Bring-Down Certificate - New York

BRING-DOWN CERTIFICATE — NEW YORK

State of New York — Corporate Closing Documents

PART I: OVERVIEW AND PURPOSE

1.1 What Is a Bring-Down Certificate?

A bring-down certificate is a closing deliverable in which an authorized officer of a party to a transaction certifies that representations, warranties, and covenants made in the underlying agreement remain true and have been performed as of the closing date.

1.2 New York Corporate Law Framework

New York corporations are governed by the New York Business Corporation Law (BCL). New York LLCs are governed by the New York Limited Liability Company Law (LLCL). Key provisions relevant to bring-down certificates include:

• N.Y. BCL 715(a), (g) — The board may elect or appoint the listed and other officers; officer authority and duties come from the bylaws or, to the extent not provided there, the board.
• N.Y. BCL 715(h) — An officer must act in good faith and with the care an ordinarily prudent person in a like position would use under similar circumstances. The subsection also governs good-faith reliance on specified information and experts.
• N.Y. BCL 901 — Authorizes merger or consolidation as provided by the BCL. The transaction agreement and applicable entity statutes determine the required approvals and closing deliverables.
• Entity-Type Gate. BCL § 715 applies to a New York business corporation, not an LLC. For an LLC, confirm authority under its operating agreement, member or manager approvals, and the New York Limited Liability Company Law provisions applicable to the transaction.

1.3 New York-Specific Closing Considerations

New York transactions have notable requirements:

• Tax Consent. A New York domestic business corporation's certificate of dissolution and a foreign business corporation's certificate of surrender require the New York State Department of Taxation and Finance consent described in the current DOS and DTF instructions. This is transaction-specific and is not a routine requirement for every closing.
• Certificate of Status. New York's equivalent of a good standing certificate is called a "Certificate of Status," issued by the Department of State, Division of Corporations.
• Biennial Statements. Domestic and foreign business corporations and LLCs must file a biennial statement every two years. A Certificate of Status may reflect that the filing is past due; the filing need not be completed merely to request the certificate.

1.4 When Is a Bring-Down Certificate Required?

☐ Mergers and acquisitions involving New York corporations or LLCs
☐ Equity and debt financing closings
☐ Real estate transactions involving New York entity sellers
☐ Joint venture formations
☐ Any transaction where the Agreement requires an officer's certificate as a closing condition

1.5 Legal Effect

• Condition to Closing. Satisfies a condition precedent to the other party's obligation to close.
• Post-Closing Indemnification. Supports indemnification claims if certified statements prove false.
• Officer Standard. For a business corporation, N.Y. BCL 715(h) supplies the officer good-faith, care, and reliance standard. The certificate should state whether it is delivered on behalf of the entity or in an individual capacity and should track the underlying agreement exactly.
• Tax Dissolution Status. Under N.Y. Tax Law 203-a, qualifying tax and reporting delinquencies may lead to a Secretary of State proclamation declaring a covered corporation dissolved and its charter forfeited. Verify current DOS status and tax compliance rather than referring to a generic "annulment" notice.

PART II: OFFICER'S CERTIFICATE

OFFICER'S CERTIFICATE

Pursuant to Section [____] of the [____] Agreement

STATE OF NEW YORK

This Officer's Certificate (this "Certificate") is delivered pursuant to Section [________________________________] of that certain [Stock Purchase Agreement / Asset Purchase Agreement / Agreement and Plan of Merger / Credit Agreement] dated as of [__/__/____] (the "Agreement"), by and among:

Buyer/Lender: [________________________________] ("Buyer")

Seller/Borrower: [________________________________], a New York [corporation / limited liability company] (the "Company")

Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Agreement.

The undersigned, [________________________________], the duly elected and acting [Title] of the Company, hereby certifies, on behalf of the Company and not in any individual capacity, as follows:

Section 1. Organization and Good Standing

The Company is a [corporation duly organized / limited liability company duly formed] and validly existing under the laws of the State of New York. The attached Certificate of Status evidences the Company's existence and identifies any biennial-statement filing shown as past due. The Company has filed the biennial statements and paid the Department of State fees identified on Schedule A. If the Company is a corporation subject to N.Y. Tax Law 203-a, it has not been listed in a proclamation of dissolution that remains effective.

