As a reminder, it is the borrower’s sole responsibility to determine and certify their eligibility to receive a loan under PPP. In addition to reviewing the 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.
On April 23, 2020, the U.S. Government issued regulatory guidance making clear that a PPP Loan applicant must review carefully the applicant’s required certification that “current economic uncertainty make this loan request necessary to support the ongoing operations of the Applicant.” This guidance:
- Directs each applicant to take into account its current business activity and its ability to access other sources of liquidity sufficient to support its ongoing operations in a manner that is not significantly detrimental to the business.
- Notes, by way of example, that it is unlikely that a public company with substantial market value and access to capital markets would 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.
Additionally, to further ensure PPP Loans are limited to eligible borrowers in need, the SBA has decided—in consultation with the Department of the Treasury—that it will review all loans in excess of $2 million, in addition to other loans as appropriate (see SBA’s Frequently Asked Question 39, which was issued on April 29, 2020). The SBA will perform this review following the lender’s submission of the borrower’s loan forgiveness application.
In reviewing borrowers’ required good-faith certification concerning the necessity of their PPP Loan request, the SBA—in consultation with the Department of the Treasury—has determined that the following safe harbor will apply: Any borrower that, together with its affiliates, received PPP Loans with an original principal amount of less than $2 million will be deemed to have made the required certification concerning the necessity of the loan request in good faith (see SBA’s Frequently Asked Question 46, which was issued on May 13, 2020). Importantly, borrowers with loans greater than $2 million that do not satisfy this safe harbor may still have an adequate basis for making the required good-faith certification, based on their individual circumstances in light of the language of the certification and SBA guidance. As noted above, the SBA has previously stated that all PPP Loans in excess of $2 million, and other PPP Loans as appropriate, will be subject to review by SBA for compliance with program requirements set forth in the PPP Interim Final Rules and in the Borrower Application Form. If SBA determines in the course of its review that a borrower lacked an adequate basis for the required certification concerning the necessity of the loan request, SBA will seek repayment of the outstanding PPP Loan balance and will inform the lender that the borrower is not eligible for loan forgiveness. If the borrower repays the loan after receiving notification from SBA, SBA will not pursue administrative enforcement or referrals to other agencies based on its determination with respect to the certification concerning necessity of the loan request.
