In response to the COVID-19 public health emergency, which has dramatically affected global commerce, the U.S. healthcare system, and the U.S. economy, on March 27, 2020, the President signed into law the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), a sweeping stimulus bill intended to bolster the U.S. economy, among other things, and provide emergency assistance to qualifying businesses and individuals. Among its many provisions, the CARES Act establishes two loan programs intended to provide liquidity to businesses in the United States: (A) The Keeping American Workers Paid and Employed Act, which creates the Paycheck Protection Program (PPP), and (B) The Coronavirus Economic Stabilization Act of 2020, which creates loan programs to be directed by the United States Department of the Treasury, including a loan program specifically intended to support programs or facilities created by the Board of Governors of the Federal Reserve System.

Q: What is the Coronavirus Economic Stabilization Act of 2020 (CESA)?[1]

A: CESA is Title IV, Subtitle A of the CARES Act, created for the purposes of providing liquidity to the financial system that supports lending to eligible businesses, States or municipalities. The total amount appropriated for CESA is $500 billion.

Q: Is my business eligible to receive relief under CESA?[2]

A: Your business is eligible to apply for relief under CESA if it is:

• An air carrier; or
• A U.S. business that has not otherwise received adequate economic relief under other provisions of the CARES Act. Please note that small businesses are also eligible to receive special assistance described in the Keeping American Workers Paid and Employed Act.

Q: How much funding is available?[3]

A: CESA authorizes not more than $500 billion in assistance. This amount is allocated as follows:

• Up to $25 billion for passenger air carriers, repair stations and other businesses that are approved to perform inspection, repair, replace or overhaul services, and ticket agents;
• Up to $4 billion for cargo air carriers;
• Up to $17 billion for businesses critical to maintaining national security (collectively, with the two categories above, the “Specified Treasury Loan Program”); and
• Up to $454 billion plus the total unused amounts in the above three categories for other eligible businesses (the “Joint Treasury / Federal Reserve Loan Program”)

Q: What criteria does my business need to satisfy to apply for relief under CESA?[4]

A: With respect to businesses eligible for the Specified Treasury Loan Program, the Treasury must determine that:

• Credit is not otherwise reasonably available to the eligible business at the time of the transaction;
• The eligible business is created or organized in the United States or under the laws of the United States and has significant operations in and a majority of its employees based in the United States;
• The eligible business must have incurred or is expected to incur covered losses such that the continued operations of the business are jeopardized without such financing; and[5]
• The relevant loans, loan guarantees or other obligations are prudently incurred.

Q: What forms of relief are available?[6]

A: The Specified Treasury Loan Program will provide direct loans, loan guarantees, and other investments (including purchases of obligations or other interests both directly from issuers and in secondary markets).

For the Joint Treasury / Federal Reserve Loan Program, the loans must be direct loans to businesses as Borrowers and not part of:

• a syndicated loan,
• a loan originated by a financial institution in the ordinary course of business, or
• a securities or capital markets transaction.[7]

Q: When will we know more about the application process?[8]

A: With respect to Specified Treasury Loan Program, the Secretary of the Treasury is required to publish procedures for application to participate in the program within 10 days after enactment of the CARES Act. These procedures likely will include guidance to eligible businesses with respect the application process, including the timing for application submissions and the information or other materials necessary to be considered for relief.

With respect to Joint Treasury / Federal Reserve Loan Program, a specific time period for the application process has not been provided.

Q: If my business receives relief, what will the loan terms be?[9]

A: Subject to the specific terms and conditions discussed below, the Treasury Department has been given broad discretion as to the form, terms and conditions, covenants, and requirements of the loans and loan guarantees. Notwithstanding this broad discretion, the CARES Act provides that loans or loan guarantees can have a term to maturity of no longer than five (5) years and the interest rate will be determined by the Treasury Department based on the risk and current average yield on outstanding marketable obligations of the US of comparable maturity. Further, loans originated under the Specified Treasury Loan Program, the loans will be must be sufficiently secured or be made at a rate that (1) reflects the risk incurred and (2) to the extent practicable, the interest rate cannot be less than the market rate for comparable obligations prevalent prior to the COVID-19 outbreak.