Section 2. Representations and Warranties

[SELECT ONE:]

Option A — Full Bring-Down:

Each of the representations and warranties of the Company contained in Article [____] of the Agreement is true and correct in all respects as of the date hereof with the same force and effect as though such representations and warranties had been made on and as of the date hereof, except to the extent that any such representation or warranty expressly relates to an earlier date, in which case such representation or warranty was true and correct in all respects as of such earlier date.

Option B — Materiality-Qualified Bring-Down:

Each of the representations and warranties of the Company contained in Article [____] of the Agreement is true and correct in all material respects as of the date hereof with the same force and effect as though such representations and warranties had been made on and as of the date hereof, except to the extent that any such representation or warranty expressly relates to an earlier date, in which case such representation or warranty was true and correct in all material respects as of such earlier date.

Option C — MAE-Qualified Bring-Down:

Each of the representations and warranties of the Company contained in Article [____] of the Agreement (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) is true and correct as of the date hereof, except (i) to the extent that any such representation or warranty expressly relates to an earlier date, in which case such representation or warranty was true and correct as of such earlier date, and (ii) where the failure of such representations and warranties to be true and correct would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Section 3. Performance of Covenants

The Company has performed and complied in all material respects with all covenants and agreements required by the Agreement to be performed or complied with by the Company on or before the Closing Date.

Section 4. No Material Adverse Change

Since the date of the Agreement, no event, change, occurrence, circumstance, or condition has occurred that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect.

Section 5. No Legal Impediment

No temporary restraining order, preliminary or permanent injunction, or other order issued by any court of competent jurisdiction (including any New York Supreme Court, New York federal court in the Southern or Eastern District of New York, or other court of competent jurisdiction), and no statute, rule, regulation, or executive order promulgated or enacted by any governmental authority, is in effect that prevents or prohibits the consummation of the transactions contemplated by the Agreement.

Section 6. No Proceedings

No action, suit, investigation, or proceeding is pending or, to the knowledge of the Company, threatened before any governmental authority (including the New York Department of State, the New York Department of Taxation and Finance, or the New York Attorney General) that seeks to restrain, enjoin, or otherwise prevent the consummation of the transactions contemplated by the Agreement.

Section 7. Tax Status Confirmation

The Company has filed the New York franchise-tax returns required of it and paid the franchise taxes due and payable, except as disclosed on Schedule A. If the Company is a corporation subject to N.Y. Tax Law 203-a, it has not been listed in a proclamation of dissolution that remains effective.

Section 8. Exceptions to Certifications

☐ No exceptions to the foregoing certifications exist.

☐ The following exceptions are set forth on Schedule A attached hereto:

[________________________________]

Section 9. Officer Authority

The undersigned holds the office indicated below and has been authorized by the [Board of Directors / Members / Managers] to execute and deliver this Certificate on behalf of the Company. For a business corporation, officer authority is determined under N.Y. BCL 715(g), the bylaws, and the board's resolutions. For an LLC, delete the BCL reference and confirm authority under the operating agreement and applicable member or manager approvals.

IN WITNESS WHEREOF, the undersigned has duly executed this Certificate as of [__/__/____].

[________________________________]
(Name of Company)

By: ____________________________________
Name: [________________________________]
Title: [________________________________]

PART III: SECRETARY'S CERTIFICATE

SECRETARY'S CERTIFICATE

The undersigned, [________________________________], the duly elected and acting Secretary (or Assistant Secretary) of [________________________________] (the "Company"), a New York [corporation / limited liability company], hereby certifies, on behalf of the Company and not in any individual capacity, as follows:

Section 1. Incumbency

The following persons are the duly elected or appointed officers of the Company holding the offices set forth opposite their names below, and the signatures set forth opposite their names below are their genuine signatures:

Section 2. Organizational Documents

(a) Attached hereto as Exhibit A is a true, correct, and complete copy of the [Certificate of Incorporation / Articles of Organization] of the Company as filed with the New York Department of State, Division of Corporations, as currently in effect, including all amendments thereto.

(b) Attached hereto as Exhibit B is a true, correct, and complete copy of the [Bylaws / Operating Agreement] of the Company, as currently in effect, including all amendments thereto.

Section 3. Resolutions

Attached hereto as Exhibit C is a true, correct, and complete copy of the resolutions duly adopted by the [Board of Directors / Members / Managers] of the Company authorizing the execution, delivery, and performance of the Agreement and the consummation of the transactions contemplated thereby. Such resolutions have not been amended, modified, supplemented, revoked, or rescinded and remain in full force and effect as of the date hereof.

