COVID-Related U.S. Government Financial Supports for U.S. Affiliates of Irish Businesses

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On March 27, 2020, President Trump signed into law the Coronavirus, Aid, Relief and Economic Security Act (the “CARES Act”). The nearly $2 trillion relief package is the boldest action to date in response to the COVID-19 pandemic and is the single largest relief bill in U.S. history. The CARES Act includes (a) direct financial assistance to Americans; (b) aid to small businesses and employees; (c) efforts to stabilize the economy and keep people employed; and (d) additional support for health care professionals, patients, and hospitals. More specifically, the CARES Act provides $349 billion in small business loans and $500 billion in loans for distressed companies, which may be available to U.S. affiliates of Irish companies.

This memorandum will focus on the $349 billion allocated for Paycheck Protection Program loans (“PPP Loans”), administered by U.S. Small Business Administration (“SBA”). Private SBA-approved financial institutions (and not the SBA itself) will administer PPP Loans, so it is crucial for U.S. affiliates of Irish companies to reach out as soon as possible to their U.S. banker or an SBA-approved lender (we can provide a list of such lenders upon request).

Are U.S. affiliates of Irish companies eligible for a PPP Loan?

The CARES Act seems to allow U.S. affiliates of Irish companies to apply for a PPP Loan, and we are waiting in final SBA regulations to confirm this fact. The statute states that an eligible borrower (a) be “created or organized in the United States or under the laws of the United States;” (b) “have significant operations . . . in the United States;” or (c) have “a majority of its employees based in the United States.” Whereas the requirement in clause (a) may be determined objectively (and may apply to most U.S. affiliates of Irish parents), the requirements in clauses (b) and (c) have ambiguity for interpretation. Our guidance right now, pending issuance of relevant regulations, is that U.S. affiliates of Irish companies should prepare to obtain a PPP Loan; given the perceived demand for these loans, there is risk that the funding could run out before finalization of each detail of the program.

Are there other eligibility requirements?

U.S. affiliates of Irish parent companies must have been in operation on February 15, 2020 and have 500 or fewer employees to be eligible for a PPP Loan. The 500-employee limit is subject to certain exceptions based on industry: (a) businesses with a North American Industrial

Classification System code begins with “72” (accommodations and/or food services/restaurants; (b) for any business concern acting as a franchise; and (c) for any business concern that receives financial assistance from a company licensed under §301 of the Small Business Investment Act of 1958.

Existing SBA regulations contain rules that provide for the aggregation of the number of employees, for purpose of determining the 500-employee limit, where businesses are affiliates (under common control, controlling or controlled by) of one another. Our understanding of how the CARES Act intends for these rules to be applied (pending final regulations) is that employees outside the U.S. will not be counted for purposes of the 500-employee limit.

How much can be borrowed?

The maximum PPP loan size is the lesser of (a) $10 million; or (b) 250% of the average monthly “payroll costs” (discussed below), measured over the 12 month period ending on December 31, 2019 (although the CARES Act specifies a different time period, the PPP Loan application states that the relevant payroll measurement period is calendar year 2019). If the U.S. affiliate could be classified as a seasonal business, it may use the period February 15, 2019 – June 30, 2019 or March 1, 2019 – June 30, 2019 to calculate the average payroll.

For PPP Loan purposes, “payroll costs” include salaries, commissions, tips, certain employee benefits (including health insurance and retirement benefits), state and local taxes and certain types of compensation to sole proprietors or independent contractors. Payroll costs specifically exclude compensation of an individual employee in excess of an annual salary of $100,000 (but only to the amount of such overage), employees outside the U.S., FICA and income tax withholdings.

What are PPP Loan terms?

The U.S. Treasury Department has stated the PPP Loan terms will be the same for every borrower. More specifically:

  • Loan payments deferred for six (6) months;
  • Initial 0.5% interest rate (capped at 4%);
  • Loan is due two (2) years from inception;
  • No prepayment penalties or fees;
  • No collateral required; and
  • No personal guarantee required.

What can a PPP Loan be used for?

PPP Loans may only be used for (a) payroll costs (as discussed above); (b) group healthcare benefits, insurance premiums; (c) interest (but not principal) on mortgages or other debt incurred prior to February 15, 2020; (d) rent on any lease in force prior to February 15, 2020; and (e) utility payments (electricity, gas, water, transportation, telephone or internet access which began prior to February 15, 2020). U.S. affiliates of Irish parent companies may not use PPP Loan proceeds to pay dividends to a parent entity, make other capital distributions or make loans to non-US entities.

Are PPP Loans forgivable?

 PPP Loans can be forgiven, in whole or part, in a number of circumstances; the expectation is that a majority of PPP Loans will be forgiven. As a threshold matter, the amount of a PPP Loan that may be forgiven is equal to the amount spent by the borrower during an 8-week period after the origination date of the loan on (a) payroll costs (as discussed above); (b) interest payment on any mortgage incurred prior to February 15, 2020; (c) payment of rent on any lease in force prior to February 15, 2020; and (d) payment on any utility for which service began before February 15, 2020. The amount forgiven may not exceed the principal of the PPP Loan.

However, the amount forgiven will be reduced based on failure to maintain the average number of full-time equivalent employees versus the period from either February 15, 2019, through June 30, 2019, or January 1, 2020, through February 29, 2020, as selected by the borrower. The amount forgiven will also reduced to the extent that compensation for any individual making less than $100,000 per year is reduced by more than 25% measured against the most recent full quarter. Reductions in the number of employees or compensation occurring between February 15, 2020, and 30 days after enactment of the CARES Act will generally be ignored to the extent that reductions are reversed by June 30, 2020. It is anticipated that not more than 25% of the forgiven amount may be for non-payroll costs.

Forgiven amounts will not constitute cancellation of indebtedness income for U.S. federal tax purposes.

What will potential borrowers have to provide as part of the PPP Loan process?

As part of the loan origination process, potential borrowers will have to affirm that (a) current economic uncertainty makes the loan necessary to support its ongoing operations; (b) the funds will be used to retain workers and maintain payroll or to make mortgage, lease, and utility payments; and (c) it has not and will not receive another loan under the PPP Loan program or other CARES-related program.

Applicants will have to provide to the lender documentation that verifies the number of full-time equivalent employees on payroll and the dollar amounts of payroll costs, covered mortgage interest payments, covered rent payments, and covered utilities for the eight weeks after getting this loan.

Are there other issues around PPP Loans?

 Potential borrowers should carefully review existing loan terms and other existing financing arrangements to ensure that obtaining a PPP Loan does not breach the terms of such arrangements.

Companies that obtain a PPP Loan may not be able to use some of the tax benefits in the CARES Act, such as a payroll tax deferral.

Potential borrowers should speak to their U.S. banker as soon as possible because we’re hearing from banks that, given the expected demand for these loans, they are prioritizing their existing customers.

 What’s next?

 The CARES Act allocates $500 billion to the U.S. Treasury Department for loans and other financial supports for distressed companies who may not be eligible for a PPP Loan. We are waiting on specific guidance and regulations from the U.S. Treasury Department as to the process and procedures that will be used in connection with deployment of this $500 billion allocation. We will provide an update once such guidance is published.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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