Note: There is no specific program for mid-sized businesses (500 to 10,000 employees), but the CARES Act does include language requiring the Treasury Department to endeavor to implement a program that provides financing to lenders that for the purpose of making in turn make loans to eligible businesses. A more detailed summary will be created following program implementation.

Q: If my business receives relief, what Conditions will be attached?

A: Businesses that receive assistance under the Specified Treasury Loan Program must agree that they will:

• Not, during the term of the loan or loan guarantee and for twelve (12) months after the loan or loan guarantee is no longer outstanding, purchase shares of its or any parent company’s equity securities that are listed on a national securities exchange, unless a contractual obligation to repurchase shares was in effect on the date of enactment of the CARES Act.[10];
• Not, during the term of the loan or loan guarantee and for twelve (12) months after the loan or guarantee is no longer outstanding, pay dividends or make other capital distributions with respect to the common stock of the eligible business[11][12]; and
• Maintain, during the period commencing on March 24, 2020 and ending on September 30, 2020, at least 90% of the eligible business’s employment levels in place on March 24, 2020.[13]

Businesses that receive assistance under the Joint Treasury / Federal Reserve Loan Program must agree that they will:

• Not, during the term of the loan or loan guarantee and for 12 months after the loan or loan guarantee is no longer outstanding, repurchase shares of its or any parent company’s equity securities that are listed on a national securities exchange, unless a contractual obligation to repurchase shares was in effect on the date of enactment of the CARES Act;
• Not, during the term of the loan or loan guarantee and for 12 months after the loan or guarantee is no longer outstanding, pay dividends or make other capital distributions with respect to the common stock of the eligible business; and
• Comply with the following limitations regarding executive compensation from the execution date of the loan agreement (or similar instrument) to one year after the date on which the loan is outstanding[14]:
  • No officer or employee whose total compensation in 2019 exceeded $425,000 shall: (1) receive from the eligible business total compensation that (for a consecutive 12-month period) exceeds total compensation received by the officer or employee from the business in 2019; and (2) receive from the business severance pay or other benefits upon termination of employment with the eligible business which exceeds twice the maximum total compensation received by the officer or employee from the eligible business in calendar year 2019; and
  • No officer or employee of the business whose total compensation exceeded $3 million in 2019 may receive during any 12 consecutive months’ compensation in excess (1) $3 million; and (2) 50 percent of the excess over $3 million of the total compensation received by the officer or employee from the eligible business in calendar year 2019.

Note: The CARES Act leaves a number of questions unanswered, including:

• How “total compensation” is calculated (e.g., in accordance with the rules under Item 402 of Regulation S-K for reporting compensation in the Summary Compensation Table of a public company’s Form 10-K or proxy statement?);
• The treatment of officers and employees hired after January 1, 2019 (e.g., would “total compensation” in 2019 be annualized for 2019 hires, and would post-2019 hires be excluded?);
• Whether the Borrower would be required to obtain waivers from officers and employees of pre-existing contractual entitlements to severance (e.g., under an employment agreement);
• Whether the limit on severance applies to all payments or benefits that are triggered by a termination of employment that occurs during the two-year period, even if the “excess” severance is paid after the end of the period; and
• Whether accelerated vesting of equity awards counts as severance for purposes of the severance limit.

Frequently Asked Questions About The Keeping American Workers Paid and Employed Act and the Paycheck Protection Program (“PPP”)

Q: What is The Paycheck Protection Program (“PPP”)?

A: PPP is Section 1102 of the Keeping American Workers Paid and Employed Act, which is Title I of the CARES Act. It creates a $349 billion package that expands the Small Business Administration’s (“SBA”) existing Section 7(a) loan program[15] to provide loans and loan guarantees (“PPP loans”) of up to $10 million for small businesses, nonprofit organizations, sole proprietors, independent contractors and self-employed individuals (herein referred to as “Borrowers”), along with loan forgiveness for proceeds used for certain payroll and fixed costs. The last day to apply for and receive a loan is June 30, 2020[16] and funds will be allocated on a “first-come, first-served” basis until there are none remaining.[17] Although the program is open until June 30, 2020, the SBA has explicitly encouraged businesses to apply as quickly as possible because the PPP program has a funding cap.[18]

Q: Am I or my business eligible to receive a PPP loan?