Section 4. Certificate of Status

Attached hereto as Exhibit D is a Certificate of Status issued by the New York Department of State, Division of Corporations, dated not earlier than [____] days before the Closing Date, evidencing the Company's existence and stating any status qualification shown in the Department's records.

Section 5. Registered Agent / Process Agent

The address to which the New York Secretary of State is directed to forward process, and any separately designated registered agent, are:

Name/Address: [________________________________]

The service-of-process information in the Department of State records is current and accurate.

Section 6. Foreign Qualification

The Company is qualified to do business as a foreign [corporation / limited liability company] in good standing in the following jurisdictions:

Section 7. No Dissolution

No proceedings for the dissolution, winding up, liquidation, or reorganization of the Company have been commenced or are contemplated. No assignment for the benefit of creditors has been made. If the Company is a corporation subject to N.Y. Tax Law 203-a, it has not been listed in a proclamation of dissolution that remains effective.

Section 8. Secretary's Authority

The undersigned is the duly elected and acting Secretary of the Company and has been duly authorized to execute and deliver this Certificate.

IN WITNESS WHEREOF, the undersigned has duly executed this Certificate as of [__/__/____].

By: ____________________________________
Name: [________________________________]
Title: Secretary

[COUNTER-CERTIFICATION:]

I, [________________________________], [Title] of the Company, hereby confirm that [________________________________] is the duly elected and acting Secretary of the Company and that the signature above is his/her genuine signature.

By: ____________________________________
Name: [________________________________]
Title: [________________________________]

PART IV: GOOD STANDING CERTIFICATE PROCEDURES — NEW YORK

4.1 Terminology

New York uses the term "Certificate of Status" for its official entity status certificate. It is also commonly referred to as a Certificate of Good Standing or Certificate of Existence. It is issued by the New York Department of State, Division of Corporations.

4.2 Issuing Authority

New York Department of State
Division of Corporations, State Records and Uniform Commercial Code
One Commerce Plaza
99 Washington Avenue
Albany, NY 12231
Phone: (518) 473-2492
Website: https://dos.ny.gov

4.3 How to Obtain a Certificate of Status

IMPORTANT: The Department of State currently accepts written Certificate of Status requests by mail, hand delivery, or email. Certificates cannot be ordered through an online ordering system or over the telephone. Check the official page immediately before ordering because submission methods can change.

By Mail:
☐ Submit a written request to the Division of Corporations at the address above
☐ The request must include:

• A specific statement requesting a Certificate of Status
• The exact name of the corporation or business entity
• The DOS ID number or the exact date of formation/authorization (if known)
• A statement as to whether routine or expedited processing is requested
• The mailing address where the Certificate is to be sent
  ☐ Include payment of $25.00 payable to the Department of State

By Email:
☐ Use the current email-request instructions linked on the Department of State Certificate of Status page
☐ Include the signed credit-card/debit-card authorization form and the same required request information

4.4 Fees and Processing Times

[DRAFTER'S NOTE: The expedited processing fees are in addition to the standard $25 certificate fee. There is no online or telephone ordering option; use the current DOS page for submission and delivery details.]

4.5 What the Certificate Confirms

A New York Certificate of Status evidences the existence of the corporation or other business entity. Depending on the Department's records, it may also reflect a past-due biennial statement. Do not treat it as confirmation of tax compliance, payment of every fee, or satisfaction of every transaction covenant.

☐ The entity's name as it appears in Department of State records
☐ That the entity is formed or authorized to do business in New York
☐ The date of formation or authorization
☐ Any status qualification, including a past-due biennial statement, shown on the certificate

4.6 Tax Consent — Department of Taxation and Finance (DTF)

When Required

A written tax consent from the New York State Department of Taxation and Finance (DTF) is required for the corporate filings identified below:

☐ Surrender of authority by a foreign business corporation (N.Y. BCL 1310) — the foreign corporation must obtain consent from the DTF before filing its application for surrender of authority
☐ Voluntary dissolution of a domestic business corporation — DTF consent must accompany the Certificate of Dissolution under the current DOS instructions
☐ Other transactions as may be required by agreement or regulatory bodies

