Paycheck Protection Program Second Draw Loans

Schneider Downs continues to track the evolving landscape of federal financial programs offered in the wake of the business disruption caused by the coronavirus crisis. On December 21, 2020, the Consolidated Appropriations Act (the Act) was passed by both houses of Congress. See our article for a high level summary of some of the provisions included in the Act. One of the provisions was the inclusion of a second round of Paycheck Protection Program loans which has been titled under the Act, Paycheck Protection Program Second Draw Loans (PPP2). 

Who’s Eligible?

Under PPP2, eligible employers are those entities, including nonprofit organizations, housing cooperatives, veterans’ organizations, Tribal business entities, eligible self-employed individuals, sole proprietors, independent contractors or small agricultural cooperatives, that:

• Were in operation on February 15, 2020; AND
• Employ less than 300 employees; AND
• Had a reduction of gross receipts during the first, second or third quarter in 2020 in excess of 25% from gross receipts during the same quarter in 2019.  For applications submitted on or after January 1, 2021, applications may include the fourth quarter of 2020 in comparison to the same quarter in 2019.

If an applicant was not in operation during the first or second quarter of 2019, the applicant will compare their applicable 2020 quarter to the third quarter of 2019. If the applicant was not in operation during the third quarter of 2019, the applicant will compare their applicable 2020 quarter to the fourth quarter of 2019. Applications that were not in operation during the fourth quarter of 2019 will compare their second, third or fourth quarter (only if the application is on or after January 1, 2021) to their first quarter of 2020.  

For business with more than one physical location that operate under a North American Industry Classification System (NAICS) code beginning with 72 (typically restaurants and hotels), if they meet the reduction of quarterly gross receipts above, they can employ up to 300 employees per physical location.  

The same affiliation rules (and waiver of affiliation rules for businesses under NAICS 72 and franchises with a franchise identifier code) apply to the determination of employees that were established under the CARES Act apply to PPP2 loans.   

Eligible entities are still required to make a good faith certification that: 

1. the uncertainty of current economic conditions makes necessary the loan request to support the ongoing operations of the eligible recipient

2. that funds will be used to retain workers and maintain payroll or make mortgage payments, lease payments, and utility payments. (It appears that the bill has not updated certification to included newly eligible costs that are described below.  This may be a future revision by the Treasury and SBA).

Eligible entities are only entitled to one PPP2 loan.   

Who’s not eligible?

The following businesses are not eligible for a loan under PPP2

• Under Title 13, Section 120.110, certain businesses are not eligible for SBA business loans or PPP2 loans except for:
  • non-profit business and Businesses principally engaged in teaching, instructing, counseling or indoctrinating religion or religious beliefs, whether in a religious or secular setting, which have been allowed under the Act.
• Any business that is primarily engaged in political or lobbying activities, research or engaging in advocacy for public policy or pollical strategy.   
• Any business that receives a “Shuttered Venue Operator Grant” under the Act.
• Certain entities that are 20% or more owned, directly or indirectly, by entities organized under the People’s Republic of China or Special Administrative Region of Hong Kong.  
• Entities that retain a member of the board of directors with a person who is a resident of the People’s Republic of China.  
• Agents representing the interests of foreign powers in a "political or quasi-political capacity" that are registered under the Foreign Registration Act of 1938.  
• A business that did not receive a loan under the original PPP loan, however they may still apply for a first draw. Also, those that did receive a PPP loan must have used or will use the full amount of the loan received under the original PPP on or before disbursement of PPP2.

How much of a loan amount is a business eligible for? 

The amount that businesses are eligible to receive will also be consistent with the formula from the first round of loans. Generally, the maximum amount is the lesser of $2,000,000 or 2.5x the businesses monthly payroll costs for calendar year 2019, or the 1-year period before the date on which the loan is made.  

Seasonal employers are required to use any 12-week period between February 15, 2019 and February 15, 2020 to compute monthly payroll but are still eligible for up to $2,000,000. New entities, i.e. those not in existence for the 1-year period to February 15, 2020, have special rules also.  

NAICS 72 entities are eligible for the lesser of $2,000,000 and 3.5x their monthly payroll costs.

Gross Receipts and Simplified Certification of Revenue

For loans less than $150,000, borrowers may certify that that they meet the loss of revenue requirement under the Act. Upon filing for forgiveness, the Company will be required to submit the documentation of the revenue loss. For non-profit organizations and veterans’ organizations, gross receipts are those within the meaning of Section 6033 of the Internal Revenue Code 1986.   

Loan Forgiveness

Borrowers that use the PPP2 loan proceeds during the covered period may be eligible for forgiveness. There is more flexibility in PPP2 than the original PPP1 loan covered.  For PPP2 the covered period will start from the loan origination date and span a minimum of 8 weeks up to 24 weeks. A borrower may elect a covered that is between 8 weeks and 24 weeks also.    

The amount to which a borrower is entitled to is equal to the following costs incurred or expenditures made during the covered period:

1) Payroll costs, excluding 

a. those taken into account for determining the employee retention credit
b. qualified wages taken into account in determining the credit allowed under subsection (a) or (d) of section 303 of the Taxpayer Certainty and Disaster Relief Act of 2020, which is a general employee retention credit for a qualified disaster.

2) Payment of interest on any covered mortgage
3) Any covered operations expenditure
4) Any covered property damage cost
5) Any payment on any covered rent obligation
6) Any covered utility payment
7) Any covered supplier cost
8) Any covered worker protection expenditure

Limitation on Forgiveness

Similar to the first round of the PPP, there may be a limit to the amount of forgiveness that a borrower is eligible for. Those are:

1. The reduction associated with maintaining headcount

2. The borrower is required to use at least 60% of the loan proceeds on payroll costs. Forgiveness will be a limited to the quotient obtained by dividing the amount of payroll costs incurred by 0.60.

Availability and Rules

The SBA has 10 days from the enactment of the Act to issue guidance addressing barriers to accessing capital for minority, underserved, veteran, and women-owned business concerns for the purpose of ensuring equitable access to covered loans.

Under the original PPP, loans were available until August 8, 2020. Once the Act becomes effective, loans for entities still eligible for PPP1 loans and second draws will be available until March 31, 2021 or until the funds have been exhausted. The total available funds for PPP1 and PPP2 is $806.45 billion. As of August 8, 2020, $525.01 billion was distributed during the first round.  

If you need more information or assistance regarding your PPP loan, visit our website at schneiderdowns.com/ppp, reach out to any of your contacts at Schneider Downs or contact Joel Rosenthal at [email protected].