A: An eligible Borrower is a business concern that (taking into account SBA’s affiliation rules at 13 C.F.R. 121.301 except where inapplicable):

(i) a small business concern as defined in Section 3 of the Small Business Act; (ii) has 500 or fewer employees whose principal place of residence is in the United States; or (iii) is a tax-exempt 501(c)(3) nonprofit organization, a tax-exempt 501(c)(19) veterans organization, a Tribal business concern;[19 and

• Was in operation on February 15, 2020;[20] and
• Had salaried employees or paid independent contractors, as reported on a Form 1099-MISC, as of February 15, 2020.[21]

Individuals who operate under sole proprietorships, as independent contractors, or are self-employed are also eligible to apply if they were in operation on February 15, 2020.[22] Private equity or venture capital investors should be particularly focused on issues of affiliation as the SBA frequently finds investors to be affiliated with not only a single small business, but also with the other portfolio businesses held by that investor. Investors, including passive investors, who hold majority interests in a concern are likely to be affiliated with that business. The PPP provides that the SBA should issue guidance to lenders that prioritizes Borrowers in underserved and rural markets, including veterans, those in the military community, small businesses owned by socially and economically disadvantaged individuals, women and businesses that have been in operation for less than two years.[23]   Note that, unlike under CESA, the Borrower does not need to show that it was unable to obtain credit elsewhere.[24] Also note that other SBA programs, including economic injury and disaster loans, remain available as well.

Q: Are there other grounds on which a Borrower May Be ineligible?

A: Yes. Among other reasons, a Borrower may be ineligible if:

• An owner of twenty percent (20%) or more of the Borrower’s equity is incarcerated, on probation, on parole, subject to an indictment or other criminal charges in any jurisdiction, or has been convicted of a felony in the past five (5) years; or,
• The Borrower or any business owned or controlled by the Borrower or by the owners of the Borrower, has ever obtained a direct or guaranteed loan from the SBA or any other Federal agency that is currently delinquent or has defaulted within the last seven (7) years and has caused a loss to the government.[25]
• The Borrower is a business that is ineligible for PPP loans on any of the grounds identified in 13 CFR 120.110 or any owner of the business with a greater than 20% stockholder interest is ineligible under these same provisions.[26]
• Household employers are not eligible under the PPP.[27]

Q: What affiliation rules apply for purposes of determining eligibility?

A: The applicable affiliation rules are in 13 C.F.R. 121.301.[28]

Q: What entities are exempt from these affiliation rules?

A: The following types of entities are not subject to affiliation considerations:

• Faith-based organizations;[29]
• Business concerns with not more than 500 employees with the North American Industry Classification System Code 72 (pertaining to the hospitality industry)[30]
• Any business concern operating as a franchise that is assigned a Small Business Administration franchise identifier code;[31] and
• Any business concern that receives financial assistance from a company licensed under section 301 of the Small Business Investment Act of 1958 (15 U.S.C. 681).[32]

Q: What can my business use PPP loan proceeds for and do any of those uses qualify for loan forgiveness?

A: The proceeds of PPP loans can be used for the following purposes, most of which qualify for loan forgiveness if such costs are incurred within eight weeks of origination of the PPP loan:

• Payroll costs, which includes compensation to U.S. based employees in the form of salary, wages, commissions or similar compensation; cash tips or the equivalent; payment for vacation, parental, family, medical or sick leave; allowance for separation or dismissal; payments for the provision of group health care coverage and insurance premiums and retirement; and payment of state and local taxes assessed on employee compensation[33];
• Costs related to the continuation of group health care benefits during periods of paid sick, medical, or family leave, and insurance premiums; [34]
• Payments of interest (but not payments of principal or prepayments) on any mortgage obligation[35];
• Rent (including rent under a lease agreement); [36]
• Utilities; [37]
• Interest on any other debt incurred before February 15, 2020[38]; or
• Refinancing an SBA economic injury disaster loan (“EIDL”) made between January 31, 2020 and April 3, 2020, subject to certain conditions.[39]

