SBA Issues Guidance on Navigating Paycheck Protection Program Loans in M&A Transactions

Ruder Ware

After several months of uncertainty, businesses are carefully resuming merger and acquisition transactions. Many (if not most) small businesses took advantage of the Paycheck Protection Program, but, as forgiveness is still pending, they are forced to navigate the treatment of these loans in the sale or acquisition process. The SBA issued a procedural notice regarding its requirements effective October 2nd.

The Notice provides the requirements a PPP borrower must meet in order to avoid losing its chance at loan forgiveness as a result of a “change of ownership.” A “change of ownership” includes: (1) a transfer of at least 20% of a borrower’s ownership interests in one or more transactions; (2) the sale of 50% of an entity’s assets in one or more transactions; and (3) the merger of a borrower into another entity. All transactions since the date the PPP loan was approved are aggregated when determining if a change of ownership has occurred.

Borrowers must notify their PPP lenders prior to the closing of any change of ownership and must provide lenders with the proposed transaction documents. Depending on the extent of the change of ownership, the structure of the transaction, and the stage of the loan forgiveness process, SBA approval may be required prior to closing. It has up to 60 days to consider a request. Even if SBA approval is not required, borrowers may be required to submit the forgiveness application and place an amount equal to the outstanding balance of the PPP loan into an escrow account to guarantee repayment of any amounts that are not forgiven. There are also specific conditions that must be met for a buyer to assume a seller’s PPP loan obligations.

Regardless of the structure, parties to a change of ownership transaction need to get their PPP lenders involved in the transaction early to avoid a delay in closing or becoming ineligible for forgiveness.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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