Debtors, Illinois Bankruptcy, Interesting Articles, Interesting Links, News, Practice Areas, Uncategorized