At least 75% of the PPP loan proceeds must be used towards payroll costs.[40]  Borrowers can receive forgiveness of the principal[41] of the PPP loan in an amount equaling the costs incurred or paid during the eight week period following the origination of such loan that relate to payroll costs, mortgage interest, rent, or utilities owed, not to exceed the PPP loan principal.[42]  The amount of principal forgiven will be reduced by an amount calculated pursuant to a formula that is based upon the Borrower’s failure to maintain an average number of full-time equivalent employee positions per month during the eight week period following the origination of the PPP loan, compared to the average number of full-time equivalent employees per month employed by the Borrower during the period of either February 15, 2019 through June 30, 2019, or January 1, 2020 through February 29, 2020 (as selected by the Borrower).[43]  The amount of principal forgiven will also be reduced by an amount equal to any employee’s salary reduction that exceeds 25% of such employee’s salary during the most recent quarter (excluding employees making over $100,000 per year).[44]  Borrowers can reinstate these jobs and pay levels by June 30, 2020 to recover credit towards loan forgiveness.[45]   The amount of forgiven principal will be increased by an amount equal to any increases in wages a Borrower gives to tipped employees.[46]   Forgiveness of PPP loans is not considered cancellation of indebtedness income for the purposes of the Internal Revenue Code, and is therefore excluded from gross income for tax purposes.[47]

Q: What are the terms of the PPP loans?

A: The maximum principal amount is the lesser of:

• The sum of (i) 2.5 multiplied by the Borrower’s average monthly expenses for payroll costs (excluding the portion of employee income exceeding $100,000 per year) from the last twelve months for employees whose principal place of residence is the United States.[48], plus (ii) the outstanding amount of any loan held by the Borrower under the SBA Disaster Loan Program that is being refinanced by the Borrower with the proceeds of the new PPP loan; and
• $10,000,000.[49]

The interest rate is the same for all Borrowers and, as currently set by the Secretary of the Treasury, is a 1% per annum fixed rate.[50]  The maturity period for PPP loan amounts that are not forgiven, as discussed above, has currently been set by the Secretary of the Treasury as two (2) years from the date of the Borrower’s application for forgiveness.[51] Borrowers may pay off the loan earlier than the scheduled maturity date, as there are no prepayment penalties.[52]  Lenders must defer all payments (including principal, interest and fees) for a period of six (6) months, during which period interest will accrue.[53]   No personal guarantees or collateral are required for PPP loans. [54] There is no personal liability on the PPP loan obligation for any individual shareholder, member or partner of the Borrower, except to the extent that such party uses the proceeds of the PPP loan for unauthorized purposes.[55]  The SBA’s guarantee fee and yearly fee are waived for PPP loans.[56]

Q. Are there any other requirements of Borrowers?

A: A Borrower must make a good faith certification that:

• It was in operation on February 15, 2020 and had employees for whom it paid salaries and payroll taxes or paid independent contractors, as reported on a Form 1099-MISC;
• Current economic uncertainty makes the loan request necessary to support ongoing operations;
• The funds will be used to retain workers, maintain payroll, or make mortgage, lease, or utility payments, and not more than 25% of loan proceeds may be will be used for non-payroll costs;
• It will submit documentation verifying the number of full-time equivalent employees on payroll as well as the dollar amounts of payroll costs, covered mortgage interest payments, covered rent payments, and covered utilities for the eight week period following this loan will be provided to the lender;
• The Borrower does not have an application pending for another PPP loan for the same purpose and duplicative of amounts applied for or already received under PPP; and
• The Borrower has not and will not receive amounts under PPP between February 15, 2020 and December 31, 2020 for the same purpose and duplicative of amount applied for.[57]

Q. How can Borrowers apply for loans?

A: Borrowers can apply through any existing SBA 7(a) lender or through any federally insured depository institution, federally insured credit union or Farm Credit System Institution that is participating in the PPP program (and certain other approved lenders specified by the U.S. Department of the Treasury), [58] by submitting the SBA Form 2483 application form developed by the Treasury Department and such other information required by such lender, and specified payroll documentation. This payroll documentation could include things such as payroll processor records, payroll tax filings or income and expenses from a sole proprietorship.[59] Through existing SBA 7(a) lenders, small businesses and sole proprietors may begin applying on April 3, 2020 while independent contractors and self-employed individuals are eligible to apply beginning April 10, 2020.[60] As new participating lenders are approved under the PPP program, they will also become available to make these loans.

