January 24, 2021

Volume XI, Number 24


January 22, 2021

Subscribe to Latest Legal News and Analysis

SBA Loans Under the CARES Act - Updated

The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), signed into law on Friday March 27, 2020, introduces the Paycheck Protection Program (the “PPP”) with $349 billion in funding and the goal of preventing job loss and small businesses failure due to losses caused by the COVID-19 pandemic.  The new PPP loan program is available for eligible small businesses, including sole proprietors, and non-profits, veterans organizations and tribal business concerns, to provide a forgivable loan to cover payroll and other costs.  The CARES Act greatly expands the separate Economic Injury Disaster Loan Program (the “EIDL” Program) with $10 billion of additional funding for the SBA.  

The PPP provisions of the CARES Act were further interpreted by the U.S. Small Business Administration (“SBA”) in two interim final rules issued on April 2, 2020 (the “Interim Rule”) and April 3, 2020 (the “Affiliation Rule”).  In conjunction with the issuance of the Affiliation Rule, the SBA also issued a two-page explanation of the affiliation principles applicable to the PPP (the “Affiliation Guidance”).  This Alert has been updated to reflect these SBA rules and to add some additional practical insights into the PPP program. The key updates from the Interim Rule and Affiliation Rule are highlighted in red text for ease of reference.  The Interim Rule provided important information on the calculation of the loan amount, and added some further requirements.  The Affiliation Rule and Affiliation Guidance clarified the affiliation principles that apply to applicants.   

Businesses need to understand both programs as well as the additional financial and other relief (including an Emergency Relief loan program for eligible mid-size employers) that may be available under the CARES Act in order to make short- and long-term planning decisions.  The CARES Act provides assistance to many businesses that may not meet the customary small business thresholds.  Given the various qualification criteria, the programs and incentives enacted under the CARES Act must be evaluated separately for each business, considering industry, legal requirements and financial and other contractual commitments during this challenging time.  For more information on the CARES Act, follow this link

Paycheck Protection Program (“PPP”)


PPP loans are 100% federally guaranteed loans for small businesses intended for companies to maintain their payroll levels and allow partial loan forgiveness, as described below.  Unlike most typical SBA loans, the PPP Loans are unsecured loans requiring no collateral, no personal guarantee, and no showing that credit is unavailable elsewhere.  

The Interim Rule clarifies that the PPP loans, to the extent not forgiven, will have: 

  • A 2-year term (decreased from the maximum maturity of 10 years under the Act), 

  • An interest rate of 1% (increased from prior Treasury guidance that set the interest rate at 0.5%)

  • Principal and interest deferred for 6 months and no interest charged on forgiven amounts

Small businesses and sole proprietorships can begin applying April 3, 2020, and independent contractors and self-employed individuals can begin applying April 10, 2020.  The Interim Rule also makes it clear that the loans will be made on a first-come, first-served basis.  Given the currently available funds for the program, Treasury and SBA are anticipating an over-subscription, so it is critical to gather required information and, if eligible, submit an application as soon as possible.

The SBA borrower application is available (here).  Lenders may require borrowers to complete additional paperwork.  Loans are offered through any existing SBA 7(a) lender or through any eligible and participating federally insured depositary institution, federally insured credit union, Farm Credit System institution and certain other depository or non-depository financing providers.

Eligible Borrowers and Affiliation Principles Applicable to PPP

In general and subject to certain SBA exclusions, to be eligible for a PPP loan, a company must be either (i) a small business concern under the SBA regulations, or (ii) a business concern, nonprofit organization, veterans’ organization, or Tribal business concern that employs not more than 500 employees whose principal place of residence is in the United States (or the number of employees in the size standard applicable to the borrower’s industry, which for some industries is up to 1500 employees).  This reference to United States residence is a new detail that was added by the Interim Rule, but not addressed in the CARES Act and possibly subject to further clarification by additional guidance.  Businesses in the Accommodation and Food Services Industry with more than 500 employees in multiple locations can avail themselves of the PPP loan program as long as they have 500 or fewer employees per location.  The Interim Rule does not reference or further interpret the Accommodation and Food Services Industry rules.

