Common use of Representations and Warranties of TPG Clause in Contracts

Representations and Warranties of TPG. TPG hereby makes the following representations and warranties to CalSTRS and CNP Investor as of the date hereof, the Mezzanine Loan Acquisition Date and the Conversion Date as if such representations and warranties were made on and as of that date: 4.1.1 Each of the TPG Parties has the power and authority to enter into and to carry out the terms and provisions of this Agreement and the Conversion Documents, as applicable to each of them. 4.1.2 This Agreement constitutes, and the Conversion Documents when executed will constitute, the legal, valid and binding agreement of each of the TPG Parties, as applicable to each of them, enforceable in accordance with their respective terms, except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors’ rights and by the availability of injunctive relief, specific performance and other equitable remedies. 4.1.3 The execution and delivery of this Agreement and all of the Conversion Documents, the consummation of the transactions and the performance of the obligations contemplated hereby and thereby by each of the TPG Parties, as applicable, will not conflict with, or result in a violation of or default under, any provision of any governing instrument applicable to any of the TPG Parties, or any agreement or instrument to which any of the TPG Parties is a party or by which it or any of its properties is bound, assuming that any required consents of the lenders are obtained in connection with the acquisition and Conversion of the Mezzanine Loans, or any permit, franchise, judgment, decree, statute, law, rule or regulation applicable to any of the TPG Parties or any of the properties of the TPG Parties. 4.1.4 To TPG’s actual current knowledge, the outstanding principal balance of each of the Mezzanine Loans, the Mortgage Loan and the Picerne/Kings Capital Loan as of February 14, 2010 is as set forth on Exhibit “I” hereto. 4.1.5 To TPG’s actual current knowledge, the balance of the Mortgage Lender Reserve Accounts as of February 14, 2010 is as set forth in Exhibit “I” hereto. 4.1.6 To TPG’s actual current knowledge, the Net Operating Cash as of February 14, 2010 is as set forth in Exhibit “I” hereto. 4.1.7 To TPG’s actual current knowledge, the aggregate accrued and unpaid interest with respect to each of the Mezzanine Loans, the Mortgage Loan and the Picerne/Kings Capital Loan as of February 14, 2010 is set forth on Exhibit “I” attached hereto. 4.1.8 To TPG’s actual current knowledge, there are no material liabilities of TPG Plaza Investments or its subsidiaries other than as shown on Exhibit “I” attached hereto and other than any liabilities accounted for in the Net Operating Cash. 4.1.9 To TPG’s actual current knowledge, there exists no Event of Default nor any event or default which, but for the passage of time and/or the giving of notice, would constitute an Event of Default with respect to any of the Mezzanine Loans, the Mortgage Loan or the Picerne/Kings Capital Loan, excluding any default that may be alleged arising from the proposed acquisition or Conversion of the Mezzanine Loans. 4.1.10 TPG, for itself and on behalf of the other TPG Parties acknowledges that CalSTRS is a unit of the California State and Consumer Services Agency established pursuant to Title I, Division 1, Parts 13 and 14 of the California Education Code, Sections 22000, et seq., as amended (the “Education Code”). As a result, TPG, for itself and on behalf of the TPG Parties, acknowledges that CalSTRS is prohibited from engaging in certain transactions with or for the benefit of an “employer”, “employing agency”, “member”, “beneficiary” or “participant” (as those terms are defined or used in the Education Code). In addition, TPG, for itself and on behalf of the TPG Parties, acknowledges that CalSTRS may be subject to certain restrictions and requirements under the Internal Revenue Code, 26 U.S.C. Section 1 et seq. (the “Code”). Accordingly, TPG represents and warrants to CalSTRS that (1) none of the TPG Parties is an employer, employing agency, member, beneficiary or participant; (2) none of the TPG Parties has made any contribution or contributions to CalSTRS; (3) neither an employer, employing agency, member, beneficiary nor participant, nor any person who has made any contribution to CalSTRS, nor any combination thereof, is related to any of the TPG Parties by any relationship described in Section 267(b) of the Code; (4) neither CalSTRS, Xxxxx X Xxxxxxxxxx & Associates, their affiliates, related entities, agents, officers, directors or employees, nor any CalSTRS board member, employee or internal investment contractor (collectively, “CalSTRS Affiliates”) has received or will receive, directly or indirectly, any payment, consideration or other benefit from, nor does any