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 — Officers. Every corporation shall have a president, one or more vice-presidents, a secretary, and a treasurer. The board may also appoint such other officers as it deems appropriate.
• N.Y. BCL 717 — Duty of Officers. An officer shall discharge duties in good faith and with that degree of care which an ordinarily prudent person in a like position would use under similar circumstances. A person who so performs duties shall have no liability by reason of being or having been an officer of the corporation.
• N.Y. BCL 901-909 — Merger or Consolidation of domestic corporations.
• N.Y. BCL 1304 — Application for Authority for foreign corporations. Requires a certificate of existence from the home state, dated within one year.

1.3 New York-Specific Closing Considerations

New York transactions have notable requirements:

• Tax Clearance. For certain transactions (particularly dissolution and surrender of authority by a foreign corporation), a tax clearance from the New York State Department of Taxation and Finance (DTF) may be required.
• 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. New York domestic corporations must file a biennial statement (formerly known as a biennial report) with the Department of State. Ensure compliance before ordering a 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 Liability. Under N.Y. BCL 717, an officer who discharges duties in good faith and with due care has no liability. Conversely, knowingly false certifications may give rise to personal liability.
• Proclamation of Annulment. The New York Secretary of State may proclaim the annulment of a corporation's charter for failure to pay franchise taxes. Verify the Company has not been annulled.

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 Company is in good standing with the New York Department of State, Division of Corporations. The Company has filed all required biennial statements and paid all fees owed to the Department of State. The Company's charter has not been annulled by proclamation of the Secretary of State for failure to pay franchise taxes.

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 not received any notice of annulment or pending annulment from the New York Secretary of State for failure to pay franchise taxes. The Company has filed all required New York franchise tax returns and has paid all franchise taxes due and payable.

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 is a duly elected and acting officer of the Company, holding the office indicated below, and has been duly authorized by the [Board of Directors / Members / Managers] of the Company to execute and deliver this Certificate on behalf of the Company pursuant to N.Y. BCL 715.

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, confirming the active status of the Company.

Section 5. Registered Agent / Process Agent

The Company's registered agent for service of process, as designated with the New York Department of State, is:

Name/Address: [________________________________]

The agent for service of process information 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. The Company's charter has not been annulled by proclamation of the Secretary of State.

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: As of the date of this template, Certificates of Status cannot be ordered online, by email, or by telephone. Written requests must be submitted by mail or fax.

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 Fax:
☐ Fax the written request with the same information as above
☐ Include credit card payment information

4.4 Fees and Processing Times

[DRAFTER'S NOTE: The expedited processing fees are in addition to the standard $25 certificate fee. Plan ahead — routine processing can take several business days, and there is no online ordering option.]

4.5 What the Certificate Confirms

A New York Certificate of Status confirms:

☐ 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
☐ That the entity is in active/good standing with the Department of State
☐ That required filings have been made

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

When Required

A tax clearance (or "consent") from the New York State Department of Taxation and Finance (DTF) is required in certain situations:

☐ 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
☐ Dissolution of a domestic corporation — voluntary dissolution may require DTF consent
☐ Other transactions as may be required by agreement or regulatory bodies

How to Obtain DTF Consent

☐ Contact the NYS Department of Taxation and Finance Call Center at (518) 485-6027
☐ Submit the appropriate application form
☐ DTF will verify the entity's tax compliance status
☐ Upon confirmation of compliance, DTF will issue the consent/clearance

Issuing Authority

New York State Department of Taxation and Finance
W.A. Harriman Campus
Albany, NY 12227
Phone: (518) 485-6027
Website: https://www.tax.ny.gov

4.7 Practice Tips for New York

• No Online Certificate Ordering. Unlike many states, New York does not allow online ordering of Certificates of Status. Written requests must be submitted by mail or fax. Plan for processing time.
• 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. New York domestic corporations must file a biennial statement with the Department of State. Verify compliance before requesting a certificate.
• Franchise Tax Annulment. The Secretary of State may proclaim the annulment of a corporation's charter for failure to pay franchise taxes. Check the entity's status with both the Department of State and the DTF.
• New York City Considerations. Entities doing business in New York City may also be subject to the NYC General Corporation Tax (NYC Admin. Code 11-600 et seq.) or the NYC Unincorporated Business Tax. Verify NYC tax compliance.

