The summit is a complimentary half-day event for women business owners who want to grow their business or are looking to sell their company within the next few years.

Register here: Women’s Business Summit.

LOCATION

Maslon LLP
225 South Sixth Street
Minneapolis, MN 55402

AGENDA

1:30 p.m. | Registration & Networking

1:45-1:50 p.m. | Opening Remarks and Introductions

Nicole Middendorf, Wealth Advisor, Raymond James Financial Services; CEO, Prosperwell Financial

1:50-2:40 p.m. | Panel Discussion: Business Exit Strategies to Consider

Panel discussion moderated by Dyanne Ross-Hanson, with panelists Nicole Middendorf, Susan Markey, Katie Monger, and Jo Trahms.

• How early should you begin planning to sell your business?
• Exit/transition options, and the advantages/disadvantages of each
• What your company is worth, and ways to increase value prior to a sale
• Role of a CPA, attorney, wealth advisor, and investment banker during a transaction
• Best practices for women business owners
• Readiness planning
• Q&A

2:40–3:05 p.m.: Break: Refreshments, Networking, and Connecting with Vendors

3:05–3:55 p.m.: Roundtable Discussion: Your Top Questions Answered by Successful Women Business Owners

Panel discussion moderated by Dyanne Ross-Hanson, with panelists Hillary Spreizer, Jill Haspert, Ashley Hawks, and Kathryn Tunheim.

• Buying, selling, and growing your business
• What do you know now that you wish you knew then?
• Q&A

3:55–4 p.m.: Closing Remarks

4-5 p.m.: Networking Reception

The book delivers a comprehensive analysis of the legal framework governing business and commerce in Minnesota, from choosing the right business entity and understanding tax implications to resolving shareholder disputes and navigating secured transactions.

For more information or to order, go to LexisNexis Minnesota Business and Commercial Law.

Susan is ranked in Chambers USA among the top corporate/M&A attorneys in Minnesota. She represents clients in general corporate, taxation, and nonprofit matters, drawing from a diverse background in government, accounting, and law to serve as a holistic business advisor. Susan regularly counsels clients on mergers and acquisitions, business formation, joint ventures, and general corporate matters, and she frequently assists with tax controversies, audits, appeals, planning, and structuring, as well as researching tax law and drafting legal appeals and memoranda. Susan also serves on the Maslon board of directors.

Katie, chair of the Corporate & Securities Group, assists clients across a broad range of corporate and transactional legal needs. She has managed and negotiated complex mergers & acquisitions, corporate reorganizations, buy-sell agreements, and business succession agreements. Her expertise also includes negotiating, drafting, and revising commercial contracts, with particular focus on technology-related agreements. In addition, she ensures clients remain up to date and compliant on data retention, website terms of use, and website privacy policies.

Terri, a business attorney and mediator, focuses her practice on M&A, restructurings and shareholder business divorces, and mediation of commercial disputes. She currently serves as a senior counsel with Maslon.

Yujin advises clients on contract drafting and negotiation, compliance issues, and general corporate law. Her background in international trade informs her approach to common and uncommon business challenges and how to successfully manage them.

Jessica assists clients in general corporate law, nonprofit formation, contracts, and mergers and acquisitions. Prior to attending law school, Jessica earned her master’s degree from Georgetown University in art and museum studies, and gained valuable experience as a museum collections and exhibitions manager and as a grant writer.

Matthew is an accomplished attorney and seasoned entrepreneur who returned to private practice after a decade of successfully running his own business. As the principal co-founder and board chair of Bauhaus Brew Labs, Matt has personally walked in the shoes of business owners, honing his capabilities in business finance, commercial transactions, strategic planning, and regulatory issues.

Laura is a Corporate & Securities Group associate who collaborates with corporate clients to achieve their business goals while protecting their legal interests. Laura focuses on mergers and acquisitions, contract drafting and negotiation, and legal compliance. She has a passion for helping small business owners and finds that these relationships are the driving force behind her work.

The summit is a complimentary half-day event for women business owners. Susan will serve as a panelist for "Business Exit Strategies to Consider."

RSVP here: Women's Business Summit.

AGENDA

1:30 p.m. | Check in

1:45-1:50 p.m. | Opening Remarks & Introductions

1:50-2:40 p.m. | Panel 1: Business Exit Strategies to Consider

Panel discussion moderated by Dyanne Ross-Hanson, with panelists Nicole Middendorf, Susan Markey, and Katie Monger.

• How early should you begin planning?
• Exit/transition options: Advantages and disadvantages of each
• What’s my company worth and ways to increase value prior to a sale
• Role of a CPA, attorney, wealth advisor, and investment banker during a transaction
• What you need to do before the year is over for your business
• Your top questions answered

2:40-3:05 p.m. | Networking

3:05-3:55 p.m. | Panel 2: Your Questions Answered from Women Business Owners: Successful Business Owner Roundtable

Panel discussion moderated by Julie Keyes, with panelists Melanie Porter, Mary Nutting, Lori Bauer, and Hillary Spreizer.

• Buying, selling, and growing your business
• Ask your questions of women business owners
• What do you know now that you wish you knew then?

3:55-4:00 p.m. | Closing Remarks

4:00-5:00 p.m. | Networking with Refreshments

"I am looking forward to learning more about Minnesota businesses, the challenges they face, and the issues that will shape the future of our state," Katie said. "I'm especially excited about the visits we will make to businesses throughout the state and the opportunity to talk with industry leaders."

Katie assists clients across a broad range of corporate and transactional legal needs. She has managed and negotiated complex mergers & acquisitions, corporate reorganizations, buy-sell agreements, and business succession agreements. Her expertise also includes negotiating, drafting, and revising a variety of commercial contracts, with particular focus on technology-related agreements. She ensures clients remain up to date and compliant on data retention, website terms of use, and website privacy policies, and she protects her clients' intellectual property interests in the areas of copyrights and trademark application and management.

Clients also rely on Katie's expertise in corporate governance issues; she frequently acts as outside general counsel, providing guidance on entity formation, operating agreements, shareholder control agreements, ownership disputes, employment disputes, and the drafting of company policies regarding communications, signing authority, spending authority, and related matters.

Susan's leadership has brought increasing diversity to the team; 45% of the attorneys in the Corporate & Securities Group are from underrepresented groups; over one-third are women.

Since 2019 Susan has worked on the board of Vision Loss Resources (formerly the Minneapolis and St. Paul Societies for the Blind) and currently serves as secretary. In a recent Instagram post, the organization described Susan this way: "As a valued board member at Vision Loss Resources, she's not just a legal powerhouse but also a dedicated advocate for a brighter future."

To learn more, see Susan Markey: Top Women in Law.

Susan will serve as a panelist for "Business Exit Strategies to Consider" and "Legal & Financial Strategies to Consider."

For more information or to register, write to Info@Maslon.com.

Susan represents clients in mergers and acquisitions, general corporate, taxation, and nonprofit matters. She draws from a diverse background in government, accounting, and law to serve as a holistic business advisor, and strongly believes that legal advice should be both easy to understand and practical.

A buy-sell agreement is an agreement that outlines what happens to an owner’s share in an entity when that owner desires to transfer shares upon their death or departure. Buy-sell agreements are frequently used by closely held corporations, LLCs, and partnerships to facilitate transitions in ownership. Connelly has far-reaching consequences for any company with a buy-sell agreement funded by life insurance.

A Tale of Two Brothers

Two brothers—Michael and Thomas Connelly—were the only shareholders in a small building supply corporation. Because they wanted the company to stay in the family upon either of their deaths, they entered into a buy-sell agreement requiring the company to buy the shares of the first brother to die if the surviving brother declined to purchase them. The company obtained a life insurance policy on each brother to make sure it would have enough money to satisfy this requirement. 

When Michael died, Thomas elected not to purchase Michael’s shares, triggering the company’s purchase obligation. The company used the $3 million in life insurance proceeds it received as a result of Michael’s death to buy the shares. As executor of Michael’s estate, Thomas was required to file a federal estate tax return detailing the value of Michael’s assets, including his shares in the company. Thomas engaged a third party who determined that Michael’s shares in the company were worth $3 million; however, the third party excluded the life insurance proceeds when determining the fair market value of the company. Thomas reported the $3 million value on the estate tax return, relying on the Eleventh Circuit’s decision in Estate of Blount, which held that insurance proceeds should not be included in the value of a corporation when they are “offset by an obligation to pay those proceeds to the estate in a stock buyout,” 428 F.3d 1338, 1345.  

The IRS disagreed with Thomas’s reasoning. During its audit of Michael’s estate, the IRS contended that the total valuation of the company should include the life insurance proceeds—thereby making the total value of the company $6.86 million, rather than $3.86 million, when Michael died. Accordingly, the IRS said that Michael’s estate should have paid higher taxes based on the higher valuation of Michael’s stock. The estate paid the taxes and then sued the IRS for a refund. 

Supreme Court: Life Insurance Counts in Estate Tax Valuation

The case made it all the way to the Supreme Court. The dispute focused on the inclusion of the life insurance proceeds as part of the company’s total fair market value for purposes of the estate tax. The Supreme Court sided with the IRS in a unanimous decision, holding that life insurance proceeds that will be used to redeem a decedent’s shares must be counted when calculating the value of those shares for estate tax purposes. The court emphasized that the point of the estate tax is to assess the value of Michael’s shares at the time he died—even if the value would be drastically different a day later, once the life insurance proceeds were paid out.

What It Means for Your Business

A better understanding of the consequences of their buy-sell agreement may have prevented years of litigation for the Connelly family. There were alternate options available. The brothers could have purchased life insurance policies on each other, rather than having the company take out the life insurance. This structure, known as a cross-purchase agreement, would have placed the life insurance proceeds outside the company’s assets, potentially reducing the estate tax burden. (It is important to note that a cross-purchase agreement may have had different tax consequences for the brothers personally, but would have avoided a situation where the company experienced a stark increase in valuation.)