Q. Can Borrowers Apply for Multiple Loans?

A: No. Borrowers can only receive one PPP loan and so the SBA encourages applicants to apply for the maximum amount that they wish to receive.[61]

Q. How can borrowers apply for loan Forgiveness?

A: Borrowers should submit a request to the lender servicing the loan that includes documents verifying the number of full-time equivalent employees and pay rates, as well as payments on true eligible mortgage,[62] lease, and utility obligations. Borrowers must certify (a) that these documents are accurate and (b) that the forgiveness amount was used to keep employees and make eligible mortgage interest, lease and utility payments. The lender must make a decision on the forgiveness within 60 days. [63]

Q. Are electronic signatures acceptable?

A: Yes, e-signatures and e-consents can be used.[64]

Q. Are There Restrictions on The Use of Agents During the Application Process?

A: Yes. Among other restrictions, agents may not collect fees from the Borrower or be paid out of the PPP loan proceeds.[65]

[1] H. R. 748 (2020), §4003, p. 190

[2] Id., §4002, p. 189

[3] Id., §4003, p. 190

[4] Id., §4003, p. 191

[5] Id., §4003, p. 192

[6] Id., §4003, p. 190

[7] Id., §4003, p. 192

[8] Id., §4003, p. 191

[9] Id., §4003, p. 191; Id., §4003, p. 194

[10] Id., §4003, p. 192. Note: This restriction on purchases applies to the eligible business and “any affiliate of the eligible business.” Because the term “affiliate” is not defined in §4003, this restriction, without clarification, could be construed to prohibit executive officers and directors of the eligible business from purchasing equity securities of such eligible business or its parent company.

[11] Id., §4003, p. 192

[12] Note: The CARES Act limitation on the payment of dividends or other distributions does not exempt companies that are required to make dividends or distributions to maintain compliance with applicable provisions of the Internal Revenue Code, such as real estate investment trusts and master limited partnerships.

[13] Id., §4003, p. 193

[14] Id., §4004, p. 196

[15] Id., § 1102, p. 6

[16] Small Business Administration, Business Loan Program Temporary Changes; Paycheck Protection Program, 13 CFR Part 120, Interim Final Rule SBA-2020-0015, https://home.treasury.gov/system/files/136/PPP--IFRN%20FINAL.pdf (the “Interim Final Rule”), p. 4

[17] Id., p. 13

[18] U.S. Department of the Treasury, Paycheck Protection Program (PPP) Information Sheet, https://home.treasury.gov/system/files/136/PPP--Fact-Sheet.pdf (the PPP Fact Sheet”)

[19] 15 U.S.C. 632, §3; 15 U.S.C. 632, §31(b)(2)(C); Small Business Administration, Business Loan Program Temporary Changes; Paycheck Protection Program, 13 CFR Part 120, Interim Final Rule SBA-2020-[    ], https://home.treasury.gov/system/files/136/SBA%20IFR%202.pdf (the “Second Interim Final Rule”), pp. 5-6.

[20] H. R. 748 (2020),§ 1102, p. 10; Interim Final Rule p. 6

[21] Id.

[22] Interim Final Rule, p. 6

[23] H. R. 748 (2020), § 1102, p. 13

[24] Id., § 1102, p. 11; Interim Final Rule, p. 24

[25] Interim Final Rule p. 7

[26] Interim Final Rule p. 8; PPP Borrower Application form (available at: https://home.treasury.gov/system/files/136/Paycheck-Protection-Program-Application-3-30-2020-v3.pdf). p. 3.

[27] Interim Final Rule, p. 7

[28] Second Interim Final Rule, pp. 5-6.

[29] Second Interim Final Rule, pp. 10-11.

