Should a Business Take the Paycheck Protection Program Money? Key Factors for Companies to Consider When Certifying Their PPP Need


CLE credits earned: 1 GENERAL (or 1 LAW & LEGAL for WA state)

Congress designed the Paycheck Protection Program to use traditionally defined small businesses and certain other employers as conduits to move dollars from the federal treasury into the hands of American workers as quickly as possible to help offset the loss of income for many workers affected by business shutdowns during the COVID-19 pandemic and to help some small businesses with fundamental expenses needed to “keep the lights on” during this time. The law was hastily conceived and its immediately effective implementing rules were constructed piecemeal without the benefit of traditional notice and comment rulemaking. The statute signaled that a number of companies who would not typically qualify for a SBA Section 7(a) loan could qualify for a PPP loan regardless of their ability to access to other forms of capital and for some others, if they used NAICS code 72, without taking into account some of the traditional affiliation rules. Unfortunately, the demand far exceeded the $349 Billion of appropriated funding. Many foresaw this demand, which lead to a race to the bank. Companies with access to lawyers and accountants quickly assembled loan applications. When some small businesses left out complained, the media learned that some successful applicants were not customarily regarded as small businesses, and some public companies, facing intense media scrutiny, decided to announce publicly that they would return approved PPP funds. Treasury also responded by first issuing FAQ 31 and later issuing FAQ 37 which cautioned many to rethink certifications made when applying for PPP loans and cautioned prospective borrowers to rethink whether they want to apply for such funds during the second $310 Billion allocation of funding. The key certification that Treasury has highlighted as it responded to the initial backlash is the PPP requirement that borrowers must be able to certify in good faith that the PPP loan is necessary to support ongoing operations taking into account current business activity and their ability to access other sources of liquidity. At the same time, recognizing confusion that has arisen in the market, Treasury dangled a carrot for business owners who wanted to re-evaluate the nature of their certification: any borrower returning funds by May 7, 2020 may do so—no questions asked. While this action offered some comfort, it created further anxiety as well, among both approved PPP borrowers and possible applicants for the next round.

This webinar will help attorneys understand the changing legal landscape underlying the PPP and analyze varying factual situations relating to the necessity test to best help clients answer the questions whether they should return PPP loan proceeds and whether they should proceed with submitting PPP loan applications.

This course is co-sponsored with myLawCLE.

Key topics to be discussed:

•  The authority underlying the PPP including the CARES Act, implementing regulations, the FAQs and the SBA Section 7(a) program and its SOP manual.
• The certifications required by PPP applicants.
• Treasury and SBA’s enforcement tools; and
• An analysis of how borrowers can make good faith certifications about current necessity and how to document and support those conclusions.

Date / Time: May 11, 2020

•   2:00 pm – 3:00 pm Eastern
•   1:00 pm – 2:00 pm Central
•   12:00 pm – 1:00 pm Mountain
•   11:00 am – 12:00 pm Pacific

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•   Live Video Broadcast/Re-Broadcast: Watch Program “live” in real-time, must sign-in and watch program on date and time set above. May ask questions during presentation via chat box. Qualifies for “live” CLE credit.
•   On-Demand Video: Access CLE 24/7 via on-demand library and watch program anytime. Qualifies for self-study CLE credit. On-demand versions are made available 24 hours after the original recording date and are view-able for up to one year.

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Original Broadcast Date: May 4, 2020

David Cole is a partner with Holland & Knight’s corporate and securities groups. He assists public and private companies to complete domestic and overseas merger, acquisition and divestiture transactions; raise equity and debt capital in public and private securities offerings; and obtain financing through private equity and venture capital investments. Mr. Cole also assists funds to acquire and divest portfolio companies, and he represents borrowers and lenders in connection with senior credit facilities and other debt financing. Mr. Cole has closed more than $2 billion worth of debt capital and other securities offerings. Mr. Cole has helped companies acquire and sell businesses in the government contractor, information technology, electronics, SaaS, automotive, clean-tech, renewable energy, chemical, retail and media industries; conducted public offerings for financial services, technology, and energy companies, government contractors, real estate investment trusts (REITs), natural resource extractors and manufacturers; and represented lead arrangers of syndicated credit facilities and borrowers in the same industries. Mr. Cole also leads the firm’s Korea practice. He previously acted as in-house counsel for the NHL’s Buffalo Sabres.

David Surbeck is a Philadelphia and New York financial services attorney who represents lenders (including regional, national and international banks, debt funds and other lending institutions) and corporate borrowers, in various banking and commercial finance transactions, correspondent banking, municipal finance, structured and securitized finance, and restructuring and workouts. Mr. Surbeck advises clients in syndicated, club and single lender transactions, including various secured and unsecured, and specialty collateral structures. In addition, he handles various senior, split-lien and junior financing structures, including cash flow and asset-based financing, sponsor and acquisition financing, Employee Stock Ownership Plans (ESOP) financing and fund finance. His work includes a wealth of experience representing lenders and borrowers in a variety of industries, including mortgage servicing, healthcare, government contracting, heavy equipment, construction and mining, energy, publishing, law firm lending and security services.

Tim Ryan is a highly experienced financial services attorney who has an extensive background in representing clients in the structuring, negotiation, documentation, and closing of a broad variety of lending and financing transactions. He represents lenders and arrangers in international and domestic syndicated, club and single-lender transactions. Mr. Ryan’s practice extends to acquisition financings, recapitalizations, high-grade and junior debt financings, cash flow, and asset-based and other capital market transactions. In addition, he also regularly represents clients in workouts and restructurings of troubled credits.

Daniel Sylvester is an associate in Holland & Knight’s Chicago office and a member of the firm’s Financial Services Team. Mr. Sylvester’s practice focuses on the representation of borrowers and lenders in senior secured credit facilities, second-lien credit facilities, real estate finance and syndicated credit facilities. Mr. Sylvester has represented lenders, agents and borrowers in nearly 100 club or syndicated facilities across a myriad of industries. Mr. Sylvester is a member of Holland & Knight’s Diversity Counsel and serves as Business Partnership Chair of the firm’s Veterans Group. In 2016, he was appointed by the president of the American Bar Association (ABA) to serve a three-year term on the ABA’s Standing Committee on Legal Assistance for Military Personnel and also serves on the association’s Veterans Legal Service Initiative. Prior to joining Holland & Knight, Mr. Sylvester spent 10 years in the executive search industry, where he focused his search efforts for companies at senior level management (directors to C-level) in the functional areas of operations, manufacturing, supply chain, finance and human resources. Mr. Sylvester began his career by serving more than 10 years as an army officer. A highly decorated veteran, he was stationed in Germany, Italy and Croatia. Mr. Sylvester also served on the U.S. humanitarian operations into Bosnia and the Dayton Peace Accord’s multinational NATO logistics command for the former Yugoslavia.

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