Connelly affects any company—including corporations, LLCs, and partnerships—with a buy-sell agreement funded by life insurance. Companies utilizing buy-sell agreements funded by life insurance should promptly review these agreements to ensure the best possible arrangement is in place to accomplish their owners’ goals and minimize tax liability.

We Can Help

Each estate plan is unique to the individual’s circumstances and wishes. If you own shares in a closely held company, it is imperative that you fully understand the tax implications of both your business succession plan and estate plan. Maslon’s experienced Estate Planning and Corporate groups can work together to help you navigate the complexities of estate planning for closely held businesses to ensure your wishes are met and tax liabilities are minimized.

For more information or to register, go to Minnesota CLE: How to Draft Better Contracts.

Terri Krivosha is a former partner and now senior counsel and chair of professional development at Maslon. A business attorney and mediator, she enjoys nothing more than helping shareholders, family business owners, and companies buy or sell businesses or solve their legal problems—the more complicated, the better. As a deal lawyer, rather than a litigator, she is unique among mediators because she brings her many years of experience negotiating deals to the mediation table.

The seminar features two presentations:

• Demystifying the Deal: Business owners may be unfamiliar with the transaction process or simply looking to sharpen their understanding. This panel will provide a roadmap of what should happen before, during, and after the sale of a company.
• Five Ways to Maximize the Value of Your Business for Sale: Owners—and potentially their family members, co-investors, and other key stakeholders—know better than anyone what it has taken to grow their business and the impact that its sale would have on their future. Panelists describe how to help ensure a positive outcome.

To register for the event, go to M&A Seminar on Preparing Your Company for Sale.

Susan Markey, a partner and chair of Maslon's Corporate & Securities Group, represents clients in mergers and acquisitions, general corporate, taxation, and nonprofit matters. She draws from a diverse background in government, accounting, and law to serve as a holistic business advisor, and strongly believes that legal advice should be both easy to understand and practical.

Evan Berquist is a partner in Maslon's Corporate & Securities Group focusing on mergers and acquisitions, strategic financing transactions, and general corporate and commercial matters. He has a decade of experience in private practice, most recently at an AmLaw100 firm, managing both domestic and international transactions for a wide range of clients.

Katie Eisler, a Corporate & Securities Group partner, manages and negotiates complex mergers & acquisitions, corporate reorganizations, buy-sell agreements, and business succession agreements. Her expertise also includes negotiating, drafting, and revising a variety of commercial contracts, with particular focus on technology-related agreements.

Terri Krivosha is a former partner and now senior counsel and chair of professional development at Maslon. A business attorney and mediator, she enjoys nothing more than helping shareholders, family business owners, and companies buy or sell businesses or solve their legal problems—the more complicated, the better. Terri loves helping clients and parties to a mediation resolve conflict.

Terri and Susan team up for "Preventing Member Conflicts Under Chapter 322C: Drafting Challenges," in which they and Mitchell Hamline law professor Daniel Kleinberger discuss how transactional attorneys can help business owners plan for and prevent future disputes on the front end under Chapter 322C.

In addition, Terri presents "Negotiating Resolutions to Ownership Disputes Like a Pro to Avoid Litigation." In this session, she describes how to identify the questions your client is not asking (but should be) in a shareholder dispute, best practices for negotiating difficult issues, and how to identify themes in shareholder disputes that will help resolve the matter without litigation.

For more information or to register, go to Minnesota CLE: Ownership Disputes in Closely Held Businesses.

Terri, a business attorney and mediator, helps shareholders, family business owners, and companies buy or sell businesses or solve their legal problems. Whether guiding shareholders through a company split, managing a large merger/acquisition for a buyer or a seller, representing family members or business partners in the sale of a long-held business, or helping a company restructure to better align business and goals, Terri brings a time-tested sense of which approaches work and which do not. In her mediation work, Terri brings her many years of experience negotiating deals to the table—along with her high energy, active listening skills, creativity, and pragmatic approach. View her mediation bio here.

Susan represents clients in general corporate, taxation, and nonprofit matters. She draws from a diverse background in government, accounting, and law to serve as a holistic business advisor, and strongly believes that tax and corporate advice should be both easy to understand and practical. Susan assists clients with a wide array of tax issues, including tax controversies, audits, appeals, planning, and structuring, as well as researching tax law, drafting legal appeals, and memoranda. In addition to her tax practice, Susan counsels clients on mergers and acquisitions, business formation, joint ventures, and general corporate matters, while leveraging her tax background to help guide them toward profitable solutions.

For more information or to register, go to Minnesota CLE: Advanced M&A

Terri, a business attorney and mediator, helps shareholders, family business owners, and companies buy or sell businesses or solve their legal problems—the more complicated, the better. Whether guiding shareholders through a company split, managing a large merger/acquisition for a buyer or a seller, representing family members or business partners in the sale of a long-held business, or helping a company restructure to better align business and goals, Terri brings a time-tested sense of which approaches work and which do not. In her mediation work, Terri brings her many years of experience negotiating deals to the table—along with her high energy, active listening skills, creativity, and pragmatic approach. View her mediation bio here.

Susan represents clients in general corporate, taxation, and nonprofit matters. She draws from a diverse background in government, accounting, and law to serve as a holistic business advisor, and strongly believes that tax and corporate advice should be both easy to understand and practical. Susan assists clients with a wide array of tax issues, including tax controversies, audits, appeals, planning, and structuring, as well as researching tax law, drafting legal appeals, and memoranda. In addition to her tax practice, Susan counsels clients on mergers and acquisitions, business formation, joint ventures, and general corporate matters, while leveraging her tax background to help guide them toward profitable solutions.

For more information or to register, go to Minnesota CLE: Key Lessons for Complex Business Transactions

Susan represents clients in general corporate, taxation, and nonprofit matters. She draws from a diverse background in government, accounting, and law to serve as a holistic business advisor, and strongly believes that tax and corporate advice should be both easy to understand and practical. Susan assists clients with a wide array of tax issues, including tax controversies, audits, appeals, planning, and structuring, as well as researching tax law, drafting legal appeals, and memoranda. In addition to her tax practice, Susan counsels clients on mergers and acquisitions, business formation, joint ventures, and general corporate matters, while leveraging her tax background to help guide them toward profitable solutions.

Brad regularly represents manufacturers, contractors, technology, entertainment, and retail businesses in venture formations, raising capital, corporate finance, mergers & acquisitions, public reporting and general corporate matters. He has a diverse client base and enjoys working with businesses at different points of their life cycles. Brad works with entrepreneurs and dynamic startups to develop scalable business models and corporate structures for growth and raising capital. He also works with established businesses to raise capital in the private and capital markets, continue to grow organically and through strategic acquisitions, and to realize exit events.

For more information or to register, go to ALI-CLE: Structuring the Sale of a Business: Transaction Tips from the Trenches

Terri, a business attorney and mediator, enjoys nothing more than helping shareholders, family business owners, and companies buy or sell businesses or solve their legal problems—the more complicated, the better. Whether guiding shareholders through a company split, managing a large merger/acquisition for a buyer or a seller, representing family members or business partners in the sale of a long-held business, or helping a company restructure to better align business and goals, Terri brings a time-tested sense of which approaches work and which do not. In her mediation work, Terri brings her many years of experience negotiating deals to the table—along with her high energy, active listening skills, creativity, and pragmatic approach. View her mediation bio here.

Susan represents clients in general corporate, taxation, and nonprofit matters. She draws from a diverse background in government, accounting, and law to serve as a holistic business advisor, and strongly believes that tax and corporate advice should be both easy to understand and practical. Susan assists clients with a wide array of tax issues, including tax controversies, audits, appeals, planning, and structuring, as well as researching tax law, drafting legal appeals, and memoranda. In addition to her tax practice, Susan counsels clients on mergers and acquisitions, business formation, joint ventures, and general corporate matters, while leveraging her tax background to help guide them toward profitable solutions.

In her course, titled "Business Dissolution & Succession," Susan will share key steps in dissolving a business, how to value a business upon transfer, what to do if one owner dies, and much more.

To learn more or to register, visit Minnesota CLE, The Complete Business Lawyer.

Susan represents clients in general corporate, taxation, and nonprofit matters. She draws from a diverse background in government, accounting, and law to serve as a holistic business advisor, and strongly believes that tax and corporate advice should be both easy to understand and practical. With experience in a wide array of tax and corporate issues, Susan counsels clients on mergers and acquisitions, business formation, joint ventures, and general corporate matters, while leveraging her tax background to help guide them toward profitable solutions.

In the course, titled "Maximizing Business Value," Susan will describe key steps to grow a business's value, how and when to prepare a business for sale, common business owner mistakes, tax and legal issues, and more.

Moneyweave Academy is a nonprofit organization whose mission is to provide trustworthy, comprehensive, and competent financial planning education for women that inspires sound decision-making, purposeful action, and philanthropy. Susan is a member of the organization's board of directors.

To learn more or to register, visit Moneyweave: Maximizing Business Value.

Susan represents clients in general corporate, taxation, and nonprofit matters. She draws from a diverse background in government, accounting, and law to serve as a holistic business advisor, and strongly believes that tax and corporate advice should be both easy to understand and practical. With experience in a wide array of tax issues, Susan assists clients with tax controversies, audits, appeals, planning, and structuring, as well as researching tax law, drafting legal appeals, and memoranda. In addition to her tax practice, Susan counsels clients on mergers and acquisitions, business formation, joint ventures, and general corporate matters, while leveraging her tax background to help guide them toward profitable solutions.

• An Interim Final Rule ("Consolidated IFR") consolidating all of the rules applicable to PPP loans.
• An Interim Final Rule ("Second Draw IFR") on loans ("Second Draw PPP Loans") guaranteed by SBA to borrowers that previously received loans ("First Draw PPP Loans") under the PPP.

CONSOLIDATED IFR

The majority of the Consolidated IFR restates the previously released rules and guidance applicable to the PPP. However, the Consolidated IFR also clarifies the changes made to the PPP by the passage of the Economic Aid Act, as we highlighted in our previous legal alert: Coronavirus Relief Under the Consolidated Appropriations Act, 2021. Key changes made by the Economic Aid Act include deeming exchange-listed publicly held companies ineligible for PPP loans, deeming farmers and ranchers as eligible, and applying the "per location" employee headcount already applicable to restaurant and hotel businesses to certain news organizations.

