ShuffieldLowman served as legal counsel for Colorado Boxed Beef Company (CBBC), a leading national provider of protein products during its merger with Quirch Foods, creating a leading U.S. distributor and exporter of protein and ethnic food products. CBBC was founded in 1975 with its roots beginning as a protein supplier in the southeast. Now, they are a leading supplier of protein products in the U.S., with both a national and international footprint with their distribution facilities. CBBC was the portfolio company of Altamont Capital Partners, a middle-market private equity firm based in the San Francisco Bay Area with more than $2.5 billion of assets under management. You can view the full press release HERE.
The ShuffieldLowman team that advised CBBC included mergers & acquisitions partners Julia Dennis and the firm president, William Lowman, lending and M&A partner Jason Davis, and real estate counsel attorney Maia Albrecht, along with our talented team of paralegals, Darlene Crisler and Kylea Perrott.
Congratulations! You successfully navigated the Paycheck Protection Program (PPP) loan application process and you were awarded a loan from the SBA. You have spent all the funds in accordance with your advisor’s recommendations and your business’ needs. Now you would like to apply for forgiveness of that loan to turn it into a grant. What do you need to know and what actions do you need to take? Have no fear, the SBA recently issued additional guidance in the form of FAQs to assist you.
Will you need to submit documents with original signatures in ink? It is acceptable to submit digital or scanned copies of any applications or supporting documentation for your loan forgiveness request. Any signatures or consents that you need to provide may also be completed electronically. You should check with your lender/servicer, to make sure their internal rules also allow for this.
If you submit your forgiveness application during the 10-month period after the covered period of your loan ends, then you will not be required to make any loan payments until the forgiveness amount is determined by your lender.
You may elect an Alternative Payroll Covered Period if that aligns better with your payroll practices than the standard Covered Period. Payroll costs incurred during the period are eligible for forgiveness if they are paid by the following payroll date after your period ends.
If you took an Economic Injury Disaster Loan (EIDL) advance, then that amount will reduce any amount of loan forgiveness that you qualify for. If the amount of your EIDL advance exceeds your PPP loan amount, then you will not qualify for any forgiveness.
One important point to remember is that forgiveness is not all or nothing. You may obtain partial forgiveness for the portion of your loan that was expended on allowable expenses and otherwise qualifies under the workforce retention guidelines. If you only qualify for partial forgiveness, then your lender is required to: (1) notify you of the amount of your PPP loan that will not be forgiven, (2) notify you of the date that you are required to start making loan payments, and (3) continue to service your loan over its term.
When should you apply for forgiveness? Many businesses are waiting to file the application for forgiveness since SBA may continue to issue new regulations. Additionally, it appears that another coronavirus relief package is in the works in Congress. It is certainly possible that a new relief package could change the parameters around receiving forgiveness. You may wish to wait a little longer so that there is more certainty before you apply. You should discuss the timing of your forgiveness request with your advisors.
What if you don’t agree with a decision that SBA has made related to your PPP loan or forgiveness of it? There is a process to appeal any decision made by the SBA that negatively impacts you. For instance, SBA is reviewing PPP loans to determine whether the borrower was eligible for all or a portion of the loan they received, if the funds were spent appropriately, to what extent you qualify for forgiveness, etc. If you decide that you need to appeal, then you must include quite a bit of information with your appeal request (copy of the decision you are appealing, a statement of your position, the relief you are requesting, copies of tax filings for your payroll, and additional tax records). You may want to seek help from a trusted advisor to increase your chance of a successful appeal. For more information on PPP loan forgiveness guidelines, see our blog on that topic here.
To speak with an attorney from our corporate law or banking and finance departments, fill out our website contact form or call our Orlando office at 407-581-9800.
The beginning of 2020 brought substantial changes to the Florida Business Corporation Act (“FBCA”). The revised FBCA was signed into law on June 7, 2019 by Governor DeSantis and became effective on January 1, 2020.