CalSTRS Affiliate have any agreement or arrangement with, any of the TPG Parties or any person or entity affiliated with any of them, relating to the transactions contemplated by this Agreement except as expressly set forth in this Agreement; and (5) except for publicly traded shares of stock or other publicly traded ownership interests, no CalSTRS Affiliate has any direct or indirect ownership interest in TPG or any person or entity affiliated with TPG. 4.1.11 To TPG’s actual current knowledge, (1) none of the Mezzanine Lenders is an employer, employing agency, member, beneficiary or participant; (2) none of the Mezzanine Lenders has made any contribution or contributions to CNP Investor or CalSTRS; (3) neither an employer, employing agency, member, beneficiary nor participant, nor any person who has made any contribution to CalSTRS or CNP Investor, nor any combination thereof, is related to any Mezzanine Lender by any relationship described in Section 267(b) of the Code; (4) neither CalSTRS, Xxxxxx Properties Group, Inc., TPG/CalSTRS, Guarantor, the Title Holding Subsidiaries, CNP Investor, their affiliates, related entities, agents, officers, directors or employees, nor any CalSTRS board member, employee or internal investment contractor (collectively “CalSTRS Loan Purchase Related Parties”) has received or will receive, directly or indirectly, any payment, consideration or other benefit from, nor does any CalSTRS Loan Purchase Related Party have any agreement or arrangement with, any Mezzanine Lender or any person or entity affiliated with a Mezzanine Lender, relating to the Mezzanine Loan purchase transactions except as expressly set forth in this Agreement; and (5) except for publicly traded shares of stock or other publicly traded ownership interests, no CalSTRS Loan Purchase Related Party has any direct or indirect ownership interest in any Mezzanine Lender or any person or entity affiliated with any Mezzanine Lender. With respect to the representations and warranties set forth in Sections 4.1.5 through 4.1.8, TPG shall execute and deliver to CalSTRS a separate certificate setting forth the amounts applicable as of the date when such representations and warranties are remade as of the Mezzanine Loan Acquisition Date and the Conversion Date.

Representations and Warranties of TPG. TPG hereby makes the following representations and warranties to CalSTRS and CNP Investor as of the date hereof, the Mezzanine Loan Acquisition Date and the Conversion Date as if such representations and warranties were made on and as of that date: 4.1.1 Each of the TPG Parties has the power and authority to enter into and to carry out the terms and provisions of this Agreement and the Conversion Documents, as applicable to each of them. 4.1.2 This Agreement constitutes, and the Conversion Documents when executed will constitute, the legal, valid and binding agreement of each of the TPG Parties, as applicable to each of them, enforceable in accordance with their respective terms, except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors’ rights and by the availability of injunctive relief, specific performance and other equitable remedies. 4.1.3 The execution and delivery of this Agreement and all of the Conversion Documents, the consummation of the transactions and the performance of the obligations contemplated hereby and thereby by each of the TPG Parties, as applicable, will not conflict with, or result in a violation of or default under, any provision of any governing instrument applicable to any of the TPG Parties, or any agreement or instrument to which any of the TPG Parties is a party or by which it or any of its properties is bound, assuming that any required consents of the lenders are obtained in connection with the acquisition and Conversion of the Mezzanine Loans, or any permit, franchise, judgment, decree, statute, law, rule or regulation applicable to any of the TPG Parties or any of the properties of the TPG Parties. 4.1.4 TPGA is the owner of 100% of the membership interests in TPG Plaza Investments free and clear of any lien, encumbrance or security interest, and, until the consummation of the Conversion or earlier termination of this Agreement, TPGA shall not transfer any membership interest in TPG Plaza Investments. 4.1.5 To TPG’s actual current knowledge, the outstanding principal balance of each of the Mezzanine Loans, the Mortgage Loan and the Picerne/Kings Capital Loan as of February 14, 2010 is as set forth on Exhibit “I” hereto. 4.1.5 4.1.6 To TPG’s actual current knowledge, the balance of the Mortgage Lender Reserve Accounts as of February 14, 2010 is as set forth in Exhibit “I” hereto. 4.1.6 4.1.7 To TPG’s actual current knowledge, the Net Operating Cash as of February 14, 2010 is as set forth in Exhibit “I” hereto. 