SECOND DRAW PPP LOANS

Clarifications to Second Draw PPP Loans. Generally, Second Draw PPP Loans are subject to the same terms, conditions, and requirements as First Draw PPP Loans. However, borrowers seeking to obtain a Second Draw PPP Loan should be aware of several key considerations outlined in this alert. Supplementing the eligibility requirements in the Economic Aid Act (outlined in our previous legal alert: Coronavirus Relief Under the Consolidated Appropriations Act, 2021), the Second Draw IFR clarifies:

• For the requirement that an eligible borrower must have used (or will use) the "full amount" of the First Draw PPP Loan on or before the expected date on which the Second Draw PPP Loan is (or will be) disbursed, the Second Draw IFR clarifies the calculation of the "full amount" includes any increase on a First Draw PPP Loan made pursuant to the Economic Aid Act.
• For the requirement that an eligible borrower must have experienced a reduction in gross receipts of 25% or greater in at least one quarter in 2020 as compared to the corresponding quarter in 2019, the Second Draw IFR deems a borrower that was in business all four quarters of 2019 to have experienced the required revenue reduction if it experienced a reduction in annual receipts of 25% or greater in calendar year 2020 compared to calendar year 2019 if the borrower submits copies of its annual tax forms.
• The following entities are not eligible for a Second Draw PPP Loan: (a) any entity that previously received a Second Draw PPP Loan, and; (b) any entity that has permanently closed.
• Borrowers may use calendar year 2020 for calculating its payroll costs, in addition to calendar year 2019 and the twelve-month period prior to when the loan is made.
• A borrower that is a hotel or restaurant and also constitutes a seasonal business may calculate its average payroll costs based on the applicable methodology (i.e., by virtue of its status as a seasonal business), but is still eligible for the 3.5 multiplier applicable to hotel and restaurant businesses.
• Businesses that are part of a single corporate group may receive no more than $4,000,000 of Second Draw PPP Loans in the aggregate, which is less than the $20,000,000 maximum amount for corporate groups relating to First Draw PPP Loans.

Loans to Borrowers with Unresolved First Draw PPP Loans. If a lender submits an application for a guaranty of a Second Draw Loan for a borrower whose First Draw PPP Loan is under review (an "Unresolved Borrower"), the lender will not receive an SBA loan number until the issue related to the First Draw PPP Loan is resolved. SBA will set aside available appropriations to fund Second Draw PPP Loans applied for by Unresolved Borrowers.

Gross Receipts. "Gross receipts" for the purpose of calculating the revenue reduction is defined as all revenue in whatever form received or accrued (in accordance with the entity's accounting method) from whatever source, including the sales of products or services, interest, dividends, rents, royalties, fees, or commissions, reduced by returns and allowances. Generally, receipts are considered "total income" plus "cost of goods sold," and excludes net capital gains or losses as these terms are defined and reported on IRS tax return forms. Gross receipts do not include the following:

• taxes collected for and remitted to a taxing authority if included in gross or total income (such as sales or other taxes collected from customers and excluding taxes levied on the concern or its employees);
• proceeds from transactions between a concern and its domestic or foreign affiliates; and
• amounts collected for another by a travel agent, real estate agent, advertising agent, conference management service provider, freight forwarder, or customs broker.

All other items, such as subcontractor costs, reimbursements for purchases a contractor makes at a customer's request, investment income, and employee-based costs such as payroll taxes, may not be excluded from gross receipts.

If a borrower has acquired an affiliate or been acquired as an affiliate during 2020, gross receipts includes the receipts of the acquired or acquiring concern. In addition, the amount of any forgiven First Draw PPP Loan is not included toward the borrower's gross receipts.

Certifications. On the Second Draw PPP Loan application, an authorized representative of the borrower must make all of the certifications required to obtain a First Draw PPP Loan, except the certification that the borrower has not and will not receive another loan under the PPP is replaced with a certification that the borrower has not and will not receive another Second Draw PPP Loan. Importantly, this means that a borrower applying for a Second Draw PPP Loan will once again need to certify that current (presumably at the time of the Second Draw application) economic uncertainty makes the loan request necessary to support its ongoing operations.

In addition, the application will need to make additional certifications specific to Second Draw PPP Loans as required by the Economic Aid Act (e.g., it experienced a 25% reduction in gross receipts, it has received a First Draw PPP Loan, which has been or will be used by the date the Second Draw PPP Loan is disbursed). The new Second Draw applications are expected to be available very soon.

We Can Help

Please contact Maslon's Corporate & Securities Group if you have questions or need assistance applying for a loan under the revived Paycheck Protection Program.

1. Tax Implications: PPP Loan Expenses Are Tax Deductible

The Act provides that business expenses paid for with forgiven PPP loan proceeds are tax deductible under the Internal Revenue Code. This reverses previous IRS guidance that such expenses were not deductible. Providing welcome relief to loan recipients, the Act specifies that "no deduction shall be denied or reduced, no tax attribute shall be reduced, and no basis increase shall be denied, by reason of the exclusion from gross income provided by [the provision stating forgiven PPP loans do not count as income]." For PPP loan recipients that already submitted a tax return, talk to your accountant about amending your return if you did not previously deduct your expenses.

Additional Deduction: The Act also temporarily allows for the full deduction of business meals provided by a restaurant paid or incurred between December 31, 2020 and January 1, 2023.

2. Second Round of PPP Loans

The Act also injects another $284 billion into PPP loans, allowing first-time borrowers to apply for a PPP loan and businesses that previously received PPP funds in the first round of loans to qualify for additional funding if they demonstrated specified reductions in gross receipts.

To receive a "second draw" of PPP funding, borrowers must:

• employ fewer than 300 people (or meet an alternative size standard),
• have used or will use the full amount of their first PPP loan, and
• demonstrate there was a 25% reduction from the gross receipts of the entity during at least one quarter in 2019 compared to the same quarter in 2020.

Borrowers may receive loan amounts of up to 2.5 times their average monthly payroll costs in the one year period prior to the loan date or the 2019 calendar year, but the second round of funding is capped at $2 million per borrower (rather than $10 million under the first round). The Act also made clear that group life, disability, vision, and dental insurance benefits may be included in calculating payroll costs.

Accommodation and Food Service Industry Adjustment: Borrowers in the accommodation and food service industry (NAICS code 72) are eligible to receive 3.5 times their average monthly payroll costs in the one year period prior to the loan date or the 2019 calendar year (capped at $2 million per borrower), provided borrowers with more than one physical location do not employ more than 300 employees per physical location (down from 500 employees per physical location in the first round of funding).

Seasonal Employer Loan Amount Calculation: For seasonal employers applying for a new PPP loan, the maximum loan amount is based on the average monthly payroll costs for a 12-week period selected by the employer that begins February 15, 2019 or March 1, 2019 and ends June 30, 2019. Or, the employer may elect to use any consecutive 12-week (any 96 consecutive days) period beginning after February 14, 2020 and ending before January 1, 2021 multiplied by 2.5, not to exceed $2 million.

Loan Forgiveness: Borrowers will receive full loan forgiveness if they spend a minimum of 60% of their second round PPP loan on payroll costs over a time period of their choosing between eight weeks and 24 weeks. As with the first round of funding, costs eligible for loan forgiveness include payroll, rent, covered mortgage interest, and interest. The Act also makes facility modification expenditures (such as drive-through window facilities and an expansion of additional indoor or outdoor business space), personal protective equipment, and operating costs for software and cloud computing services potentially covered. Publicly traded companies are not eligible for the new PPP loans.

Good Faith Certification: Importantly, although a borrower may technically qualify for the second round of PPP loan funding, borrowers will still need to certify in good faith, as set forth in the CARES Act, that the "uncertainty of current economic conditions makes necessary the loan request to support the ongoing operations" of the borrower. This good faith certification may, in some cases, be more difficult for borrowers to make now than it was in early 2020, depending upon the borrower's financial performance in 2020. For the first round of PPP loans the Small Business Administration ("SBA") issued guidance that any borrower, together with its affiliates, that received PPP loans in an original principal amount of less than $2 million was automatically deemed to have made the required certification in good faith, but it is unclear whether that safe harbor will be applied to the second round of funding. Regulations carrying out the Act must be issued by the SBA within 10 days of the Act's enactment.

3. Simplified PPP Loan Forgiveness Application

The Act also creates a simplified forgiveness form for PPP loans of $150,000 or less, including those made during the first round of lending. Forgiveness will be granted if the recipient signs and submits to its lender a certification that is no more than one page, includes a description of the number of employees the recipient retained as a result of the loan, the estimated total amount of the loan spent on payroll costs, and the total loan amount. Recipients must retain records related to employment for four years and other records for three years. The SBA must create this form within 24 days after the Act's enactment.

4. PPP Loan Audits

Within 45 days of the Act, the SBA must submit to Congress an audit plan for conducting forgiveness rules and audits of PPP loans. This will be of interest to those borrowers who received a loan in excess of $2 million, and thus will be automatically subject to an SBA loan audit.

5. Entertainment Aid

Separate from the PPP program, $15 billion was earmarked for grants to live event operators or promoters, theatrical producers, live performing arts organization operators, cultural museums, movie theaters, and talent representatives. To receive a grant, the recipient must (among other requirements), have been fully operational on February 29, 2020, and have gross earned revenue during the first, second, third, or (with respect to applications submitted after January 1, 2021), fourth quarter of 2020 that demonstrates at least 25% percent reduction from the gross earned revenue during at least one of the same quarters in 2019. Entities that count in more than two of the following groups do not qualify for grants: publicly traded companies, multinational companies, companies that operate in more than 10 U.S. states, employ more than 500 full-time employees, or companies that receive at least 10% of its revenue from federal government sources.

