Safe Harbor for PPP Loans Under $2 Million

Thursday, May 14, 2020

The SBA updated its PPP loan FAQs to add FAQ 46, making good on its promise to provide additional guidance as to what circumstances necessitate repayment. FAQ 46 announces that borrowers and their affiliates receiving PPP loans below that $2 million will be assumed to have performed the required certification concerning the necessity of their loan requests in good faith (i.e., safe harbor).

The SBA said the safe harbor will promote economic certainty for PPP borrowers with limited resources as they work to retain and rehire employees.

THE KEY HIGHLIGHTS

  1. The uncertainty certification will be deemed to be made in good faith for PPP loans of less than $2 million.

  2. No additional guidance for borrowers of PPP loans in amounts greater than $2 million to help determine whether they made the certification in good faith.

  3. The SBA will not take enforcement actions, including referring the matter to a different federal agency, when (1) the PPP loan amount exceeds $2 million, (2) the SBA determines that the borrower lacked an adequate basis for making the uncertainty certification, and (3) the borrower repays the loan.

Here’s the exact language of FAQ 46

46 Question: How will SBA review borrowers’ required good-faith certification concerning the necessity of their loan request?

Answer: When submitting a PPP application, all borrowers must certify in good faith that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.” SBA, in consultation with the Department of the Treasury, has determined that the following safe harbor will apply to SBA’s review of PPP loans with respect to this issue: Any borrower that, together with its affiliates,20 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. SBA has determined that this safe harbor is appropriate because borrowers with loans below this threshold are generally less likely to have had access to adequate sources of liquidity in the current economic environment than borrowers that obtained larger loans. This safe harbor will also promote economic certainty as PPP borrowers with more limited resources endeavor to retain and rehire employees. In addition, given the large volume of PPP loans, this approach will enable SBA to conserve its finite audit resources and focus its reviews on larger loans, where the compliance effort may yield higher returns. 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. 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 the necessity of the loan request. SBA’s determination concerning the certification regarding the necessity of the loan request will not affect SBA’s loan guarantee.

 


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