[30] H. R. 748 (2020),§ 1102, p. 16

[31] Id.

[32] Id., p. 17

[33] Id., § 1102, p. 7; Interim Final Rule p. 10; Note that payroll costs excludes compensation to an individual employee in excess of an annual salary of $100,000 (prorated for the covered period), and compensation to any employee whose principal place of residence is outside of the United States. H. R. 748 (2020), § 1102, p. 7; Interim Final Rule p. 11; Note also that, for independent contractors or sole proprietors, payroll costs include wages, commissions, income or net earnings from self-employment or similar compensation.   Interim Final Rule p. 10

[34] Interim Final Rule, p. 15

[35] H. R. 748 (2020), § 1102, p. 10; Interim Final Rule, p. 15

[36] Id.

[37] Id.

[38] Id.; PPP loans may also refinance loans that were made under the SBA’s Disaster Loan Program on or after January 31, 2020, and ending on the date that PPP loans are made available . Id.,

[39] Interim Final Rule, p. 15; Note that if a Borrower’s EIDL was not used for payroll costs, it does not affect a Borrower’s eligibility for a PPP loan. If a Borrower’s EIDL loan was used for payroll costs, the PPP loan must be used to refinance the EIDL loan and proceeds from any advance up to $10,000 on the EIDL loan will be deducted from the loan forgiveness amount on the PPP loan.

[40] Interim Final Rule, p. 16

[41] We note that an inconsistency exists between the PPP and the Interim Rules, giving rise to the possibility that interest on the PPP loans, as well as the principal, may be forgiven.  For example, H. R. 748 (2020), § 1106, p. 18-19, provides that “The amount of loan forgiveness under this section shall not exceed the principal amount of the financing…” (emphasis added).  In addition, several provisions of the Interim Rule reference the forgiveness of the principal of the PPP loan (see, e.g., Interim Rule p. 1 (“… the Act provides for forgiveness of up to the full principal amount of qualifying loans…”) (emphasis added); and Interim Rule p. 4 (“the full principal amount of the loans may qualify for loan forgiveness.” (emphasis added)).  However, the question “Can my PPP loan be forgiven in whole or in part” on page 13 of the Interim Rule provides that “The amount of loan forgiveness can be up to the full principal amount of the loan and any accrued interest.” (emphasis added).  Further advice from the U.S. Department of the Treasury may clarify this inconsistency.]

[42] H. R. 748 (2020), § 1106, p. 18-19; Note that with respect to mortgage interest and rent, the debt or lease agreement must have been entered into before February 15, 2020, and with respect to utility payments, service must have begun before February 15, 2020; Id., § 1106, p. 17

[43] Id., § 1106, p. 19; note that, if the Borrower is a seasonal employee, the test will be measured against the average number of full-time equivalent employees per month during the period of February 15, 2019 through June 30, 2019

[44] Id., § 1106, p. 19

[45] Id., § 1106, p. 19-20

[46] Id.

[47] Id., § 1106, p. 21

[48] Interim Final Rule, p. 8. Note that this is potentially in tension with another provision of the IFR which states that payroll costs for this purpose will be calculated using “average monthly payroll costs for the preceding calendar

[49] H. R. 748 (2020), § 1102, p. 9-10; Interim Final Rule p. 8-10

[50] Interim Final Rule, p. 11

[51] Id. , p. 12

[52] H. R. 748 (2020), § 1102, p. 13

[53] Id., § 1102, p. 12; Interim Final Rule, p. 13

[54] H. R. 748 (2020), § 1102, p. 11; Interim Final Rule p. 25

[55] Id.

[56] H. R. 748 (2020), § 1102, p. 11

[57] Interim Final Rule, p. 18; SBA Form 2483 (04/20), p.2.

[58] Id., p. 20;

[59] Id., p. 6

[60] PPP Fact Sheet

[61] Interim Final Rule, pp. 12-13

[62] Note, only interest payments on covered mortgage obligations are eligible for loan forgiveness.  H. R. 748 (2020), §1102, p. 18

[63] Id., §1106, p. 21

[64] Interim Final Rule, p. 13

[65] Id., p. 25

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