Notably, the CARES Act waives the SBA’s affiliation rules for determining PPP program eligibility for certain specific categories of businesses, including businesses in the Accommodation and Food Services Industry with 500 or fewer employees, businesses operating as a franchise that are assigned a franchise identifier code in the SBA Franchise Directory (available here), and businesses that receive financial assistance from a licensed Small Business Investment Company.  As stated in the Affiliation Rule, the remainder of businesses are subject to the SBA’s affiliation rules applicable to its business loan programs, summarized here in the Affiliation Guidance.  The affiliation rules used for this purpose are different than the affiliation rules used for purposes of establishing whether a company is subject to the paid sick leave and expanded FMLA requirements under the Families First Coronavirus Response Act (FFCRA), which uses the integrated employer test under the FMLA. 

Eligible companies must have been in operation on February 15, 2020 and must have, as of that date, had employees for whom the entity paid salaries and payroll taxes, or paid independent contractors.  Additional guidance is needed to understand whether companies that use professional employer organizations satisfy this requirement.  

Additionally, when applying for a PPP loan, a borrower must certify that the uncertainty of current economic conditions makes necessary the loan request to support the ongoing operations of the eligible recipient and acknowledge that the funds will be used to retain workers and maintain payroll or make mortgage payments, lease payments, and utility payments. The borrower also must certify that it is eligible for a PPP loan under the CARES Act and guidance in place as of the application date.  These and other certification requirements are significant, as false or misleading certifications could potentially give rise to civil False Claims Act liability or criminal penalties.

Amount of the Loan

The maximum amount of a PPP loan available to each borrower is equal to the lesser of: (a)  $10 million, or (b) 2.5 x its average total monthly payroll costs (as defined below).  The CARES Act and Interim Rule provide that average monthly payroll costs should be calculated over the 12-month period preceding the application, but the application form itself states that monthly payroll costs will be calculated using 2019 payroll costs for most applicants.    

For purposes of the PPP, “payroll costs” include:  

  • For a borrower other than an independent contractor, the sum of payments of any compensation with respect to employees, that is:

    • Salary, wage, commission, or other similar compensation (excluding the portion of any employee’s annual salary over $100,000, prorated, and excluding any employee whose principal place of residence is outside of the U.S.)

    • Cash tips or equivalent

    • Payment for vacation, parental, family, medical, or sick leave (other than qualified sick leave wages or qualified family leave wages under the FFCRA)

    • Allowance for dismissal or separation

    • Payment of group health care benefits and insurance premiums (generally, medical, dental, vision and health flexible spending account benefits)

    • Payment of retirement benefits

    • Payment of State or Local tax assessed on employee compensation (specifically excluding federal employment taxes, including the employee and employer share of FICA, Railroad Retirement Act taxes, and income taxes withheld from employees between February 15, 2020 and June 30, 2020)

  • For an independent contractor, the sum of payments of any compensation or income of a sole proprietor or independent contractor that is a wage, commission, income, net earnings from self-employment or similar compensation (not in excess of more than $100,000 in 1 year, prorated)

The Interim Rule clarifies that independent contractors of a borrower do not count for purposes of the borrower’s PPP loan amount or forgiveness calculations. This was not clear from the face of the CARES Act, and should be considered by borrowers pursuing a PPP loan.  Since independent contractors can also apply for a PPP loan, this appears to be a change to eliminate potential double counting.

