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This excerpt taken from the NYNY 8-K filed Mar 24, 2009. Representations and Warranties of
Concord. Subject to the terms and conditions of this Agreement, Concord
hereby warrants and represents to Empire, knowing and intending that Empire is
relying hereon in entering into this Agreement and consummating the transactions
contemplated hereby, that:
(i) Due Formation, Existence,
Etc. Concord is duly formed, validly existing, and in good
standing, and has the requisite power and authority to own, lease, and operate
its properties as it is now owned, leased and operated. Concord has
full power and authority and has taken all limited partnership and/or limited
liability company action necessary to execute and deliver this Agreement and to
perform the obligations of Concord hereunder, and all limited partnership action
necessary to authorize the person(s) executing this Agreement on behalf of
Concord to execute and deliver this Agreement and all documents to be executed
by Concord pursuant to this Agreement on behalf of Concord and to perform the
obligations of Concord hereunder. This Agreement is a valid and
binding agreement of Concord enforceable against Concord in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles. The execution and
delivery by Concord of, and the performance and compliance by Concord with, the
terms and provisions of this Agreement do not (a) violate any term, condition or
provision of Concord’s organizational or governing documents; (b)
violate any judgment, order, injunction, decree, regulation or ruling of any
court or other Governmental Entity to which Concord is subject; or (c) require
any consent or approval under, result in any breach of or any loss of any
benefit under, give rise to other’s right of termination, vesting, amendment,
acceleration, or cancellation of, or cause a violation of any agreement,
promissory note, bond, mortgage, indenture, contract, lease, license, or any
other instrument of obligation to which Concord is a party or by which Concord
is bound, except that, in the case of clauses (b) or (c) above, for any breach,
violation, termination, default, acceleration, creation or change that would
not, individually or in the aggregate, reasonably be expected to have a material
adverse effect on Concord or its business.
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(ii) Consents and
Approval. No consent, waiver, authorization, permit, or
approval by any third party or governmental entity, which heretofore has not
been obtained, is required in connection with the execution and delivery by
Concord of this Agreement or the performance by Concord of the obligations to be
performed under this Agreement by Concord.
(iii) Litigation. There
is not now pending, nor to the best of Concord’s knowledge, has there been
threatened, any claims, causes of action or other litigation or proceedings
against or affecting Concord before or by any federal or state court,
commission, regulatory body, administrative agency or other governmental body,
domestic or foreign, wherein an unfavorable ruling, decision or finding may
reasonably be expected to have a material adverse effect on Concord or its
business, or would interfere with Concord’s ability to consummate the
transactions contemplated by this Agreement, or would affect the use and
development of the Concord Property, except possible claims for workers’
compensation, personal injury or property damage which are covered by insurance
maintained by Concord.
(iv) Brokers and
Finders. Neither Concord nor any of its officers, directors or
employees has employed any broker or finder or incurred any liability for any
brokerage fees, commissions or finders fees in connection with the transactions
contemplated in this Agreement.
(v) Taxes. Except
as would not, individually or in the aggregate, reasonably be expected to have a
material adverse effect on Concord or its business, (i) Concord and each of its
Subsidiaries have duly and timely (subject to any extensions permitted by
applicable law) filed all material Tax Returns required to be filed by any of
them, and all such Tax Returns are true, complete and accurate in all material
respects, (ii) Concord and each of its Subsidiaries have paid all material Taxes
that are required to be paid by any of them or that Concord or any of its
Subsidiaries are obligated to withhold from amounts owing to any employee,
creditor or third party, (iii) neither Concord nor any of its Subsidiaries has
waived any statute of limitations with respect to material Taxes or agreed to
any extension of time with respect to a material Tax assessment or deficiency,
(iv) there are no pending audits, examinations, investigations, deficiencies,
claims or other proceedings in respect of material Taxes relating to Concord or
any of its Subsidiaries, (v) neither Concord nor any of its Subsidiaries has
been treated as a partnership for Tax purposes since the date of its respective
formation, and (vi) none of Concord or any of its Subsidiaries has received or
has been subject to any written ruling relating to material Taxes or entered
into any written and legally binding agreement with any taxing authority
relating to material Taxes, except with respect to sewer taxes payable on the
Concord Property.
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(vi) Foreign
Person. Concord is not a “foreign person” as defined by
Internal Revenue Code Section 1445.
(vii) ERISA. Concord
is not an “employee benefit plan” within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974 (as amended, “ERISA”), a “plan,”
within the meaning of Section 4975 of the Internal Revenue Code of 1986, as
amended, or an entity deemed to hold “plan assets” within the meaning of 29
C.F.R. Sec. 2510.3-101 of any such employee benefit plan or plans.
Empire
acknowledges and agrees that, except as set forth in this Agreement, Concord has
not made, does not make and specifically negates and disclaims any
representations, warranties, promises, covenants, agreements or guaranties of
any kind or character whatsoever, whether express or implied, oral or written,
past or present, of, as to, concerning or with respect to Concord or the Concord
Property. Additionally, no Person acting on behalf of Concord is
authorized to make, and by execution hereof Empire acknowledges that no person
has made, on behalf of Concord, any representation, agreement, statement,
warranty, guaranty or promise regarding Concord or the Concord Property or the
transactions contemplated herein other than the representations, agreements,
statements, warranties, guaranties and promises contained in this Agreement; and
no such other representation, warranty, agreement, guaranty, statement or
promise, if any, made by any person acting on behalf of Concord shall be valid
or binding upon Concord unless specifically set forth herein.
Except as
otherwise provided in this Agreement, no representations, warranties, covenants,
indemnifications or other obligations of Concord set forth in this Agreement
shall survive the Closing beyond a period of twelve (12) months from the date of
the Closing, except to the extent that Empire shall have delivered notice of a
breach on or before such twelve (12) month anniversary.
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