6. Employment Implications

Under the Act, as of December 31, 2020, employers are no longer required to provide Emergency Paid Sick Leave or paid Emergency Family and Medical Leave under the Families First Coronavirus Response Act (FFCRA). However, covered employers can voluntarily provide this leave, and if they choose to do so, they can take the tax credit associated with this leave through March 31, 2021. With that said, all employers should still be mindful of other paid leave requirements under state and local laws, as well as their own paid leave and PTO policies. Many state and local governments enacted similar paid COVID-leave laws and ordinances to assist employees dealing with COVID-19, and while some of those laws also expire on December 31, 2020, some do not.

The Act also extends the Employee Retention Tax Credit—a refundable tax credit against certain employment taxes—to June 30, 2021 and increases the fully refundable portion of the qualified wages from 50% to 70%, meaning employers can receive a 70% credit on up to $10,000 of wages per employee per quarter.

We Can Help

Please contact Maslon's Corporate & Securities Group or Labor & Employment Group if you have questions or need assistance taking advantage of the relief provided under the Consolidated Appropriations Act, 2021.

Susan represents clients in general corporate, taxation, and nonprofit matters. She draws from a diverse background in government, accounting, and law to serve as a holistic business advisor, and strongly believes that tax and corporate advice should be both easy to understand and practical. Susan assists clients with a wide array of tax issues, including tax controversies, audits, appeals, planning, and structuring, as well as researching tax law, drafting legal appeals, and memoranda. In addition to her tax practice, Susan counsels clients on mergers and acquisitions, business formation, joint ventures, and general corporate matters, while leveraging her tax background to help guide them toward profitable solutions.

Susan is dedicated to advancing the profession as well as informing her clients on key issues in her area of practice. She writes and presents regularly on tax-related topics. Most recently, she co-authored an article for Thomson Reuters' Practical Law, titled "Sales and Use Tax for Remote Sellers: Minnesota," that serves as a Q&A guide to remote sellers' exposure to sales and use tax in Minnesota after the U.S. Supreme Court's decision in South Dakota v. Wayfair, Inc.

For more information or to register, go to: Sage, "PPP and Forgiveness Updates."

Terri Krivosha, partner in Maslon's Corporate & Securities Group, will present a webinar titled "Let's Dissect a Buy Sell Agreement" for the Exit Planning Institute on June 11, 2020. During her presentation, Terri will discuss the basics of buy sell agreements and how they can be a catalyst to help protect clients from potentially catastrophic situations before they happen through effective collaboration with competent legal counsel. Following the presentation, Terri will moderate a panel discussion made up of Maslon attorneys Adam Duerr, Susan Markey, and Mike Sampson, who will discuss best practices on executing buy sell agreements.

To learn more or to register, go to: Exit Planning Institute – "Let's Dissect a Buy Sell Agreement."

Terri is passionate about helping businesses grow, succeed, and scale. As a strategic business attorney, she helps a vibrant network of entrepreneurial and dynamic businesses see the "forest through the trees."

Terri works directly with the business people who lead organizations, providing general counsel advice that is not only prompt and pragmatic, but also customized to fit the stage of the client's business. She is exceptionally skilled at negotiating and drafting multiple kinds of contracts, strategic partnerships, and joint ventures; developing and implementing exit strategies; advising on selling or buying companies and raising capital to recapitalize businesses; and coaching clients on complex governance matters. Terri works with clients in many industries, including manufacturing, technology, healthcare, consumer products, and professional services, bringing her experience in one industry to inform her advice in other industries. Terri is also a Certified Exit Planning Advisor.

Mike’s legal practice focuses on high-end estate and tax planning, estate and trust administration, charitable planning, and business succession planning. Michael helps his clients focus on what it is they really want to accomplish with their wealth. After assisting his clients in identifying their specific wealth planning goals, Michael works with them and their other professional advisors to develop and implement wealth transfer strategies that are consistent not only with their goals, but also with their cash flow needs and tolerance for risk.

Susan represents clients in general corporate, taxation, and nonprofit matters. She relies on her diverse background in government, accounting, and law to act as a holistic business advisor, and strongly believes that tax and corporate advice should be both easy to understand and practical. Susan assists clients with a wide array of tax issues, including tax controversies, audits, appeals, planning, and structuring, as well as researching tax law, drafting legal appeals, and memoranda. In addition to her tax practice, Susan counsels clients on mergers and acquisitions, business formation, joint ventures, and general corporate matters, while leveraging her tax background to help guide them toward profitable solutions.

Adam assists both public and private companies as well as private equity funds in an array of business transactions, including mergers and acquisitions, divestitures, and internal reorganizations. Adam also advises clients on corporate governance, operating, compliance, and contractual matters. He is skilled at preparing a broad assortment of corporate and transactional documents, including formation and governing documents, purchase and sale agreements, and offering documents. Before joining Maslon, Adam served as in-house counsel at a Global Fortune 6 company, providing legal corporate governance support to its domestic and international subsidiaries. He also brings beneficial experience from having worked at two large private law firms.

• Term. The minimum term to repay any non-forgiven proceeds for any new PPP loans is extended from 2 to 5 years (the interest rate remains at 1%). For existing loans, lenders and borrowers will have to agree to an extension.
• Covered Period. Under the prior program rules, for the loan to be forgiven, a borrower needed to use loan proceeds on specified eligible expenses during the 8-week period after receiving the loan or the 8-week period starting on the date of the first payroll cycle after receiving the loan. Now, current PPP borrowers can opt to extend the period to 24 weeks following receipt of loan proceeds, or elect to keep the original 8-week period. Any new PPP borrowers will have a 24-week covered period, but such period cannot extend beyond December 31, 2020. It is unclear at the time how the move to a 24-week covered period will impact the $15,385 cap payment to any individual employee during the 8-week period (i.e. $100,000 annualized for the 8-week period), referenced in the SBA Rules and Loan Forgiveness Application. Updated guidance from the SBA is expected. Importantly, the extension of the covered period does not extend the deadline to apply for a PPP loan, with applications for new PPP loans being accepted through June 30, 2020.
• Payroll Cost. To qualify for loan forgiveness, borrowers now must spend 60% of loan proceeds on payroll costs (previously, the SBA imposed a 75% requirement), and may use up to 40% of loan proceeds on interest payments on mortgage obligations (excluding prepayments of or payments of the principal), rent payments, or utility payments. Importantly, although this 60/40 requirement provides additional flexibility, it now appears to be a "cliff." The borrower must spend a minimum of 60% of its loan on payroll costs or none of the loan will be forgiven (i.e. if you spend 41% of loan proceeds on rent and utilities, the entire loan becomes ineligible for forgiveness).
• Rehire Safe Harbor. Previously, to be eligible for full loan forgiveness, a borrower was required to restore its full-time equivalent employee ("FTE") level and restore reduced wages (reduced by more than 25%) to the February 15, 2020 levels by June 30, 2020. This date is extended to December 31, 2020.
• Employee Availability Exemption. New under the Act, borrowers will be now exempted from a proportional reduction in loan forgiveness due to a reduction in the number of FTEs if, in "good faith," the borrower is able to document that between February 15, 2020, and December 31, 2020, the borrower was unable to (1) rehire employees who had been employed on February 15, 2020, or hire similarly qualified employees for unfilled positions on or before December 31, 2020; or (2) return to the same level of business activity at which such business was operating at before February 15, 2020, due to compliance with federal guidance related to the maintenance of standards for sanitation, social distancing, or any other worker or customer safety requirement related to COVID–19.
• Extended Deferral Period. The Act removes the previous 6-month period to defer PPP loan payments and provides instead for deferral until the borrower applies for forgiveness. However, in the event the borrower fails to apply for forgiveness within 10 months after the last day of the covered period for PPP loan forgiveness, the borrower must then begin making payments of principal, interest, and fees on the loan.
• Defer Payroll Taxes. Borrowers may now defer payment of payroll taxes incurred between March 27 and December 31, 2020 (previously, borrowers were prohibited from both obtaining a PPP loan and utilizing this tax deferral under the CARES Act).

Next Steps

In light of these reforms, current borrowers should consider taking the following steps:

1. Reach out to your lender to request a loan term extension if you think any portion of the loan might not be forgiven.
2. If you elect to use the 24-week covered period, recalculate your payroll costs for the 24-weeks from your loan origination date. If you reduce the amount of loan proceeds you are using on payroll costs, ensure you are still using at least 60% of the proceeds on payroll.
3. If you anticipate difficulties in eliminating the reduction in the number of FTEs by December 31, 2020 (i.e., hiring similarly qualified or re-hiring the same employees to your pre-February 15, 2020 numbers), or you have concerns about the ability for your business to return to the same level of business activities by such time, thoroughly document any evidence supporting these concerns and your related business decisions. For example, document all written job offers, rejections and job postings, and all steps your business is taking to comply with OSHA, CDC, and HHS procedures.

We Can Help

Please contact Maslon's Corporate & Securities Group if you have questions or need assistance taking advantage of the relief provided under the CARES Act, as amended by the Paycheck Protection Program Flexibility Act of 2020.

Ordinarily, to be eligible for an SBA Section 7(a) business loan, businesses must be unable to obtain credit elsewhere. The PPP waives this "credit elsewhere" test, thereby expanding greatly the pool of potential business applicants. However, the PPP requires that a business certify in good faith that "[c]urrent economic uncertainty makes [its] loan request necessary to support [its] ongoing operations."

Prior to April 23, 2020, the SBA had offered little guidance on the meaning of this certification. But in the wake of high-profile publicly held companies returning their PPP loan proceeds, the SBA clarified on April 23, 2020, that this certification requires businesses to "take into account their current business activity and their ability to access other sources of liquidity sufficient to support their ongoing operations in a manner that is not significantly detrimental to the business." The SBA stated further that "it is unlikely that a public company with substantial market value and access to capital markets will be able to make the required certification in good faith, and such a company should be prepared to demonstrate to the SBA, upon request, the basis for its certification." Unfortunately, neither "substantial market value" nor "access to capital markets" was defined.

Key Considerations
This guidance raises potential issues for businesses who have already received PPP loans. Business recipients of a PPP loan must consider whether, in light of the SBA's new guidance, its certification of need ("necessary to support ongoing operations") remains accurate and made in good faith. This applies with equal force to private and publicly held companies.

