Are you a small business owner who has been affected financially by COVID-19?
Click on the links below to learn about your available resources. We also recommend reaching out to your lender to learn about the best financial options for you and your business.
New Protest Deadlines
Listen to our most recent podcast with Rahul B. Patel and Kathlyn Hufstetler regarding property tax deadlines.
The Patel Gaines team is actively monitoring the statewide protest deadline. The best way to ensure, that you are operating on the most current and up-to-date information, is to visit the link(s) below to your corresponding county.
What are force majeure clauses and how do they work?
A force majeure clause is a contract provision that generally states that the occurrence of certain unforeseen events or of circumstances beyond a party’s control may excuse or suspend a party from performing its obligations, either in whole or in part. The provision typically describes what events or categories of events trigger the application of the force majeure clause. A force majeure clause may specify a procedure that must be followed to invoke the clause’s protection such as (1) providing notice of its occurrence; (2) advising the other party of the anticipated effect such force majeure event will have on performance and the likely duration of this effect; and (3) taking steps to diminish the impact, or shorten the duration, of the alleged force majeure event.
Does a pandemic such as COVID-19 qualify as a force majeure event?
There is no way to answer this question in the abstract because reference must be made to the actual language of the force majeure clause at issue, but it certainly could. Therefore, the first step in determining whether or not the COVID-19 pandemic qualifies as a force majeure event is to examine your specific force majeure clause. In the best-case scenario, the force majeure clause will expressly identify a “pandemic” or a “public health emergency/crisis” as a force majeure event. If not, then you will need to resort to other language of your force majeure clause such as “other events outside the parties’ control” and possibly even an “Act of God”.
Even if the COVID-19 pandemic – standing alone – is not a qualifying event under a force majeure clause, the clause may nevertheless be available on account of the ripple effects flowing from the pandemic. For example, a governmental order issued in response to the pandemic might make it unlawful for a party to perform under the contract (e.g., a “stay-at-home” order). Or, the pandemic might cause a shortage of materials necessary to perform under the contract because the suppliers are unable to keep up with demand due to staff shortages resulting from the pandemic. The bottom line? If you have any questions, please contact a member of our legal team to determine the legal consequence of the language in your particular force majeure clause or contract as a whole.
What are some things you can do if the COVID-19 pandemic is causing you difficulty in performing under a contract, or if a counterparty fails to perform under a contract with you alleging the COVID-19 pandemic as the reason?
- Contact an attorney for legal advice. Our team at Patel Gaines PLLC stands ready to assist you with all of your legal and business consulting needs.
- Check the language of your agreement to see if “pandemic,” “illness,” or “public health hazard” (or something similar) are expressly identified as force majeure events, or if the ripple effects of the pandemic trigger other force majeure events.
- Check the language of your agreement to see what procedure must be followed to invoke the protection of the force majeure clause. If you are invoking the clause, then timely and perfectly comply with the specified procedure.
- Assemble documentation evidencing the reason for your inability to perform under the contract, or request the counter-party produce documentation supporting its claim of inability to perform.
This content is provided for informational purposes only and is in no way intended to constitute legal advice or create an attorney-client relationship.
CMBS Loan Relief Checklist
Are you struggling with a CMBS loan? Looking to see if you can work with your CMBS servicer / lender on relief? Our team at Patel Gaines understands the current effect of COVID-19 and what it could be having on your business. We are more than happy to help!
Below is a list of documents you will want to get together immediately to better serve us during this process (once engaged):
☐ Current Borrower Balance Sheet dated within the last 30 days.
☐ Current Rent Roll / Occupancy /Reports for the property(ies), if applicable.
☐ Most recent Trailing 12-month operating statement.
☐ Proforma Budget/Operating Statement on a monthly basis for the next 12 months. Please outline the logic used to arrive at this projection. Include any comment about any Franchisor relief that has been communicated to the Borrower.
☐ YE 2019 and Last Two Monthly STR Reports for Hospitality Properties. Weekly STR. ☐ Report, if available, for the current month. (hospitality properties only).
☐ Any outstanding PIP (hospitality properties) or capital projects (all properties) planned or currently underway.
☐ Recent Brand Quality Assurance Scores (hospitality properties only).
☐ Detailed listing of aged (30,60,90 days) accounts receivables by tenant(s) and aged account payables by vendor(s).
☐ Detailed information as to current and future hotel reservations that have been canceled (if available).
☐ Current personal financial statement on all loan guarantors.