How to Obtain DTF Consent

☐ For a foreign business corporation surrender, follow DTF's current procedure: verify outstanding assessments and returns, file the final corporation-tax return, and submit Form TR-193.1 for applicable non-taxable periods
☐ For a domestic business corporation dissolution, follow the current DOS/DTF consent instructions linked below
☐ Attach the written DTF consent to the DOS filing; do not send the DOS certificate and filing fee to DTF

Issuing Authority

New York State Department of Taxation and Finance
W.A. Harriman Campus
Albany, NY 12227
Website: https://www.tax.ny.gov

4.7 Practice Tips for New York

• No Online or Telephone Ordering. Written Certificate of Status requests may currently be submitted by mail, hand delivery, or email.
• Expedited Processing. If the closing deadline is tight, use the 2-hour expedited processing option ($175 total). Fax the request for fastest turnaround.
• Biennial Statements. Business corporations and LLCs file every two years in the calendar month of the original formation or authorization filing. The current DOS fee is $9, and most entities may file online.
• Tax Dissolution. Tax Law § 203-a describes dissolution by proclamation for covered corporations with specified two-year reporting or tax delinquencies. A certificate of tax consent can annul those dissolution proceedings after the statutory conditions are met.
• New York City Considerations. If the Company does business in New York City, have tax counsel identify the City returns, liabilities, and any dissolution consent applicable to the entity and transaction.

PART V: COMPLIANCE CERTIFICATE — NEW YORK

COMPLIANCE CERTIFICATE

The undersigned, [________________________________], the duly elected and acting [Title] of [________________________________] (the "Company"), a New York [corporation / limited liability company], hereby certifies, on behalf of the Company and not in any individual capacity, as follows:

Section 1. New York State Tax Compliance

☐ The Company has timely filed all New York State tax returns and reports required to be filed, including applicable corporation-tax returns.

☐ The Company has paid all New York State taxes due and payable, except for taxes being contested in good faith for which adequate reserves have been established.

☐ If the Company is subject to N.Y. Tax Law § 203-a, it is not currently dissolved under an effective proclamation issued under that section.

☐ There are no outstanding New York State tax liens against the Company or its assets.

☐ No audit, examination, or investigation by the New York Department of Taxation and Finance is pending or, to the knowledge of the Company, threatened.

Section 2. New York City Tax Compliance (if applicable)

☐ The Company has timely filed all New York City tax returns identified by tax counsel as applicable to the Company.

☐ The Company has paid all New York City taxes due and payable.

[DRAFTER'S NOTE: Include this section only if the Company does business in New York City.]

Section 3. New York Sales Tax Compliance

☐ The Company holds all required Certificates of Authority for New York State and local sales tax collection.

☐ The Company has timely filed all New York sales and use tax returns and paid all obligations due.

Section 4. Federal Tax Compliance

☐ The Company has timely filed all federal tax returns and reports required to be filed.

☐ The Company has paid all federal taxes due and payable, except for taxes being contested in good faith for which adequate reserves have been established.

☐ There are no outstanding federal tax liens against the Company or its assets.

Section 5. Regulatory Compliance

☐ The Company holds all material licenses, permits, and authorizations necessary for the lawful conduct of its business in New York.

☐ All such licenses, permits, and authorizations are valid, in full force and effect, and not subject to any pending revocation, suspension, or modification.

☐ The Company is in compliance in all material respects with all applicable New York statutes, regulations, and orders.

Section 6. Employment Compliance

☐ The Company is in compliance in all material respects with the labor and employment representations, notice obligations, and disclosure schedules identified in the Agreement, except as stated on Schedule A.

Section 7. Environmental Compliance

☐ The Company is in compliance in all material respects with the environmental representations and applicable-law schedules identified in the Agreement, except as disclosed on Schedule A.

☐ There are no pending or, to the knowledge of the Company, threatened environmental claims with respect to the Company or its properties in New York.

IN WITNESS WHEREOF, the undersigned has duly executed this Certificate as of [__/__/____].

[________________________________]
(Name of Company)

By: ____________________________________
Name: [________________________________]
Title: [________________________________]

PART VI: BRING-DOWN QUALIFICATION STANDARDS

6.1 The Three Common Standards

Standard A: "True and Correct in All Respects"

• Buyer-favorable. Even minor inaccuracies cause the condition to fail.
• Typically used only for fundamental representations.

