Recent actions and pronouncements by the Small Business Administration (SBA) and Federal government officials have raised concerns regarding Paycheck Protection Program (PPP) loans and future government oversight and enforcement activity. In its Frequently Asked Questions No. 31, the SBA reminded PPP borrowers that they are required to certify that current economic uncertainty causes their PPP loan request to be necessary to support their ongoing operations. PPP loan applicants are required to make this certification 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 their business.
FAQ No. 31 provided that any PPP loan recipient which repaid its PPP loan by May 7, 2020 would be deemed to have provided this certification in good faith, thus providing a Safe Harbor for loan recipients who had decided that they may not be eligible for a PPP loan and who wanted to repay the funds. In its new FAQ No. 43, the SBA extended this Safe Harbor PPP loan repayment date to May 14, 2020. The SBA also said that it will provide additional guidance on this certification.
Current and prospective PPP loan borrowers should carefully review and analyze their eligibility for a PPP loan based on the recent posture of the SBA and other government officials and make appropriate decisions regarding keeping or returning such loan funds. As mentioned in FAQ No. 39, the SBA will review all PPP loans over $2 million and will review other smaller loans “as appropriate”. All PPP loan recipients should carefully and completely document their need for such funds now in anticipation of having to justify the need for such funds in the future. We are happy to work with you in connection with the preparation of any such documentation. View the SBA’s PPP FAQs (as of May 6, 2020) here.
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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.
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