The FBCA has not had a substantial revision since it was first revised in 1989. A comprehensive overhaul of the FCBA was warranted to bring Florida’s corporate statute up to date with modern corporate statutory trends and developments. The amendments to the FBCA are modeled after the 2016 version of the Model Business Corporation Act, albeit with several certain deviations. The revised FBCA represents an extensive change to Florida law in 2020; some of these changes include:
- Various definition and language changes;
- Provides for the expansion of a minority shareholder’s appraisal rights;
- Provides for the reservation of a corporate name for 120 days;
- Provides for increased judicial discretion in dissolution matters;
- Addresses items that may be added to articles of incorporation and, at least in one case, one topic that cannot be included in the articles;
- Allows domestic entities, such as a domestic limited liability company, and foreign entities authorized to do business in Florida to act as registered agents; and
- Authorizes a court to remove a director in a derivative proceeding under certain circumstances.
Owners, shareholders, officers, and directors of Florida corporations should be cognizant of the FBCA revisions and how said changes could potentially impact their rights, duties, and obligations. If you are interested in learning more about the amendments to the FBCA please feel free to contact us.
Congress passed the Paycheck Protection Program Flexibility Act of 2020 on June 3, 2020, and President Trump signed it into law on June 5, 2020. The Act made some key revisions to the Paycheck Protection Program (PPP) as well as provided further clarity for issues surrounding the forgiveness portion of the loan. Below are some of the significant amendments that businesses who applied and received PPP loans should now review and take into consideration.
1. While the CARES Act originally granted borrowers only eight weeks to spend the PPP Loan money, this new Act now gives borrowers 24 weeks from when the loan proceeds are received to use the funds and still qualify for forgiveness.
2. The CARES Act originally mandated that at least 75% of the PPP loan funds had to be used towards employee payroll in order for the loan to be forgiven. This new Act has reduced that to 60%. This means that businesses can now use 40% of the loan towards non-payroll expenses and still be eligible for forgiveness. This change was perhaps the most significant as it will make many more businesses (especially those who have not yet been able to hire back employees) eligible for loan forgiveness. Keep in mind, this means that businesses will now have 24 weeks to spend the funds on qualifying rent, utilities and mortgage payments on up to 40% of their PPP loan.
3. For loans that are not forgiven, borrowers now have a minimum of five years to repay the loan – up from the previous two years.
4. Borrowers now have until December 31, 2020 to get their “full-time equivalent” (FTE) employee count back to what it was in the reference period in order to avoid a reduction in the amount of the loan being forgiven. The original deadline was June 30, 2020.
5. The Act allows for two new exceptions for borrowers to achieve full PPP loan forgiveness even if they don’t fully restore their workforce. Borrowers were already allowed to exclude employees who turned down good-faith offers to be rehired at the same hours and wages as before the pandemic. The PPPFA adds that an employer can be exempt from the loan forgiveness reduction related to workforce restaffing if they can document that they:
- Are unable to find and hire similarly qualified employees for unfilled positions on or before December 31, 2020; or
- Are unable to restore business operations to the levels they were at on Feb. 15, 2020, due to COVID-19-related operating restrictions.
6. Under the new law, businesses can defer payment of the employer portion of the Social Security taxes until 2022 (50 percent to be paid in 2021 and the remainder in 2022), regardless of when the loan is forgiven.
7. Payments under the previous guidelines were set to be due after 6 months. Now payments are no longer due until the forgiveness amount is determined and remitted to the lender.
Although many of these changes eased some of the burdens borrowers felt, there are also some major issues that are awaiting clarification. These include:
- Forgiveness Calculation: Will businesses still be eligible for loan forgiveness if their payroll costs fall under 60% of the loan? Under the previous rule, if a company’s payroll expenses were less than 75% of the loan, they could still receive loan forgiveness, but the amount forgiven would be prorated. The way the new law is written, it is unclear whether loan forgiveness would be available for anyone whose payroll costs fall below 60% of the total loan.
- Compensation Limitations: Under the previous law, there was a cap for compensation for any employee making over $100,000. (The cap was $15,384 for the 8-week covered period). The question now is if the provision that increases the covered period to 24 weeks also allows for the salary of employees over $100,000 to be calculated at the 24-week period as well.
ShuffieldLowman’s Corporate Law and Banking & Finance teams are continuing to monitor the changes to the Paycheck Protection Program, and how these new laws will affect Central Florida businesses, banks, and lenders. To speak to an attorney, fill out our contact form.