Use of Loan Proceeds

The loans may be used for the following expenses/costs from February 15, 2020 through June 30, 2020: 

  • Payroll costs (as defined above)

  • Costs related to the continuation of group health care benefits during periods of paid sick, medical or family leave, and insurance premiums

  • Employee compensation 

  • Mortgage interest obligations (but not principal)

  • Rent and utilities

  • Interest on debt incurred prior to the loan 

  • Refinancing of SBA EIDLs that are made between January 31, 2020 and April 3, 2020  

Note, however, that (i) the Interim Rule clarifies that at least 75% of the loan amount must be used for payroll costs and (ii) only a subset of these uses may be forgiven, as explained in more detail below.  This is different from prior Treasury guidance, which did not require that 75% of the loan be used for payroll costs if the borrower was not seeking forgiveness.  Certifications, including those carrying the penalties described above, must be made about the uses of the loan proceeds.


A borrower of a PPP loan is eligible for loan forgiveness up to the full amount of the loan and any accrued interest for costs incurred and payments made during the 8-week period after the origination date, subject to proper documentation, on:

  • payroll costs (as defined above),

  • mortgage interest on mortgages that had been in place prior to February 15, 2020, 

  • rent with respect to leasing agreements that had been in place before February 15, 2020, and 

  • payment of service for the distribution of electricity, gas, water, transportation, telephone, or internet access for such services that began before February 15, 2020.  

Note, however, that (i) at least 75% of the forgiven amount must be used for payroll costs and (ii) the amount of the PPP loan forgiveness may be reduced if the borrower reduces the number of employees or salaries and wages (for employees with annual salaries of $100,000 or less by more than 25%).  

The reduction penalty will not apply to the extent the borrower restores their workforce count and salaries/wages by June 30, 2020. 

Economic Injury Disaster Loan (“EIDL”) Program:

Another option for small businesses is the SBA’s existing EIDL Program, which was expanded by the CARES Act and provides for longer-term loans with favorable borrowing terms.  Companies in all 50 states, District of Columbia, and some U.S. territories are eligible for EDILs relating to economic injury caused by the COVID-19 pandemic.  While there are no loan forgiveness provisions applicable to EIDLs, companies that have already applied for or received EIDLs due to economic injury attributable to the COVID-19 pandemic can seek to refinance their EIDLs under the PPP to take advantage of the PPP’s loan forgiveness provisions.  Additionally, while companies may be eligible for loans under both programs, they are unable to seek recovery under the EIDL for the same costs that are covered by a PPP loan.

The CARES Act expanded EIDL eligibility for the period between January 31, 2020 and December 31, 2020, to include any business with not more than 500 employees, any individual operating under a sole proprietorship or as an independent contractor, and any cooperative, ESOP or tribal small business concern with not more than 500 employees. Subject to guidance from the SBA, these applicants would also appear to still be subject to the SBA’s affiliation rules governing financial assistance programs.  Entities previously eligible to receive SBA EIDLs, including small business concerns, private nonprofit organizations and small agricultural cooperatives, remain eligible for such loans under the more favorable terms authorized by the CARES Act.

To qualify for an EIDL under the CARES Act, the applicant must have suffered “substantial economic injury” from COVID-19.  EIDLs under the CARES Act are based on a company’s actual economic injury determined by the SBA (less any recoveries such as insurance proceeds) up to $2 million.  EIDLs may be used for payroll and other costs as well as to cover increased costs due to supply chain interruption, to pay obligations that cannot be met due to revenue loss and for other uses.  The interest rate on EIDLs is 3.75% fixed for small businesses and 2.75% for nonprofits.  The EIDLs have up to a 30-year term and amortization (determined on a case-by-case basis).  

The CARES Act also permits applicants to request an advance of up to $10,000 to pay allowable working capital needs; the Act stated the advance is expected to be paid by the SBA within 3 days of submission of an EIDL application to SBA, provided the application contains a self-certification under penalty of perjury of the applicant’s eligibility for an EIDL.  However, the SBA’s website now indicates that the funds will only be made available “within days following a successful application.” This advance is still essentially a grant and is not required to be repaid, even if an eligible borrower is ultimately denied an EIDL, but the amount of the advance must be deducted from any loan forgiveness amounts under a PPP loan, described above.