4.1.7 4.1.8 To TPG’s actual current knowledge, the aggregate accrued and unpaid interest with respect to each of the Mezzanine Loans, the Mortgage Loan and the Picerne/Kings Capital Loan as of February 14, 2010 is set forth on Exhibit “I” attached hereto. 4.1.8 4.1.9 To TPG’s actual current knowledge, there are no material liabilities of TPG Plaza Investments or its subsidiaries other than as shown on Exhibit “I” attached hereto and other than any liabilities accounted for in the Net Operating Cash. 4.1.9 4.1.10 To TPG’s actual current knowledge, there exists no Event of Default nor any event or default which, but for the passage of time and/or the giving of notice, would constitute an Event of Default with respect to any of the Mezzanine Loans, the Mortgage Loan or the Picerne/Kings Capital Loan, excluding any default that may be alleged arising from the proposed acquisition or Conversion of the Mezzanine LoansLoans by CNP Investor. 4.1.10 4.1.11 TPG, for itself and on behalf of the other TPG Parties acknowledges that CalSTRS is a unit of the California State and Consumer Services Agency established pursuant to Title I, Division 1, Parts 13 and 14 of the California Education Code, Sections 22000, et seq., as amended (the “Education Code”). As a result, TPG, for itself and on behalf of the TPG Parties, acknowledges that CalSTRS is prohibited from engaging in certain transactions with or for the benefit of an “employer”, “employing agency”, “member”, “beneficiary” or “participant” (as those terms are defined or used in the Education Code). In addition, TPG, for itself and on behalf of the TPG Parties, acknowledges that CalSTRS may be subject to certain restrictions and requirements under the Internal Revenue Code, 26 U.S.C. Section 1 et seq. (the “Code”). Accordingly, TPG represents and warrants to CalSTRS that (1) none of the TPG Parties is an employer, employing agency, member, beneficiary or participant; (2) none of the TPG Parties has made any contribution or contributions to CalSTRS; (3) neither an employer, employing agency, member, beneficiary nor participant, nor any person who has made any contribution to CalSTRS, nor any combination thereof, is related to any of the TPG Parties by any relationship described in Section 267(b) of the Code; (4) neither CalSTRS, Xxxxx X Xxxxxxxxxx & Associates, their affiliates, related entities, agents, officers, directors or employees, nor any CalSTRS board member, employee or internal investment contractor (collectively, “CalSTRS Affiliates”) has received or will receive, directly or indirectly, any payment, consideration or other benefit from, nor does any CalSTRS Affiliate have any agreement or arrangement with, any of the TPG Parties or any person or entity affiliated with any of them, relating to the transactions contemplated by this Agreement except as expressly set forth in this Agreement; and (5) except for publicly traded shares of stock or other publicly traded ownership interests, no CalSTRS Affiliate has any direct or indirect ownership interest in TPG or any person or entity affiliated with TPG. 4.1.11 4.1.12 To TPG’s actual current knowledge, (1) none of the Mezzanine Lenders is an employer, employing agency, member, beneficiary or participant; (2) none of the Mezzanine Lenders has made any contribution or contributions to CNP Investor or CalSTRS; (3) neither an employer, employing agency, member, beneficiary nor participant, nor any person who has made any contribution to CalSTRS or CNP Investor, nor any combination thereof, is related to any Mezzanine Lender by any relationship described in Section 267(b) of the Code; (4) neither CalSTRS, Xxxxxx Properties Group, Inc., TPG/CalSTRS, Guarantor, the Title Holding Subsidiaries, CNP Investor, their affiliates, related entities, agents, officers, directors or employees, nor any CalSTRS board member, employee or internal investment contractor (collectively “CalSTRS Loan Purchase Related Parties”) has received or will receive, directly or indirectly, any payment, consideration or other benefit from, nor does any CalSTRS Loan Purchase Related Party have any agreement or arrangement with, any Mezzanine Lender or any person or entity affiliated with a Mezzanine Lender, relating to the Mezzanine Loan purchase transactions except as expressly set forth in this Agreement; and (5) except for publicly traded shares of stock or other publicly traded ownership interests, no CalSTRS Loan Purchase Related Party has any direct or indirect ownership interest in any Mezzanine Lender or any person or entity affiliated with any Mezzanine Lender. With respect to the representations and warranties set forth in Sections 4.1.5 through 4.1.8, TPG shall execute and deliver to CalSTRS a separate certificate setting forth the amounts applicable as of the date when such representations and warranties are remade as of the Mezzanine Loan Acquisition Date and the Conversion Date.