In Built In, Ed Zimmerman, Kathleen A. McGee, and Kimberly E. Lomot discuss the confusion regarding startups' eligibility under PPP for SBA loans, including how venture capital-backed growth companies should consider certifying “need” under the CARES Act. “The reporting in the press was, ‘Startups are totally ineligible or almost totally ineligible,’” says Zimmerman. “But that’s not what the law says. That’s analysis under Section 103, and the proper way to do the analysis is under 301.” He goes on to clarify under what conditions “negative control” by minority owners may constitute affiliation so as to bar PPP loan eligibility, and how to avoid this through irrevocable waivers or amended charters.
Both Zimmerman and McGee emphasize the importance of documentation. McGee, former Bureau Chief at the New York State Attorney General’s Office, explains the potential risk of future prosecution for companies applying for PPP without having properly assessed the “necessity” certification: “If it is demonstrable on the budget in the Excel spreadsheet you’re keeping that things are going to get much tighter because of COVID-19, then I think you’re justified. … But you have to have that good faith justification. If you have a year of bank, it’s probably going to be a flag raised for regulators.”
Lomot, who has years of experience counseling both borrowers and lenders on SBA loans, also urges caution in taking the certifications seriously: “eagerness to claim available funds…could get startups in trouble if they’re not applying in good faith.”