However, the language in the SBA's new guidance raises especially difficult issues for publicly held companies. Despite meeting PPP size and affiliation requirements, publicly held companies need to consider whether they have "substantial market value" and "access to capital markets" given the lack of definitions of these terms. Further, the SBA's requirement that businesses analyze "their ability to access other sources of liquidity sufficient to support their ongoing business operations" appears to directly contravene the waiver of the "credit elsewhere" test.

While the SBA's language does not preclude all publicly held companies from obtaining a PPP loan, given the SBA's explicit example of an ineligible business as one that is publicly held, these companies must take extra precaution in analyzing their certification of need. Without further clarification on what constitutes "substantial market value," even publicly held companies with relatively small market capitalization must analyze whether they remain eligible.

Consequences of Bad Faith
Making a false statement in connection with obtaining a PPP loan can lead to serious consequences, including, but not limited to, criminal liability. However, on April 24, 2020, the SBA issued a supplemental Interim Final Rule on the PPP, providing a safe harbor for any business that applied for a loan prior to April 24, 2020, but now believes it is ineligible for lack of need. So long as such business applicant repays the loan in full by May 7, 2020, the SBA will deem the business to have made its certification in good faith.

Best Practices for Good Faith
Reports are emerging that some public companies of relatively large size are determining that they can retain their PPP loans despite the unclear language of the SBA guidance, while other companies are repaying their loans. Companies retaining the loans may have relied on language in the guidance that they are eligible if they are not able to "access other sources of liquidity sufficient to support their ongoing operations in a manner that is not significantly detrimental to the business." Given the requirement that the certification must be made in good faith, we encourage companies that conclude that they are eligible to obtain or retain the PPP loans in light of the SBA's guidance to carefully document their analysis in support of this conclusion.

We Can Help
Please contact Maslon's Corporate & Securities Group if you have questions or need assistance analyzing your eligibility for a loan under the Paycheck Protection Program.

Amy focuses her legal practice primarily on assisting lenders and other commercial creditors, asset purchasers, and adversary proceeding defendants with creditor rights and bankruptcy issues. She is an experienced litigator in the bankruptcy courts in Minnesota and other jurisdictions. Amy also assists lenders in real estate foreclosures, receiverships, pursuing loan collateral, negotiating workouts, and drafting commercial loan documentation. Amy has counseled creditors in major chapter 11 bankruptcies, including Delta Air Lines, Petters Company, Magnetation LLC, Polaroid, Essar Steel, Gander Mountain, Toys "R" Us, Interstate Bakeries, Premier Entertainment, and United Homes.

Susan represents clients in general corporate, taxation, and nonprofit matters. She relies on her diverse background in government, accounting, and law to act as a holistic business advisor, and strongly believes that tax and corporate advice should be both easy to understand and practical. Susan assists clients with a wide array of tax issues, including tax controversies, audits, appeals, planning, and structuring, as well as researching tax law, drafting legal appeals, and memoranda. In addition to her tax practice, Susan counsels clients on mergers and acquisitions, business formation, joint ventures, and general corporate matters, while leveraging her tax background to help guide them toward profitable solutions.

For more information or to register, go to: Minnesota State Bar Association, "Understanding the CARES Act Paycheck Protection Program."

Susan represents clients in general corporate, taxation, and nonprofit matters. She relies on her diverse background in government, accounting, and law to act as a holistic business advisor, and strongly believes that tax and corporate advice should be both easy to understand and practical. Susan assists clients with a wide array of tax issues, including tax controversies, audits, appeals, planning, and structuring, as well as researching tax law, drafting legal appeals, and memoranda. In addition to her tax practice, Susan counsels clients on mergers and acquisitions, business formation, joint ventures, and general corporate matters, while leveraging her tax background to help guide them toward profitable solutions. Susan is also passionate about working with nonprofit organizations that serve our community. Her combined knowledge about business and taxation assists them with their complex and unique needs.

Susan writes regularly on tax-related topics. Recently, she co-authored an article for Thomson Reuters' Practical Law, titled "Sales and Use Tax for Remote Sellers: Minnesota," that serves as a Q&A guide to remote sellers' exposure to sales and use tax in Minnesota after the U.S. Supreme Court's decision in South Dakota v. Wayfair, Inc. From 2007-2011, Susan served as a law clerk to the Honorable James T. Swenson, Chief Judge of the Hennepin County District Court.

For more information or to register, go to: Sage, "CARES Act Deep Dive."

President Trump signed into law an updated version of the CARES Act (the "Act") on March 27, 2020. The Act provides an estimated two trillion dollars' worth of relief for individuals and businesses in an effort to mitigate the effects of the ongoing COVID-19 pandemic. The Act makes available emergency funds in the form of loans, credits, and grants to businesses of all sizes.

Given the emergent situation, the Act was drafted and passed expeditiously, which resulted in certain provisions (and programs) lacking detail or otherwise requiring further rulemaking. The summary below provides our current understanding of the Act, but as more details are made available (i.e., rules are promulgated by the applicable government bodies and/or insight is gained from our experience with the Act), Maslon will provide updates. 

Update: The summary below has been updated to include information on the Main Street Lending Program announced on April 9, 2020, and to reflect clarifications found within the Interim Final Rule for the Paycheck Protection Program released on April 2, 2020 (the "Interim Final Rule"). The full Interim Final Rule is available at sba.gov.

Scroll down to view the full information on key resources available to businesses, including provision eligibility and processes, or use the below links to go directly to the section which interests you most:

• Business Loans
  • Paycheck Protection Loans for Small Businesses
  • Expansion of SBA Disaster Loans
  • Direct Loans for Eligible Businesses
  • Mid-Size Direct Lending Program (Pending)
  • Main Street Lending Program
• Tax Credits
  • Employee Retention Tax Credits
  • Delay of Payment of Employer Payroll Taxes
  • Net Operating Losses
• Additional Provisions

Business Loans

Paycheck Protection Loans for Small Businesses

The most significant financial resource available for small businesses under the Act is the "Paycheck Protection Program" (the "Program"). Employers with 500 or fewer employees can obtain loans under this Program through the Small Business Administration ("SBA") Section 7(a) loan program to pay for payroll costs and other expenses (e.g., interest on mortgage loans and other secured debt, rent and utility costs) from February 15, 2020, through June 30, 2020. Payroll costs include employee salary (up to $100,000/year for an individual employee), wages, commissions, payment for vacation, parental, family, medical, or sick leave, health and retirement benefits payments, and other costs.

The SBA clarified in the Interim Final Rule that payments made to independent contractors do not constitute payroll costs. The SBA clarified in the Interim Final Rule – Additional Eligibility Criteria and Requirements for Certain Pledges of Loans that payroll costs also include partnership draws. Partnerships and limited liability companies filing taxes as a partnership may report the self-employment income of general active partners as payroll costs (up to $100,000 annualized) on a PPP loan application filed by or on behalf of the partnership. A partner cannot submit a separate loan application as a self-employed individual. The Interim Rule is inconsistent on whether the payroll cost calculation is based upon the trailing twelve months prior to submitting a loan application or the prior calendar year. Maslon will provide additional updates as more guidance becomes available.

Loan Eligibility

Loans under the Program are available to the following businesses as long as the business was operational as of February 15, 2020, had employees, and paid wages and payroll taxes:

• Businesses with up to 500 employees, including part time employees.
• "Small business concerns" are generally eligible for SBA loans, which are independently owned and operated for-profit companies with a place of business in the U.S. (and that operate primarily within the U.S. or make significant contributions to the U.S. economy through the payment of taxes or use of American products, materials, or labor). This would generally exclude nationally-recognized companies. Whether a business is an eligible small business concern is determined by established SBA regulations, based upon limits on either revenue or employee count. Such limits vary by industry. Refer to the SBA's Table of Small Business Size Standards Matched to NAICS Codes, available at sba.gov.
• Businesses in the Accommodation and Food Service Industries (e.g., full-service restaurants, hotels) are eligible provided that if the business has more than one physical location, it does not employ more than 500 employees at each location.
• SBA "affiliation rules"—meaning that the SBA generally counts the employees or annual receipts of a business's affiliates when determining eligibility—are also waived for: (1) businesses in the Accommodation and Food Service Industries that employ not more than 500 employees; (2) franchises; or (3) businesses that receive financial assistance from a small venture investment company licensed under the SBA. For example, if a restaurant owner owns 51% of another restaurant business, the general SBA rule that the employees or receipts of the second restaurant is/are counted in determining the business's eligibility is waived.

Loan Details

• Non-seasonal businesses (in existence between February 15, 2020, through June 30, 2020) may obtain loans for up to $10 million. However, the amount of the loan a non-seasonable business is eligible for would be the lesser of: (1) The average monthly payroll costs (as described above) during the year prior to making the loan x 2.5; or (2) $10 million. Note, however, that the outstanding amount of any loan made under the SBA's Disaster Loan Program between January 31, 2020, and the date upon which such loan may be refinanced as part of the Program will be added to the preceding sub-section (1), which could further increase the loan money available to a business.
• Standard fees for SBA Section 7(a) loans are waived for loans made under the Program. The SBA's "credit elsewhere" test (i.e., the requirement that a small business is unable to obtain credit elsewhere) is also waived for these loans.
• Loans are required to be without recourse, must be unsecured, and cannot require a personal guarantee. 
• No yearly or guarantee fees for the loan, and all prepayment penalties are waived.
• The SBA clarified in the Interim Final Rule that the interest rate for a loan is 1%.
• The SBA clarified in the Interim Final Rule that loan payments are deferred for six months. Interest will continue to accrue during the deferment period.
• The SBA clarified in the Interim Final Rule that least 75% of the loan amounts must be used for payroll costs.
• The SBA clarified in the Interim Final Rule that loan maturity is 2 years.
• Because payroll costs only include employee cash compensation and partnership draws up to $100,000/year, businesses should take care not to use loan proceeds to pay any portion of these items in excess of $100,000. For example, if an employee earns $120,000/year, the employer may use loan proceeds to pay $100,000 on a pro rata basis of the employee’s salary, but must pay the remaining $20,000 on a pro rata basis using other funds. For purposes of loan forgiveness, this means a maximum of $15,385 per individual of loan proceeds may be used during the eight-week covered period.
• Please note that if PPP funds are used for unauthorized purposes, the SBA will direct businesses to repay those amounts. Knowingly misusing these funds may subject the business, shareholders, partners, and/or members to additional liability, such as fraud charges.

