McGuireWoods is monitoring the evolving availability of government-sponsored emergency loan programs for U.S. businesses suffering losses from the COVID-19 pandemic. Potential sources include federal programs available from the U.S. Small Business Administration (SBA) under the Small Business Act of 1958; programs under the Small Business Investment Act passed by Congress in 1958; and through the Trump administration’s plans announced March 18, 2020, to establish a new $300 billion small-business interruption loan program that would provide a 100 percent guarantee on any qualifying loan as part of a proposed $1 trillion stimulus bill to be introduced in the U.S. Senate.
This alert provides current information regarding low-interest economic injury disaster loans available from the SBA, to address needs arising from the COVID-19 pandemic.
The SBA provides disaster loans to U.S. small businesses and individuals under the disaster loan program set forth in Section 7(b) of the Small Business Act. Pursuant to the Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020, COVID-19 has been deemed a disaster for purposes of the SBA disaster loan program.
COVID-19 disaster loans in amounts up to $2 million each may be issued to eligible borrowers in each state that has made an economic injury declaration to the SBA. Per updated guidance issued by the SBA on March 17, 2020, the SBA is waiving the existing requirements for county-by-county disaster declarations and is permitting declarations by each state on a statewide basis upon establishment of at least five impacted businesses in such state. The list of states that have done so can be found on the SBA website, which is currently being updated multiple times a day.
To qualify as a “small business concern” eligible for a COVID-19 disaster loan, a business must be (a) independently owned and operated, (b) not dominant in its field of operation, and (c) not larger than the relevant business size set forth in the SBA Table of Small Business Size Standards Matched to North American Industry Classification System Codes (13 C.F.R. § 121.201). The SBA’s site also provides a tool for navigating the business size classification system.
Notwithstanding the helpful links provided by the SBA, for businesses with a more complicated capital structure, the final determination of eligibility can be more complex, and the income of controlling owners of a limited liability company or other business may be combined with the income of the impacted business by the SBA for purposes of making a final determination. (See MCLANE ADVANCED TECHNOLOGIES, LLC, APPELLANT, SBA No. SIZ-4746 (2005), determining that “[t]he majority ownership rule at 13 C.F.R. § 121.103(c)(1) also applies to interests in limited liability companies, and the majority owner of a limited liability company controls and is affiliated with, that company.”)
If a business is eligible and its state has made a proper COVID-19 declaration, a COVID-19 disaster loan is now available with terms of up to 30 years. The proceeds of such a loan may be used to pay “fixed debts, payroll, accounts payable and other bills that can’t be paid because of the disaster’s impact. The interest rate is 3.75% for small businesses. The interest rate for non-profits is 2.75%.” (See March 17 SBA Advisory.)
SBA will coordinate the application process with each state as it becomes eligible, and applications can be made online. Please be aware that, as of March 18, the SBA website has suffered intermittent connectivity issues, possibly due to unusually high traffic on its website.
Subject to further updates, applications for an eligible business will generally be expected to include an IRS Form 4506-T, current information such as a personal financial statement, a schedule of liabilities and a copy of the most recently filed federal income tax return. (See (a) SBA disaster loan assistance FAQs and (b) 13 C.F.R. § 123.1.)
Please be aware that, subject to further updates by the SBA, under the current SBA disaster loan program, each COVID-19 disaster loan exceeding $25,000 is required to be secured by some form of collateral, as determined by the SBA during the review of each application. If the business has an existing credit facility, particularly a secured credit facility, it must determine whether the applicable credit documents would require consent of senior or other lenders before the business can obtain a COVID-19 disaster loan. Be aware that the lender also may need to consent to a grant of a first lien in favor of the SBA (or third-party lender of a COVID-19 disaster loan) on agreed-upon collateral in order to close a COVID-19 disaster loan.
As the landscape of available emergency stimulus is changing rapidly, McGuireWoods will continue to provide relevant updates on resulting disaster loan programs as information becomes available.
If you have any questions or need help assessing your eligibility for a COVID-19 disaster loan, please contact one of the authors. For answers to other questions related to the pandemic, please contact any of the McGuireWoods COVID-19 Response Team members.