Some PPP loan promissory notes we have reviewed are including a definition of the borrower that includes shareholders, partners, and members, as well as officers and directors. These promissory notes are thereby attempting holding each person with those particular titles responsible for making the certifications that the borrower is required to make under the PPP loan application, including eligibility to obtain the loan in the first place.
In addition, some promissory notes are requiring the borrower to re-certify the accuracy and completeness of the statements that were made on the PPP loan application. Recent Guidance from the Department of the Treasury indicated that PPP borrowers would be responsible to the Guidance that was issued as of the date of their PPP loan applications. Like the May 7, 2020 safe harbor, these promissory notes are suggesting the borrower had better look twice and consider the current guidance at the time the promissory note is and executed notwithstanding what the guidance was at the time of the PPP loan application.