Loan Forgiveness

• Loans used for eligible expenses incurred during the 8-week period following the date of origination may be forgiven. In addition to payroll costs, eligible expenses include mortgage and other secured-debt interest payments, rent, and utilities, so long as those expenses existed as of February 15, 2020. For non-seasonal employers, the amount eligible for forgiveness is reduced by the following formulas:
  1. For reductions in employees, the maximum amount eligible for forgiveness, multiplied by:
     1. The average number of full-time equivalent employees ("FTEs") per month, calculated by the average number of FTEs for each pay period within a month, for the period between February 15, 2020, through June 30, 2020, divided by either, at the election of the employer:
        • The average number of FTEs per month employed from February 15, 2019, to June 30, 2019; or
        • The average number of FTEs per month employed from January 1, 2020, to February 29, 2020.
  2. For reductions in wages, the amount of any reduction in total salary or wages of any employee for the period between February 15, 2020, through June 30, 2020, that exceeds 25% of the employee's salary or wages during the employee's most recent full quarter of employment before the period before February 15, 2020.
• Employers who have terminated employees or reduced employee wages may be relieved from these forgiveness reduction penalties if they rehire employees or make up for wage reductions by June 30, 2020. Specifically, the above calculations to reduce amounts eligible for forgiveness will not apply if an employer either:
  1. Reduces its number of employees between February 15, 2020, and April 26, 2020, but subsequently "eliminated the reduction in the number of full-time equivalent employees"; or
  2. Conducts a salary reduction between February 15, 2020, and April 26, 2020, but subsequently raises salaries to pre-February 15, 2020, levels by June 30, 2020.
• Loan funds used to pay additional wages to tipped employees are also eligible for forgiveness. The Act is unclear if this includes tips and base wages or just base wages.
• Any forgiven amounts will not be considered taxable gross income.
• The SBA is required to issue regulations on the specifics of loan forgiveness (and deferment) under the Program within 30 days of the Act's enactment (i.e., by April 26, 2020).
• The SBA clarified in the Interim Final Rule that forgiveness for non-payroll costs (e.g. mortgage interest, utilities) is limited to 25% of the total amount forgivable.

Loan Process

• To obtain a loan under the Program, eligible businesses should apply through participating lenders offering SBA loans. In applying, the business must make good faith certifications that:
  1. The uncertainty of current economic conditions makes the loan necessary;
  2. Acknowledge the funds will be used for the allowable expenses (i.e., applicable payroll costs, mortgage, and other secured loan interest, rent, and utilities);
  3. The eligible business does not have a duplicate SBA loan application pending; and
  4. The eligible business has not received any duplicative loan amounts under the Program at any time after February 15, 2020, through the date on which the business obtains a loan through the Program.
• A business may not obtain multiple loans through the Program for the same purpose (i.e., loans that are duplicative of other loans received under the Program).
• Self-employed individuals, sole proprietors, and independent contractors applying for loans under the Program are required to provide certain documentation to prove eligibility, such as payroll tax filings, Forms 1099-MISC, and income and expenses from the sole proprietorship. Beyond the additional documentation requirements, the application process for these individuals is the same as for other businesses.

Expansion of SBA Disaster Loans

The Act also expands business access to economic injury disaster loans ("EIDL") through the SBA Economic Injury Disaster Loan Program. This expansion will be in effect between January 31, 2020, through December 31, 2020. These types of loans were previously available only for small business concerns, as defined by SBA, but are now temporarily available to business concerns with up to 500 employees.

Loan Eligibility

• Small business concerns, defined above; or
• Businesses with up to 500 employees.

Loan Details

• Unlike the Paycheck Protection Program, the Act does not provide for forgiveness of EIDLs.
• The amount available under an EIDL is based upon cash flow projections and demonstrated need, with a cap at $2,000,000.
• Loans may be used to pay expenses incurred in the ordinary course of business. Ordinary expenses include, but are not limited, to:
  1. Providing sick leave to employees unable to work because of the ongoing pandemic;
  2. Maintaining payroll;
  3. Meeting increased supply chain costs;
  4. Rent and mortgage payments; and
  5. Repaying debts that cannot be paid due to lost revenue.
• In general, existing rules applicable to the terms of EIDLs apply. However, two existing requirements are revised for EIDLs obtained through December 31, 2020. Specifically, for loans made during this period:
  1. Personal guarantees are not required for loans up to $200,000; and
  2. The SBA will not require that the business is unable to obtain credit elsewhere.
• Interest rates are subject to change, but currently set at 3.75%.
• Term lengths of EIDLs are either 15 or 30 years.

Loan Advance

• A business applying for an EIDL in response to COVID-19 may request an emergency advance from the SBA for up to $10,000. The advance must be paid by the SBA to the business within three days after receipt of the application.
• An advance received does not have to be repaid by the business, even if the SBA ultimately denies the business's application for an EIDL.

Direct Loans for Eligible Businesses

The Act also provides $500 billion for loans, loan guarantees, and investments in the Federal Reserve's lending facilities to support "eligible businesses" particularly distressed by the ongoing pandemic, which include air carriers and U.S. businesses that have not received "adequate economic relief" in the form of other loans or loan guarantees under the Act. Note that loans under this program are not generally available to businesses that may have been adversely affected by COVID-19. Rather, particular industries that are most affected (e.g., airlines) would be eligible. The $500 billion is allocated as follows: $25 billion in loans and loan guarantees for air carriers; $4 billion in loans and loan guarantees for cargo air carriers; $17 billion in loans and loan guarantees for businesses critical to maintaining national security; and $454 billion for loans, loan guarantees, and investments in support of facilities established by the Federal Reserve.

Loan Eligibility

The business must:

• Be created or organized in the U.S.; and
• Have significant operations in and a majority of its employees based in the U.S.

Loan Details

• The loan must be entered into directly by the eligible business as the borrower and cannot be forgiven.
• The interest rate of the loan must be based on the risk and the current average yield on outstanding marketable obligations of the United States of comparable maturity.
• Any business receiving a direct loan is prohibited for 12 months after the term of the loan, from:
  1. For any officer or employee whose total compensation exceeded $425,000 in calendar year 2019, providing:
     1. Compensation to such individual over such amount over any consecutive 12 months during the covered period; or
     2. Severance benefits exceeding more than two times such 2019 compensation amount.
  2. For any officer or employee whose total compensation exceeded $3,000,000 in calendar year 2019, providing compensation that exceeds the sum of:
     1. $3,000,000, plus
     2. 50% of the amount in excess over $3,000,000 that the officer or employee received in calendar year 2019.
• Air Carriers and related contractors (e.g., persons that perform catering functions or other functions at an airport directly related to the air transportation of persons, property, or mail) are subject to the same executive compensation limits outlined above, except that the limits apply to the two-year period ending on March 24, 2022, rather than the 12 months following the term of the loan.
• Businesses that receive a loan may not conduct a stock buyback beyond the term of the loan, and must maintain at least 90% of its employment levels as of March 24, 2020, until September 30, 2020.

Mid-Size Direct Lending Program (Pending)

The Act also directs the Treasury Secretary to create a program to provide financing to banks and other lenders who make direct loans to mid-size businesses. Additional guidance on this program will be issued by the Treasury Secretary, including guidance that may permit receiving warrants, stock options, common or preferred stock or other equity under the program without triggering an ownership change under Section 382 of the Internal Revenue Code of 1986 (i.e., allowing more favorable treatment and flexibility regarding net operating loss carryforwards).

Loan Eligibility

The business:

• Have between 500 to 10,000 employees;
• Be created or organized in the U.S.; and
• Have significant operations in and a majority of its employees based in the U.S.

Loan Details

• Loans made under the to-be created program are capped at a 2% (annualized) interest rate. During the first 6 months after a direct loan is made, or for such period set by the Treasury Secretary, no principal or interest will be due and payable.
• Loans may be used for employee retention purposes, and funds must be used to retain at least 90 percent of the business's workforce, at full compensation and benefits, until September 30, 2020.

Loan Process

• To apply for a loan under this program, an eligible business must make a good faith certification that:
  1. The uncertainty of economic conditions makes the loan necessary to support the ongoing operations;
  2. The funds received will be used to retain at least 90 percent of the business's workforce, at full compensation and benefits, until September 30, 2020;
  3. The business intends to restore not less than 90 percent of the workforce of the business that existed as of February 1, 2020, and to restore all compensation and benefits to the workers of the business no later than 4 months after the termination of the public health emergency declared on January 31, 2020;
  4. The business is domiciled in the United States with significant operations and employees located in the United States;
  5. The business is not a debtor in a bankruptcy proceeding;
  6. The business is created or organized in the United States or under the laws of the United States;
  7. The business will not pay dividends with respect to the common stock of the eligible business, or repurchase an equity security that is listed on a national securities exchange of the business while the direct loan is outstanding, except to the extent required under a contractual obligation that is in effect as of the date of the Act's enaction;
  8. The business will not outsource or offshore jobs for the term of the loan and 2 years after completing repayment of the loan;
  9. The business will not do away with existing collective bargaining agreements for the term of the loan and 2 years after completing repayment of the loan; and
  10. The business will remain neutral in any union organizing effort for the term of the loan.

Main Street Lending Program

On April 9, 2020, the Federal Reserve announced preliminary details of the Main Street Lending Program, a lending program established pursuant to Section 4003(C)(3)(d)(ii) of the CARES Act, which permits the Federal Reserve to make programs aimed at providing financing to small and mid-sized businesses affected by the COVID-19 pandemic. This program offers potential relief for businesses too large to take advantage of the Paycheck Protection Program ("PPP") (which is an SBA-based lending program for small companies). More details about this program can be found at: CARES Act: The Main Street Lending Program Offers Relief for Small and Mid-Sized Businesses.

