Does PPP need to be the last straw?

The rules for the Paycheck Protection Program (PPP) change daily, sometimes hourly. On April 23, 2020 the SBA issued a question whether an applicant can certify in good faith that the business needed the SBA loan as liquidity. Our suggestion is to avoid potential criminal charges to analyze the needs of the company and also the guidance by the SBA and to return the funds prior to May 7, 2020 if there were other adequate sources of liquidity available.

More specific was the following question answered: Do businesses owned by large companies with adequate sources of liquidity to support the business’s ongoing operations qualify for a PPP loan?

In addition to re viewing applicable affiliation rules to determine eligibility, all borrowers must assess their economic need for a PPP loan under the standard established by the CARES Act and the PPP regulations at the time of the loan application. Although the CARES Act suspends the ordinary requirement that borrowers must be unable to obtain credit elsewhere (as defined in section 3(h) of the Small Business Act), borrowers still must certify in good faith that their PPP loan request is necessary. Specifically, before s ubmitting a PPP application, all borrowers should review carefully the required certification that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.” Borrowers must make this certificatio n in good faith, taking 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. For example, it i s 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 SBA, upon request, the basis for its certifi cation.

Any borrower that applied for a PPP loan prior to the issuance of this guidance and repays the loan in full by May 7 , 2020 will be deemed by SBA to have made the required certification in good faith.