February 5, 2023

Volume XIII, Number 36

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February 03, 2023

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February 02, 2023

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Major Changes Coming To PPP With Paycheck Protection Flexibility Act

The Paycheck Protection Program Flexibility Act (PPFA), passed by both houses as of June 3, makes significant changes to the Paycheck Protection Program affecting both new and existing loans, including reducing the amount of loan proceeds that must be spent on payroll costs. While the Act is designed to provide borrowers with options to maximize the benefits of the PPP loans, the PPFA will likely require significant overhaul of recently-issued SBA guidance on loan forgiveness. Additionally, the PPFA introduces major PPP changes that could cause unwary borrowers to become ineligible for forgiveness.

True to its name, the PPFA provides borrowers with flexibility by making the following changes:

  • Extending the PPP to December 31, 2020 from its current end date of June 30, 2020.
  • Extending the date by which borrowers are required to rehire employees to be eligible for full forgiveness from June 30 to December 31, 2020.
  • Expanding the “covered period” during which borrowers must spend PPP loan proceeds from 8 to 24 weeks, although borrowers who obtained a loan prior to enactment of the PPFA may elect for the covered period to end after 8 weeks.
  • The minimum loan maturity is now 5 years, increased from the 2 year maturity term implemented by the SBA and Treasury.
  • The loan deferral period is extended from 6 months to 10 months.

As mentioned above, the PPFA also changes the PPP significantly by reducing the requirement that 75% of the loan proceeds be used on payroll costs. Now, only 60% will need to be used for payroll costs. Borrowers and lenders must take note, however, that meeting the 60/40 threshold is now a requirement for obtaining any loan forgiveness, whereas the SBA under the original PPP allowed for reduced forgiveness if the 75% threshold was not met. Under the PPFA, borrowers who fail to meet the 60% threshold will be deemed ineligible for loan forgiveness. It remains to be seen, however, whether the SBA and Treasury will follow the text of the bill - cutting off all forgiveness if the threshold is not met - or keep the current forgiveness reduction formula in place. In this regard, a co-sponsor of the PPFA, Rep. Chip Roy, stated that the intent of the bill was to maintain the reduced forgiveness aspect.

The Act also codifies the SBA guidance that borrowers will not have their forgiveness amounts reduced for not rehiring employees if the employees decline to return to work. Additionally, borrowers are not penalized if they are unable to hire similarly qualified employees for unfilled positions, or are unable to return to the same level of business activity due to COVID-19. Borrowers must be able to provide documentation that they qualify for these rehiring exceptions.

The PPFA applies retroactively to any PPP loan already made. Needless to say, there are many questions that will need to be resolved by SBA and Treasury guidance, such as how the PPFA affects borrowers that have already finished the currently applicable 8-week period, as well as those borrowers that have already rehired employees based upon the June 30 deadline.

© 2023 Bracewell LLPNational Law Review, Volume X, Number 157

About this Author

David Shargel, commercial litigation, white collar criminal defense attorney, Bracewell Law firm

David Shargel is a senior counsel in the trial section of Bracewell's New York office. His litigation practice focuses general commercial litigation, internal investigations and white collar criminal defense. Mr. Shargel's practice also involves issues surrounding electronic discovery and data management.

Mr. Shargel has litigated complex commercial disputes involving contract, business torts, insurance coverage, technology and fraud, and has litigated disputes concerning federal and state constitutional law, including the Commerce and Due...

Rachel goldman, complex commercial litigation, attorney, Bracewell law

Rachel Goldman is an experienced litigator in both federal and state courts, at the trial and appellate levels. Her practice focuses on complex commercial matters, including claims for breach of contract, post-acquisition disputes, class actions, False Claims Act cases, insurance coverage disputes, contested bankruptcy matters, challenges under the Commerce Clause and the Supremacy Clause, government regulation, securities litigation, construction law, First Amendment and libel actions. Additionally, Rachel's tenure as in-house counsel provides a valuable perspective of...

David Ball, Intellectual Property Attorney, Bracewell Giuliani, law firm

David J. Ball is a partner in Bracewell's litigation practice. David has experience in the areas of intellectual property litigation (patent, copyright, trademark, trade dress, and IP theft), bankruptcy litigation, and state and federal appeals.  He also regularly represents financial services firms (international banks, regional banks, hedge funds, etc.) in complex commercial disputes.  David routinely draws on his litigation experience to counsel clients in all manner of business transactions, including risk analysis, contract formation, mergers and acquisitions, and...

Joseph T. Lasher Complex Commercial Litigation Attorney Bracewell New York, NY

Joseph Lasher focuses his practice on complex commercial litigation matters and contractual disputes. He advises clients through all phases of the litigation process, including motion practice, trial, and settlement.

Joseph previously served as judicial intern to the Honorable Nanette Laughrey of the U.S. District Court for the Western District of Missouri. He also worked at the Duke Health Justice Clinic as a certified law student, representing clients in disability cases.