One would think that a chapter 11 debtor has a strong need for a PPP loan, but the SBA believes otherwise. Guidance issued on 4/24 by the SBA rejects the use of such financing for companies in chapter 11, which is not surprising since bankruptcy was a disqualifying event on the PPP application. Further, if a company enters bankruptcy after applying for a loan but before the funds are disbursed, it is the company’s responsibility to contact the lender and cancel the loan. Late last week, at least one court in Texas issued a TRO in favor of the debtor with respect to a PPP loan.
The SBA's new guidance, which is embodied in a new Interim Final Rule issued just after the new funding was approved, is in the following Question and Answer format.
Will I be approved for a PPP loan if my business is in bankruptcy?
No. If the applicant or the owner of the applicant is the debtor in a bankruptcy proceeding, either at the time it submits the application or at any time before the loan is disbursed, the applicant is ineligible to receive a PPP loan. If the applicant or the owner of the applicant becomes the debtor in a bankruptcy proceeding after submitting a PPP application but before the loan is disbursed, it is the applicant’s obligation to notify the lender and request cancellation of the application. Failure by the applicant to do so will be regarded as a use of PPP funds for unauthorized purposes.
The Administrator, in consultation with the Secretary, determined that providing PPP loans to debtors in bankruptcy would present an unacceptably high risk of an unauthorized use of funds or non-repayment of unforgiven loans. In addition, the Bankruptcy Code does not require any person to make a loan or a financial accommodation to a debtor in bankruptcy. The Borrower Application Form for PPP loans (SBA Form 2483), which reflects this restriction in the form of a borrower certification, is a loan program requirement. Lenders may rely on an applicant’s representation concerning the applicant’s or an owner of the applicant’s involvement in a bankruptcy proceeding.