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 corporate franchise tax returns (N.Y. Tax Law Article 9-A) as applicable.

☐ 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.

☐ The Company's charter has not been annulled by proclamation of the Secretary of State for failure to pay franchise taxes.

☐ 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 required to be filed, including General Corporation Tax returns (NYC Admin. Code 11-600 et seq.) and/or Unincorporated Business Tax returns as applicable.

☐ 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 New York labor and employment laws, including the New York Labor Law, the New York State Human Rights Law (N.Y. Exec. Law 290 et seq.), and the New York State Worker Adjustment and Retraining Notification Act (N.Y. Lab. Law 860 et seq.).

☐ The Company is in compliance with the New York Wage Theft Prevention Act requirements as applicable.

Section 7. Environmental Compliance

☐ The Company is in compliance in all material respects with all applicable New York and federal environmental laws, including the New York Environmental Conservation Law (N.Y. ECL).

☐ 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 Certificate Ordering. This is a critical planning consideration. New York does not offer online ordering of Certificates of Status. Written requests must be submitted by mail or fax. Use expedited processing if the closing date is approaching.
• Two-Agency Verification. Verify status with both the Department of State and the Department of Taxation and Finance. A corporation's charter may be annulled for failure to pay franchise taxes even while it appears active with the Department of State.
• Franchise Tax Annulment. The New York Secretary of State may proclaim the annulment (dissolution) of a corporation's charter for failure to pay franchise taxes (N.Y. Tax Law 203-a). Acts taken after annulment may be void.
• 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. Entities doing business in New York City face additional tax obligations. The NYC General Corporation Tax (for C corporations) and the NYC Unincorporated Business Tax (for partnerships and sole proprietors) are separate from state-level taxes.
• Biennial Statements. New York domestic corporations must file biennial statements with the Department of State. Confirm compliance before ordering a Certificate of Status.
• New York WARN Act. New York has its own WARN Act (N.Y. Lab. Law 860 et seq.) with broader coverage than the federal WARN Act (90-day notice required; applies to employers with 50 or more employees). Consider WARN Act compliance in transactions involving workforce changes.

7.2 Timing Considerations

• Certificate of Status (Routine). Several business days processing. Allow at least 1 to 2 weeks including mailing time.
• Certificate of Status (Expedited). 24-hour ($50 total), same-day ($100 total), or 2-hour ($175 total). Fax requests for fastest turnaround.
• DTF Consent. Processing time varies. Allow several weeks for DTF review and consent.
• Pre-Closing Review. Begin preparation at least 10 to 15 business days before the anticipated closing date due to the lack of online ordering.

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 or fax ($25 routine; up to $175 for 2-hour expedited)
☐ Verify biennial statements are filed and current
☐ Obtain DTF consent or tax clearance if required
☐ 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

• New York Business Corporation Law (BCL) — N.Y. BSC
• N.Y. BCL 715 — Officers
• N.Y. BCL 717 — Duty of Officers
• N.Y. BCL 901-909 — Merger or Consolidation
• N.Y. BCL 1304 — Application for Authority (Foreign Corporations)
• N.Y. BCL 1310 — Surrender of Authority (Foreign Corporations)
• N.Y. Tax Law 203-a — Franchise Tax Annulment
• N.Y. Tax Law Article 27 — Department of Taxation and Finance — Tax Clearance
• New York Department of State — Division of Corporations: https://dos.ny.gov
• Certificate of Status Information: https://dos.ny.gov/certificate-status
• New York Department of Taxation and Finance: https://www.tax.ny.gov
• DTF Consent for Foreign Corporations: https://www.tax.ny.gov/bus/doingbus/tr199.htm

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.