Standard B: "True and Correct in All Material Respects"

• Balanced. Most common standard for general representations.

Standard C: "MAE-Qualified"

• Seller-favorable. Only inaccuracies rising to a Material Adverse Effect prevent closing.

6.2 Double-Materiality Scrub

☐ Read through materiality qualifiers (more buyer-favorable)
☐ Preserve materiality qualifiers (more seller-favorable)

6.3 Common MAE Carve-Outs

☐ Changes in general economic or political conditions
☐ Changes affecting the Company's industry generally
☐ Changes in applicable law (including New York law) or GAAP
☐ Changes resulting from announcement or pendency of the transactions
☐ Changes resulting from actions taken at Buyer's request or with Buyer's consent
☐ Acts of war, terrorism, natural disasters, or pandemics
☐ Changes in the trading price or volume of the Company's securities
☐ Failure to meet projections or forecasts

6.4 Tiered Bring-Down Structure

PART VII: PRACTICE NOTES — NEW YORK-SPECIFIC

7.1 New York-Specific Considerations

• No Online or Telephone Ordering. New York currently accepts written Certificate of Status requests by mail, hand delivery, or email. Use the current DOS instructions and expedited processing if the closing date is approaching.
• Separate Status and Tax Checks. A DOS Certificate of Status evidences existence and may show a past-due biennial statement; it is not a tax-clearance certificate. Obtain DTF consent only when the filing or transaction requires it.
• Tax Dissolution. Tax Law § 203-a uses a dissolution-and-charter-forfeiture proclamation, not a generic "annulment" notice. Subdivision 7 separately describes how filing tax consent annuls the prior dissolution proceedings.
• DTF Consent for Foreign Corporations. Under N.Y. BCL 1310, a foreign corporation must obtain DTF consent before surrendering its authority to do business in New York. The DTF verifies the corporation is current on New York tax obligations before issuing consent.
• New York City Tax. If the Company does business in New York City, tax counsel should identify the entity-specific City tax and any consent required for dissolution.
• Biennial Statements. Domestic and foreign business corporations and LLCs file biennial statements every two years; a past-due filing is reflected on a Certificate of Status or status letter.
• Workforce Changes. If the transaction involves layoffs, relocation, or a closing, add a separately reviewed employment-law certificate keyed to the current federal, state, and local notice rules rather than relying on this general corporate form.

7.2 Timing Considerations

• Certificate of Status (Routine). Processing and delivery times vary; use the current DOS page and closing timetable.
• Certificate of Status (Expedited). 24-hour ($50 total), same-day ($100 total), or 2-hour ($175 total). Follow the current DOS request and payment instructions.
• DTF Consent. Processing time varies. Begin the required tax filings and consent request early enough for the closing timetable.

7.3 Bring-Down Certificate Preparation Checklist — New York

☐ Obtain fully executed Agreement and all amendments
☐ Identify the applicable bring-down standard
☐ Review all representations against current facts
☐ Prepare updated disclosure schedules if needed
☐ Confirm officer authorization via board resolutions
☐ Prepare secretary's certificate with incumbency, resolutions, and organizational documents
☐ Order Certificate of Status from NY Department of State by mail, hand delivery, or email ($25 routine; up to $175 total for 2-hour expedited)
☐ Verify biennial statements are filed and current
☐ Obtain DTF tax consent if the corporate filing requires it
☐ Verify NY franchise tax compliance
☐ Verify NYC tax compliance if the Company does business in NYC
☐ Obtain foreign qualification good standing certificates for other states
☐ Circulate drafts to opposing counsel
☐ Obtain final approval from certifying officer
☐ Execute and deliver at closing

SOURCES AND REFERENCES

• N.Y. Business Corporation Law § 715 — Officers
• N.Y. Business Corporation Law § 901 — Power of merger or consolidation
• N.Y. Tax Law § 203-a — Dissolution of delinquent business corporations
• New York Department of State — Certificate of Status
• New York Department of State — Biennial Statements
• New York Department of State — Certificate of Dissolution for Domestic Business Corporations
• New York Department of State — Certificate of Surrender of Authority for Foreign Business Corporations
• New York Department of Taxation and Finance — Consent for surrender of authority

This template is provided by ezel.ai for informational purposes only and does not constitute legal advice. Consult a qualified attorney licensed in New York before using this template.