But I agree with you that it’s more likely that the disinterested reader would conclude that the seller is saying at signing that the representations are true at signing and will be true at closing.

The question is whether it matters which meaning applies. Either way, the seller is representing—whether at signing or at closing—as to accuracy of the representations at closing. I don’t see any reason why a court would hold that inaccuracy in any such representation would be inadequate to support a claim for indemnification or any other remedy that would otherwise be available.

Art: I’m comfortable with represents, for reasons I explain at length in MSCD starting at 12.285.

Here’s a thought to supplement my post:

Perhaps the most rigorous way to have the seller make representations at closing would be (1) to specify that it’s a condition to closing that the seller make the representations again at closing and (2) to have the seller, in the officer’s certificate, make the representations again at closing.

But that’s not the current practice. Given that the corporate bar has a limited appetite for novelty, I thought it best to offer a solution that requires one simple fix rather than the more invasive surgery required by the ideal fix. Bear in mind also that my simple fix is already in use in a substantial proportion of M&A contracts.

And here’s another reason why I’m not comfortable using an officer’s certificate as a basis for seeking indemnification due to inaccuracy in the seller’s representations at closing: An officer’s certificate will simply state that the bringdown condition has been satisfied or will track its wording. But the bringdown condition often applies a different materiality standard than do the representations themselves. If that’s the case in a given contract, then even if a court were to consider that the seller is in the officer’s certificate making representations as of the closing, those closing representations would, as regards materiality standards, be different from those made at signing.

Ken

“The Seller warrants to the Buyer as follows, as of the date of this agreement and as of the Closing:”

“Warrants” may be more accurate in this case in any event. If a representation is best described as a statement made by one party that induces the other party to enter the contract, then I always thought it odd to call them “representations” when actually included in the contract itself. Admittedly this is being quite pedantic, as the usage in contracts is so common – I mainly suggested “warrants” here because it more naturally covers a future fact.

A representation speaks as of the time that it is made. The Seller can, therefore, represent the accuracy of a present or historical fact at the time the agreement is signed. But could the Seller make a representation at signing as to a future circumstance at closing? Does the wording cause the Seller to make the same representation at closing – even without an contemporaneous bring down?

It seems that such a lead-in might be interpreted as: (1) a covenant that the Seller will at the time of closing represent that the circumstances that were true at signing continue to be true (i.e., a bring down commitment); (2) a warranty that the circumstances will be true at the closing; or (3) a covenant that the Seller will cause the circumstances to be true at the closing.

Following on that covenant issue, it is also possible to simply have the warranties made as of signing with a “bringdown” certificate, as you describe. But, more importantly, you put in covenants that obligate the company to maintain the status that allows the various warranties to be true. So for each warranty you have a corresponding covenant that obligates the company to maintain that status until closing and to give buyer notice in change of status, etc. Then the termination rights and indemnity can be exercised for a warranty if it was a pre-signing issue or for breach of covenant if it happened in the interim.