Tax Credits

Employee Retention Tax Credits

The Act creates a tax credit each quarter to offset 50% of each employee's qualifying wages, including qualifying health care plan costs, on up to $10,000 of wages paid per employee (i.e., up to $5,000 in actual credit per employee). This employee retention tax credit is available for wages incurred from March 12, 2020 – December 31, 2020, but is unavailable for paid sick leave or expanded FMLA wages paid under the Families First Coronavirus Response Act (FFCRA). Notably, this credit is in addition to the payroll tax created under the FFCRA.

Employer Eligibility

• The credit is available to employers, who do not receive a loan under the Paycheck Protection Program discussed above, whose (1) operations were shut-down or partially suspended due to a COVID-19 related shut down order, or (2) gross receipts fell more than 50% when compared to the same quarter in the previous year.
• For employers eligible for the credit due to a decline in gross receipts, eligibility ends with the calendar quarter in which the gross receipts exceed 80 percent of the calendar quarter in the previous year.
• Private employers of all sizes may apply for the credit; however, employers with more than 100 full-time employees, may only receive the tax credit for employee wages where the employee was not providing services due to one of the reasons listed above. Employers with 100 or fewer employees qualify for the credit, regardless of whether the business is shut down pursuant to a shut-down order.

Claiming Credit

• The tax credit only offsets employment taxes owed by an employer. To the extent 50% of the qualifying wages exceed the employer's employment tax liability, the employer will be refunded the difference. The Treasury Secretary is expected to issue further guidance, forms, and regulations for these tax credits, including provisions allowing businesses to receive advance payment of the credit.
• The CARES Act also facilitates reimbursement for employee wages paid pursuant to the Families First Coronavirus Response Act ("FFCRA").
• Employers can claim the credit each quarter they are eligible through December 31, 2020.

Delay of Payment of Employer Payroll Taxes

To provide further assistance to employers, the CARES Act authorizes deferral of 2020 payroll taxes to 2021 and 2022. Half of the deferred 2020 employment taxes must be paid by December 31, 2021. Any remaining amount owed for 2020 employment taxes is due to the IRS by December 31, 2022. Like the employee retention tax credits, this deferral is unavailable to employers who receive a small business "paycheck protection" loan. Note, there is also no provision in the Act that the IRS "trust fund recovery penalty" (which is equal to 100% of unpaid employment taxes) is being altered in any way. This penalty may be assessed against any person (including officers, employees, members, and directors) who is responsible for managing and paying employment taxes on behalf of the employer and who willfully fails to collect or pay such taxes. Accordingly, if a business is unable to pay the deferred taxes after the deferral period (e.g., due to insolvency and bankruptcy), key officers and employees may remain liable for payroll taxes.

Net Operating Losses

The Act also suspends certain deduction limits previously imposed by the Tax Cuts and Jobs Act (TCJA), including:

• Allowing Net Operating Losses (NOLs)—which occur when a businesses's allowable deductions exceed its taxable income within a tax period—arising in 2018, 2019, and 2020 to be carried back for up to five years (under the TCJA, no carrybacks were permitted);
• Suspending the TCJA's 80 percent cap on NOL carryovers for three years (cap would not apply to taxable years beginning in 2018, 2019, and 2020); and
• Suspending certain rules relevant to farming losses for NOLs arising in taxable years beginning in 2018, 2019, and 2020.

Additional Provisions

The Act includes a number of additional provisions for the benefit of unemployed workers, financial institutions, community banks, the health care industry (including medical device companies), and borrowers of federally backed mortgage loans. For more information about these and other provisions, reach out to Maslon's Corporate & Securities Group.

We Can Help

Please contact Maslon's Corporate & Securities Group and Labor & Employment Group if you have questions or need assistance taking advantage of the relief provided under the CARES Act.

The process related to Paycheck Protection Program ("PPP") loans under the CARES Act is moving quickly. Lenders may begin processing PPP loans as early as Friday, April 3, 2020, but it's unlikely all lenders will be ready to process and/or fund loans by this time. Although PPP loans will be available through June 30, 2020, eligible businesses should apply as soon as possible given concerns that the allocated funds may not cover demand. Funds will be given on a first come, first serve basis.

On April 2, the U.S. Small Business Administration ("SBA") published its Interim Final Rule, which provides guidance on the implementation of the PPP, including a helpful Q&A section. Comments on the Interim Final Rule will be accepted through the Federal eRulemaking Portal for 30 days after date of publication of the Interim Final Rule in the Federal Register. The SBA will provide further guidance through SBA notices and a program guide, which will be posted to the SBA’s website. While full details about the PPP are still forthcoming, current guidance provides the following information:

Proactive Steps to Apply

Eligible businesses can apply through existing SBA Section 7(a) loan program lenders or through any participating federally insured depository institution, federally insured credit union, and Farm Credit System institution. Additional lenders will be able to make PPP loans once approved and enrolled in the PPP. It is anticipated that lenders will provide their specific application process information once available, which may be as soon as Friday, April 3, 2020.

Register to Submit Application

If a business believes it may be eligible for a PPP loan, it should connect as soon as possible with a PPP lender to get registered. Applications for a PPP loan will be specific to each lender, and you should obtain the proper forms from your lender. While businesses cannot yet apply, businesses may be able to "get a spot in line" to submit applications by reaching out to lenders now.

Assemble Potentially Required Application Documentation

While PPP loan application processes will be specific to each lender, the SBA has issued a sample application form to assist businesses in preparing for the lender's application. Based on the sample application form provided and traditional SBA loan rules, we suggest you assemble the following documentation to get a head start, keeping in mind that actual document requirements may vary across lenders. If you have an existing relationship with an SBA-approved lender, consider reaching out to that lender first for a PPP loan, as the lender likely already has on file potentially required documentation, which may speed up the application process.

• Traditional SBA Loan Documentation Requirements:
  • Articles or Certificate of Incorporation/Organization for each borrower;
  • Bylaws/Operating/Member Control Agreement for each borrower; and
  • Driver's licenses for all owners.
• Payroll Expense Verification Documents:
  • IRS Form 941 Employers Quarterly Tax Return and Form 944 Employers Annual Tax Return (if filed);
  • Payroll summary report form provided with corresponding bank statements or employee paystubs as of February 15, 2020 (or corresponding period) with corresponding bank statements;
  • 1099s for independent contractors;
  • Statement that all employees are United States residents or detailed list of employees outside the United States with their salaries (whose wages must be excluded); and
  • Profit and loss statement for the prior 12 months.
• Most recent mortgage statement or rent invoice and lease.
• Documentation of the average monthly payroll based on the 12 months between April 2019 to March 2020, reduced for payroll individuals that exceed $100,000 on an annualized basis (i.e., average payroll, capped at $100,000 (annualized) per employee).
  • Average payroll should be separated by category: Salary, Hourly, Commissions, Vacation, Sick Leave, Group Health Care (both union / non-union), and Retirement Contributions (both union / non-union).
• Total monthly rent (or mortgage interest) over the prior 12 months.
• Total amount spent on utilities over the prior 12 months (Electricity, Gas, Water, Transportation, Telephone, and Internet, etc.).
• Total interest on other debt obligations incurred before February 15, 2020.
• Entity's tax EIN and full legal name (you can find this on your tax return).
• Personal financial statements may be requested for all owners.

Potential Disqualifiers

Based on questions borrowers must answer on the SBA sample application form, the following factors may disqualify certain businesses from PPP loans. As more information is made available, we will clarify this list:

• If the business or any of its owners are presently involved in any bankruptcy;
• If the business or any of its owners are presently suspended, debarred, proposed for debarment, declared ineligible, or are voluntarily excluded from participation in the PPP by a federal department or agency;
• If the business or any of its owners, or any business owned or controlled by any of them, have ever taken a loan from the SBA or any other federal agency that is currently delinquent or that has defaulted in the last seven years and caused a loss to the government;
• If any 20% or more owner of the business is currently subject to an indictment, criminal information, arraignment, or any other means by which formal criminal charges are brought in any jurisdiction;
• If any 20% or more owner of the business is currently incarcerated, on probation, or on parole; and
• If any 20% or more owner of the business has, within the last seven years, pleaded guilty to, pleaded nolo contendere, been placed on pretrial diversion, been placed on any form of parole or probation, or been convicted of any felony or misdemeanor against a minor.

We Can Help

Please contact Maslon's Corporate & Securities Group if you have questions or need assistance applying for a PPP loan.

