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PPP Update: Loan Necessity Questionnaires

Client Alert

On October 26, 2020, the Small Business Administration (“SBA”) published a notice in the Federal Register which foreshadowed the release of two new forms seeking information from for-profit and nonprofit organizations that received Paycheck Protection Program (“PPP”) loans of $2 million or more. If approved, the SBA would use information from these forms to evaluate and determine whether economic uncertainty made a PPP loan request necessary.

Originally, as part of the PPP application process, borrowers were required to certify that current economic uncertainty made its loan request necessary to support ongoing operations – a necessity certification. Then, with the release of FAQ 31, the SBA informed borrowers that a company – private or public – with substantial market value and access to capital markets will unlikely be able to make the required necessity certification in good faith. Accordingly, FAQ 31 provided that such company should be prepared to demonstrate, upon request, the basis for its certification. In response to this guidance, BMD urged its clients to begin documenting the specific circumstances that existed to substantiate the economic uncertainty or economic need at the time they applied. If you already went through this exercise, you will have a head start on answering the questions in the newly released forms.

The two forms – For-Profit Form 3509 and Nonprofit Form 3510 – purportedly have short timelines in which they must be completed and returned to lenders (10 business days from the receipt of the form/request) and the SBA (5 business days from receipt from borrowers). The forms require accurate disclosure of facts regarding business activity and liquidity, which bear on the necessity certification. Although these forms are still subject to comment until November 25th, it is important for borrowers with loans of $2 million or more to begin to think about the questions and possible answers.

Each form’s first section will inquire about the borrower’s business activities, including:

  • Sales in Q2 2020 vs. Q2 2019
  • Were the ordered shutdowns by a state or local authority after the National Emergency Declaration by President Trump (March 13, 2020)?
  • Were operations significantly altered due to state or local shutdown orders related to COVID? How? How much did these alterations cost? Were these voluntary?
  • Were operations voluntarily reduced or ceased? Why? How long?
  • Were any new capital improvements made between March 13, 2020 and the end of your covered period not due to COVID? Why? How much money?

Each form’s second section will inquire about the borrower’s liquidity, including:

  • What were your cash and cash equivalents on the last day of the calendar quarter immediately prior to the date of your PPP application?
  • Did you make any dividends or distributions (other than for tax purposes) between March 13, 2020 and the end of your covered period? How much?
  • Were any loans paid off before contractually obligated between March 13, 2020 and the end of your covered period? How much?
  • Were any employees or owners compensated in an amount that exceeds $250,000 on an annualized basis? If so, how many? What was the total compensation for those individuals during the covered period?
  • Were any other funds received from the CARES Act? If so, what program and how much?

While both For-Profit Form 3509 and Nonprofit Form 3510 follow the same format, the Nonprofit Form 3510 asks the following:

  • What type of endowments and other non-cash investments (i.e., equity, bond and real estate holdings) do you have?
  • Any restricted funds?

Regardless of the form, borrowers should heed the following advice when it comes to these forms: 1) be truthful; 2) ensure all responses are complete and accurate; and 3) start preparing answers to the above questions now, even before the comment period closes. It is also important to note that the contents of these forms may change between now and the end of the comment period; therefore, our SBA Team is ready, willing and able to help with this process.

For more information, contact your primary BMD Attorney.


Valley National Bank/Trulieve Loan: A Big Step Out of the Shadows

In a late December press release, Trulieve announced that it had secured a $71.5 million commercial bank loan. In addition to the amount of the loan, which may be the largest commercial bank loan to date to a cannabis company, the release prominently identified Valley Bank and featured both a quote from Valley’s Senior Vice President, John Myers, and a description of the Bank’s service platform and commitment to the cannabis industry.

The End of Non-Competes? The Impact It Will Have on the Healthcare Industry

On January 5, 2023, the Federal Trade Commission (“FTC”) announced a proposed rule that, if enacted, will ban employers from entering into non-compete clauses with workers (the “Rule”), and the Rule would void existing non-compete agreements. In their Notice, the FTC stated that if the Rule were to go into effect, they estimate the overall earnings of employees in the United States could increase by $250 billion to $296 billion per year. The Rule would also require employers to rescind non-competes that they had already entered into with their workers. For purposes of the Rule, the FTC has defined “worker” to also include any employees, interns, volunteers, and contractors.”

2022 Healthcare Recap and 2023 Healthcare Check-Up

As the country begins to return to a new “normal” following the COVID-19 pandemic, there are many healthcare rules changing on both the federal and state levels as a result. Thus, it is important for healthcare providers and their employers to be aware of these changing rules, and any implications they may have on their practice. Look back on healthcare in 2022 and find a checklist for 2023.

Direct Support Professional Retention Payments

On December 15, the Ohio Senate and House passed House Bill 45, which authorizes the Department of Developmental Disabilities (DODD), in conjunction with the county boards of developmental disabilities, to launch their initiative to issue retention payments to Direct Support Professionals (DSPs). These retention payments will be distributed quarterly to participating home and community-based waiver providers to address the workforce crisis in the direct provider sector. Governor DeWine needs to sign the Bill to begin the payments, but he is expected to do so by the end of 2022.

Real Estate Investors Position for 2023 Opportunities

Real estate investors weathered another year in a post-pandemic world, with the year closing with yet another interest rate increase coupled with both uncertainty and heightened interest carrying into 2023. Just last Wednesday, the Federal Reserve raised its benchmark interest rate 0.50 percentage points, shifting the target range to 4.25% to 4.50%. The new level is the highest the fed funds rate has been since December 2007 and marks the seventh rate hike this year. So what does this mean to investors, brokers, lenders, and others in the real estate world? Read a few perspectives below from stakeholders familiar with our BMD clients and the markets in which they do business.