EIDLs under the CARES Act do not require personal guarantees for loans up to $200,000, but do require personal guarantees by owners of more the 20% of the borrower for loans in excess of that amount.  The CARES Act waives the requirement for the borrower to demonstrate that it is unable to obtain credit elsewhere.  However, unless changed by the SBA, it appears that the requirement for collateral on EIDLs over $25,000 would still apply, and, in processing a borrower’s application, the SBA must make a determination that the applicant has the ability to repay the loan.  Further, the SBA can approve a loan based solely on the credit score of the applicant or other means of determining the applicant’s ability to repay the loan, without requiring the submission of tax returns, which should expedite approval of EIDLs during the covered period.

Given the very favorable terms of these two SBA loan programs and the potential for loan forgiveness under PPP loans, eligible small businesses who have been economically impacted by the COVID-19 pandemic should strongly consider taking advantage of these loan programs.  Applications for EIDLs should be submitted directly to the SBA, while PPP loans will be available from SBA-approved lenders and the other lenders described above.

For more information about recommended steps, please contact your Foley relationship partner. For additional web-based resources available to assist you in monitoring the spread of the coronavirus on a global basis, you may wish to visit the CDC and the World Health Organization.

© 2020 Foley & Lardner LLPNational Law Review, Volume X, Number 98



About this Author

Jamie N. Class Partner Boston Finance Corporate Bankruptcy & Business Reorganizations

Jamie N. Class is a partner and business lawyer with Foley & Lardner LLP. She advises clients in structuring, negotiating and closing debt financing transactions and restructurings. Jamie has more than 20 years’ experience representing US and global clients as issuers of and investors in debt instruments in a broad variety of debt financing and restructuring transactions.

Jamie is skilled at working with multiple parties to close syndicated secured and unsecured credit facilities, private placements and public offerings of securities, second lien notes, tender offers, exchange...

Frank Murray, Government Contractors, procurement law, Foley Lardner Law Firm

Frank Murray, Jr. is senior counsel and a business lawyer with Foley & Lardner LLP where he focuses his practice on issues related to government procurement and supply chain regulation. He is a member of the firm’s Government & Public Policy and Government Procurement Supply Chain Regulation Practices and the Automotive Industry Team.

Mr. Murray advises government contractors and commercial clients seeking to do business with the federal government on wide-ranging procurement law issues, including both pre-award and post-award bid...

Erin L. Toomey, Foley Lardner, Government Contracts Attorney

Erin L. Toomey is a partner and government contracts attorney at Foley & Lardner LLP, where she assists companies to reduce their risk and maximize their recovery when contracting with the government. Ms. Toomey represents clients in a range of industries, including automotive, aerospace, construction, and health care, and counsels such clients in all areas of government procurement, employing innovative and effective legal strategies to protect and promote her clients’ objectives. In recognition of Ms. Toomey’s and her colleagues’ work in this area, Foley’s...

Thomas B. Spillane Business Attorney Foley & Lardner Detroit, MI

Thomas B. Spillane, Jr. is a partner and business lawyer with Foley & Lardner LLP. A seasoned business counselor, his practice focuses on mergers and acquisitions, domestic and international joint ventures, restructuring transactions, bankruptcy acquisitions, executive compensation planning, director representation, project finance transactions, and general corporate representation of public and private companies in a variety of industries, including automotive, technology, aerospace, real estate development, energy, casinos, and health care. Mr. Spillane is former co-chair of the firm...


Leslie A. Pinney is an associate with Foley & Lardner LLP, and a member of the firm’s Transactions Practice.

Prior to joining Foley, Leslie served as a law clerk to the Honorable Nancy G. Edmunds, United States District Court for the Eastern District of Michigan. Leslie also served as a judicial intern to the Honorable Judith E. Levy, United States District Court for the Eastern District of Michigan and interned for a semester with the University of Michigan Vice President and General Counsel's Office.

Before pursuing a legal career, Ms. Pinney worked...