• Previously, borrowers could only use the 8-week period after receiving the loan (the "Covered Period") to calculate forgiveness for the loan. Now, borrowers with a bi-weekly (or more frequent) payroll cycle (i.e., paying employees every other week or more frequently) may choose to calculate forgiveness only for amounts spent on payroll using the 8-week period beginning on the first day of the first payroll cycle. Forgiveness of loan amounts spent on non-payroll costs, however, can only be calculated using the initial "Covered Period" (8 weeks after receiving the loan).
• The Rule also clarified several points left open by the CARES Act and other guidance from the SBA:
  • Payroll costs incurred but not paid during the borrower's last payroll cycle are eligible for forgiveness if paid on or before the next regular payroll date (regardless of which 8 week period is used to calculate forgiveness).
    • Payroll costs are generally incurred on the day the employee's pay is earned (i.e., on the day the employee worked).
    • Payroll costs include hazard pay, bonuses, and compensation for furloughed employees, in addition to other compensation to employees (e.g., salary, wages, commissions, etc.).
  • Similarly, non-payroll costs incurred but not paid during the 8 weeks after receiving the loan are forgivable if paid on or before the next regular billing cycle, even if that date is after such 8-week period.
  • An FTE is defined as an employee who works 40 hours or more, on average, each week.
    • A single employee cannot count as more than 1.0 FTE (e.g., if the employee works an average of 45 hours per week they are still a 1.0 FTE).
    • A borrower has two choices for calculating how part-time employees count towards its average number of FTEs. The borrower may either:
      • Calculate the average number of hours for which the part-time employee was paid per week during the 8-week period being used to calculate forgiveness (so, for example, if an employee was paid for an average of 10 hours per week, that employee would be a 0.25 FTE (10 hours/week divided by 40)); or
      • Elect to use an FTE of 0.5 for each part-time employee.
  • For reductions in forgiveness based upon salary or wage reductions, the amount of forgiveness will only be reduced if not attributable to an FTE reduction. That is, if the borrower ends up paying an employee less because they had to cut the employee's hours, the company could still count the amounts paid to such employee for forgiveness (but forgiveness will be reduced because of the effect this has on the borrower's FTE levels). However, the forgivable amount will be reduced if the employee's compensation rate decreased but they still had to work the same amount of hours (e.g., reducing someone's hourly rate but still keeping their same hours).
  • The amount of loan forgiveness for owner-employees and self-employed individuals' payroll compensation is capped at the lesser of 8/52 of 2019 compensation (approximately 15.38% of 2019 compensation) or $15,385 per individual in total across all businesses (because the maximum compensation eligible for PPP loan use is up to $100,000 per-person, per-year). It is unclear at this time what is meant by "owner-employees," but it likely means S-Corp shareholders that are also employees of the company. General partners are also capped by the amount of their 2019 net earnings from self-employment (reduced by claimed section 179 expense deduction, unreimbursed partnership expenses, and depletion from oil and gas properties) multiplied by 0.9235.
• Forgiveness will not be reduced if an employee:
  • Is fired for cause;
  • Voluntarily resigns; or
  • Voluntarily requests a reduced schedule during the applicable 8-week covered period.
• The borrower may exclude any reduction in total FTE headcount attributable to a single employee if:
  • the borrower made a good faith, written offer to rehire the employee (or, if applicable, restore the reduced hours of the employee) during the covered 8 weeks;
  • the offer was made on the same terms (e.g., wages and hours) the employee had in the last pay period prior to the separation or hours reduction;
  • the offer was rejected by the employee;
  • the borrower has maintained records documenting the offer and its rejection; and
  • the borrower informed the applicable state unemployment insurance office of the employee's rejected offer or re-employment within 30 days of the employee's rejection.
• For the "Re-Hire Exemption" (outlined below), the Rule still did not definitively state whether a 100% of a company's workforce has to be rehired or whether 100% of wages have to be restored to pre-loan levels. However, the SBA's loan forgiveness application states the borrower is required to restore "its FTE employee levels by not later than June 30, 2020 to its FTE employee levels in the [b]orrower's pay period that included February 15, 2020." This likely means that (at least with respect to re-hiring), 100% of the workforce that was terminated/furloughed needs to be re-hired by June 30th (subject to the exception above regarding employees who reject the offer to return).
• Other than these clarifications, the majority of the rules for the loan forgiveness process remain the same. For instance, 75% of the loan proceeds must be used for payroll costs (for such amounts to be forgiven), eligible expenses remain the same, and there has been no change to the formula for calculating any reductions to loan forgiveness.

Pursuant to the CARES Act (the "Act"), up to 100% of a PPP loan may be forgiven if loan proceeds are used for specified eligible expenses during the Covered Period, or, as an alternative for payroll costs, the 8-week period beginning the first day of the first payroll cycle in the Covered Period (the "Alternative Payroll Covered Period"). Important considerations to maximize loan forgiveness are outlined in this legal alert.

This legal alert does not address additional considerations for borrowers who are independent contractors, sole proprietors, or self-employed individuals.

Loan Forgiveness Requirements under the PPP

• Loans under the PPP are eligible for forgiveness to the extent the proceeds are used to pay the eligible expenses incurred during the Covered Period, which are payroll costs, interest on secured debt, rent, and utilities. The amount of loan forgiveness is only for that portion of the loan used to pay such expenses, which can be up to the full loan amount (including principal and interest).
• The SBA requires that at least 75% of the loan proceeds used on eligible expenses be used for payroll costs for those loan proceeds to be eligible for forgiveness.
• For the purposes of federal income tax, amounts forgiven are not considered gross income of the borrower. However, borrowers should note that each state will determine whether forgiven amounts will be considered income for state income tax purposes.

Eligible Expenses

More specifically, expenses eligible for forgiveness are:

• Payroll costs
  • Proceeds used to pay compensation to employees:
    • Salary, wages, commissions, or similar compensation (including the employee's share of federal payroll taxes);
    • Payment of cash tip or equivalent;
    • Payment for vacation, parental, family, medical, or sick leave;
    • Allowance for dismissal or separation;
    • Payment required for the provision of group health care benefits, including insurance premiums;
    • Payment of any retirement benefits; and
    • Payment of state or local tax assessed on the compensation of employees.
  • Payroll costs do not include:
    • The sum of payments of any cash compensation of an individual employee, including severance payments, in excess of $100,000, as prorated for the period between February 15, 2020, through June 30, 2020 (put otherwise, employees who make more than $100,000 of cash compensation are capped at $100,000 for the purpose of calculating payroll costs);
    • The borrower's share of federal payroll taxes;
    • Qualified sick leave or family leave wages for which credit is allowed under the Families First Coronavirus Response Act (which provides for, among other things, 14-day paid leave for American workers affected by the pandemic); or
    • Payments made to independent contractors.
• Mortgage Interest (Real Estate & Other Secured Credit)
  • Proceeds used to pay interest on a mortgage loan are eligible for forgiveness if the mortgage:
    • Was first incurred prior to February 15, 2020.
    • Is on real or personal property (i.e., the statute seems to cover interest on secured credit lines, etc., even if they are secured by something other than real estate, provided the other requirements are met); and
    • Is the borrower's liability;
    • However, to be forgivable, loan proceeds may not be used to prepay or make principal payments on the mortgage obligation.
• Rent
  • Proceeds used to pay for rent owed under a lease agreement in force prior to February 15, 2020, are eligible for forgiveness.
• Utilities
  • Proceeds used to pay for electricity, gas, water, transportation, telephone, or internet access ("Covered Utility Payments") are eligible for forgiveness, so long as service began prior to February 15, 2020.

Reduction of Amounts Forgivable

• The amount eligible for forgiveness will be reduced if the borrower, during the Covered Period:
  • Reduces the number of full-time equivalent employees ("FTEs"); or
  • Reduces an employee's salary or wages by more than 25% compared to what the employee earned during the most recent full quarter during which the employee was employed before the Covered Period. Note that this applies to any employee who did not receive wages or salary of more than $100,000 annualized during any single pay period during 2019.
• For non-seasonal borrowers, the reduction in the amount that can be forgiven due to a reduction of FTEs is calculated as:
  • Amounts used for eligible expenses, multiplied by:
    • The average number of FTEs per month employed by the borrower during the Covered Period, divided by, at the borrower's election, either:
      • The average number of FTEs employed per month during the period between February 15, 2019, through June 30, 2019; or
      • The average number of FTEs employed per month during the period between January 1, 2020, through February 29, 2020.
• For the purposes of forgiveness, the average number of FTEs is determined by calculating the average number of FTEs employed during each pay period falling within a month. Put otherwise, borrowers should find the average FTEs per pay period in a given month, do that for each month, and then find the average of the monthly numbers.

Re-Hire Exemption

• If the borrower reduced the number of FTEs or salaries and wages paid to any employees during the period between February 15, 2020, and April 26, 2020, thereby reducing the loan proceeds eligible for forgiveness, such proceeds become re-eligible for forgiveness if:
  • The borrower eliminates the reduction in the number of FTEs by June 30, 2020; or
  • The borrower eliminates the reduction in salary or wages of employees by June 30, 2020.
• A plain reading of the Act indicates a 100% elimination of the reduction of FTEs or employee salary or wages is required to make loan proceeds re-eligible for forgiveness. However, the Act gives the SBA discretion to issue regulations granting minor exceptions to this 100% elimination requirement, and we are hopeful the SBA will do so. Maslon will update this legal alert as additional guidance becomes available on this key issue.

Application for Forgiveness

• To seek loan forgiveness, borrowers will "apply" to the lender originating the loan, by submitting the SBA's loan forgiveness application (SBA Form 3508 or a lender equivalent). Documents that all lenders will require from borrowers include:
  • Payroll tax filings reported to the Internal Revenue Service (for the 8-week covered period);
  • State income, payroll, and unemployment insurance filings (for the prior-year baseline period);
  • Evidence of the payment of eligible expenses, including cancelled checks, payment receipts, transcripts of accounts, or other documents verifying payments on eligible mortgage interest payments, rent obligations, and utility payments;
  • Certifications that: (i) the documentation provided is true and correct; and (ii) the amount for which forgiveness is being requested was used to retain employees, make interest payments on eligible mortgage interest, rent, or utilities; and
  • Any other documentation the SBA deems necessary.
• The lender is required to issue a decision within 60 days after receiving an application for forgiveness.

What If A Loan Isn't Forgiven?

Loan portions that are not forgiven have a term of 2 years and an interest rate of 1%. There is no pre-payment penalty.

Proactive Steps To Take

Borrowers can take the following steps to maximize their chances of loan forgiveness:

• Properly document fund use and allocation. This includes keeping track of cancelled checks, payment receipts, and transcripts of accounts.
• Consider separating PPP loan proceeds from other funds (i.e., in a different bank account) and putting other accounting controls in place (such as keeping a separate ledger for loan proceeds). Many SBA lenders are requiring borrowers to take similar actions.
• If there has been any reduction in FTEs or employee salaries or wages, begin strategizing now to try and ensure a full elimination of the reduction by June 30, 2020 (if feasible, understanding that your business circumstance may not allow for this).
• Work with your accountant to calculate your total eligible expenses in the Covered Period or Alternative Covered Period. After the proceeds hit your bank account, spend as much as you can on eligible expenses, but not more than 25% of your anticipated forgivable amount on non-payroll expenses.

We Can Help

Please contact Maslon's Corporate & Securities Group if you have questions or need assistance taking advantage of loan forgiveness afforded by the Paycheck Protection Program.