SBA and PPP Loan Eligibility Update Regarding VCs, PE firms, ESOPs and Companies in Chapter 11
April 28, 2020
Since the passage of the CARES Act and the creation of the Paycheck Protection Program (PPP), the SBA has published three separate Interim Final Rules to provide further guidance and regulation. On April 24, 2020, the SBA provided an additional Supplement to these previously published Interim Final Rules, specifically impacting Sections 1102 and 1106 of the CARES Act as related to the PPP Loans.
In this supplement, the SBA clarifies that Hedge Funds and Private Equity Funds are investment entities and thus are not eligible for section 7(a) SBA loans nor PPP loans. The supplement also goes on to clarify guidance on eligibility for companies that are owned by Employee Stock Ownership Plans (ESOPs), as well as companies that have started Chapter 11 bankruptcy proceedings.
Venture Capital and Private Equity Portfolio Companies:
With respect to portfolio companies of investment funds, this supplement confirms what Aprio has already been advising clients: that borrowers must use the affiliation rules published in the Second PPP Interim Final Rules, April 3, 2020. These rules state that portfolio companies of investment funds must apply the same affiliation rules as any other company.
While this supplement does not explicitly list Venture Capital Funds, it is probable that this latest guidance is meant to target all types of investment funds, regardless of how the industry characterizes such fund. Operating under this assumption, Venture Capital Funds are also excluded from eligibility for section 7(a) SBA loans as well as PPP loans.
As footnoted in the supplement, “the CARES Act waives the affiliation rules if the borrower receives financial assistance from an SBA licensed Small Business Investment Company (SBIC) in any amount. This includes any type of financing listed in 13 CFR 107.50, such as loans, debt with equity features, equity, and guarantees. Affiliation is waived even if the borrower has investment from other non-SBIC investors.”
However, the SBA reminds borrowers that they must certify that “current economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.”
Employee Stock Ownership Plans (ESOP)
Over the last few years, many companies have migrated to be owned by ESOP’s, which are qualified retirement plans; these plans generally own up to 100% of operating companies.
This latest supplement clarifies that a company owned by an ESOP can apply for the PPP loan and that the ESOP structure does not prohibit it from applying. The ESOP-owned business would still need to meet the other PPP requirements.
The SBA also confirms in this supplement that if your company is a debtor in a bankruptcy proceeding, you cannot apply or receive a PPP loan.
The bottom line
Through the additional interim rules and supplement, the SBA is reminding all applicants that the company must certify that “current economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.” For companies concerned about their ability to certify this, there is a safe harbor in place: if the loan is re-paid in full by May 7, 2020, the borrower would be considered to have made the certification in good faith.
If you would like to discuss how to interpret these new requirements and maximize PPP loan forgiveness, contact Aprio’s dedicated PPP loan forgiveness team for a consultation.
Disclaimer for services provided relative to SBA programs and the CARES Act
Aprio’s goal is to provide the most up to date information, along with our insights and current understanding of these programs and regulations to help you navigate your business response to COVID-19.
The rules regarding SBA programs are constantly being refined and clarified by the SBA and other agencies In certain instances, the guidance being provided by the agencies and/or the financial institutions is in direct conflict with other competing guidance, regulations and/or existing laws.
Due to the evolving nature of the situation and the lack of final published rules, Aprio cannot guarantee that additional changes or updates won’t be needed or forthcoming and the original advice given by Aprio may be affected by the evolving nature of the situation.
You need to evaluate and draw your own conclusions and determine your Company’s best approach relative to participation within these programs based on your Company’s specific circumstances, cash flow forecast and business strategy.
In situations where resources are provided by third parties, those services should be covered under a separate agreement directly with that service provider. Aprio is not responsible for the actions of any other third party.
Aprio encourages you to contact your legal counsel to address the legal implications of the impact of the CARES Act and specifically your participation in any of the SBA programs.
About the Author
Mitchell is the partner-in-charge of Aprio’s Tax practice as well as the Technology & Biosciences group. He has been a partner since 1990 with Aprio, which is the largest Georgia-based tax, accounting and consulting firm. Mitchell works with companies in the software, gaming, clean tech, financial technology (FinTech), health care IT, processing, biosciences (biotech and medical device) and manufacturing industries. Whether a company is pre-revenue, starting up, growing or preparing for a liquidity event, Mitchell works with them to maximize their potential at each stage. He is known for promoting research, innovation and entrepreneurship by enabling companies to be successful, regardless of where they are in their business lifecycle.