Common use of Absence of Defaults and Conflicts Clause in Contracts

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their Subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws or similar organizational documents, as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any Subsidiary is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any Subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries with their respective obligations hereunder have been duly authorized by all necessary action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any Subsidiary pursuant to, the Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, or bylaws, as the case may be, of the Company, the Operating Partnership or any Subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any Subsidiary or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any Subsidiary.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor any of their its Subsidiaries is in violation of its declaration of trustcharter, partnership agreement, charterlimited liability company agreement, bylaws by-laws or similar other organizational documents, as the case may be, documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary is subject (collectively, “Agreements and Instruments”) ), except for such defaults that would not result in a Material Adverse EffectEffect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement Statement, the Disclosure Package and the Final Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the Prospectus therein under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse EffectEffect or that are otherwise specifically disclosed in the Registration Statement, nor the Final Prospectus and the Disclosure Package); (b) do not and will such action not result in any violation of the provisions of the declaration of trustcharter, partnership agreement, charterlimited liability company agreement, by-laws or bylaws, as the case may be, other organizational documents of the Company, the Operating Partnership Company or any Subsidiary or Subsidiary; and (c) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary or any of their assets, properties or operationsoperations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiary.

Absence of Defaults and Conflicts. None of the CompanySimon Entities or, to the knowledge of the Operating Partnership Partnership, any joint ventures or any of their Subsidiaries partnerships in which Simon Entities have an equity interest (“Property Partnerships”) is in violation of its declaration of trust, partnership agreement, charter, bylaws by-laws, certificate of limited partnership or similar partnership agreement or other organizational documentsdocument, as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any Subsidiary each entity is a party or by which it or any of them may be bound, or to which any of the its property or assets or any Property may be bound or subject (collectively, “Agreements and Instruments”), except for such violations (other than with respect to the charter, by-laws, partnership agreement, or other organizational document of the Company, the Operating Partnership or any Subsidiary is subject (collectively, “Agreements and Instruments”significant subsidiary) except for such or defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement Agreement, the Notes, the Indenture and any other agreement or instrument entered into or issued or to be entered into or issued by the Company or the Operating Partnership in connection with the transactions contemplated hereby or thereby or in the Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements Notes and the use of the Net Proceeds proceeds from the sale of the Securities Notes as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries with their respective its obligations hereunder and thereunder have been duly authorized by all necessary action action, and do not and will shall not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance Lien upon any property assets, properties or assets operations of the Company, the Operating Partnership or any Subsidiary other Simon Entity or any Property Partnership pursuant to, the any Agreements and Instruments, except for such conflicts, breaches, defaults or defaults, Repayment Events or liensLiens, charges or encumbrances that that, singly or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, nor will shall such action result in any violation of the provisions of the declaration OP Partnership Agreement or certificate of trust, limited partnership agreement, charter, or bylaws, as the case may be, of the Company, the Operating Partnership or the organizational documents of any Subsidiary other Simon Entity or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the CompanyOperating Partnership, the Operating Partnership any other Simon Entity or any Subsidiary Property Partnership or any of their assets, properties or operations, except for such violations (other than with respect to the charter, by-laws, partnership agreement, or other organizational document of the Company, the Operating Partnership or any significant subsidiary) that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a material portion of such indebtedness by any Simon Entity or, to the Company, knowledge of the Operating Partnership or Partnership, any SubsidiaryProperty Partnership.

Absence of Defaults and Conflicts. None of the CompanyTransaction Entities, the Operating Partnership or nor any of their Subsidiaries (i) is in violation of its declaration of trust, partnership agreement, charter, bylaws by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational documents, as the case may be, document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Company, the Operating Partnership Transaction Entities or any Subsidiary of their Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property Properties or any other properties or assets of the Company, the Operating Partnership Transaction Entities or any Subsidiary of their Subsidiaries is subject (collectively, “Agreements and Instruments”) ), except for such defaults that would not result reasonably be expected to result, singly or in the aggregate, in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement and the other Operative Documents and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or Shares and the Alternative Distribution Agreements Private Placement Shares and the use of the Net Proceeds proceeds from the sale of the Securities Shares as described in the General Disclosure Package and Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Transaction Entities with their respective obligations hereunder and thereunder have been duly authorized by all necessary action corporate or limited partnership action, as applicable, and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Transaction Entities or any Subsidiary pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result reasonably be expected to result, singly or in the aggregate, in a Material Adverse Effect, nor will ). No such action will result in any violation of (A) the provisions of the declaration of trust, partnership agreement, charter, by-laws, certificate of limited partnership, agreement of limited partnership or bylaws, as the case may be, similar organizational document of any of the Company, the Operating Partnership Transaction Entities or any Subsidiary of their Subsidiaries or of (B) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Transaction Entities or any Subsidiary of their Subsidiaries or any of their assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Transaction Entities or any Subsidiaryof their Subsidiaries.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their Subsidiaries BIP Entities is in violation of its declaration of trust, limited partnership agreement, charterarticles, bylaws charter or similar organizational documents, as the case may be, by laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease lease, license or other agreement or instrument to which any of the Company, the Operating Partnership or any Subsidiary BIP Entities is a party or by which it or any of them may be bound, or to which any of the BIP Entities or the property or assets of any of the Company, the Operating Partnership or any Subsidiary BIP Entities is subject (collectively, “Agreements and Instruments”) ), except for such defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein therein and in the Registration Statement Disclosure Package, the U.S. Prospectus and the Supplemented Canadian Prospectus (including the issuance authorization, issuance, sale and sale delivery of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements Units and Additional Units and the use of the Net Proceeds proceeds from the sale of the Securities Units and the Additional Units as described in the Disclosure Package, the U.S. Prospectus and the Supplemented Canadian Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries BIP with their respective its obligations hereunder have has been duly authorized by all necessary action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of any of the Company, the Operating Partnership or any Subsidiary BIP Entities pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of or conflict with the provisions of the declaration of trust, limited partnership agreement, charter, charter or bylaws, as the case may be, by laws of any of the CompanyBIP Entities, the Operating Partnership resolutions of the general partner, unitholders, shareholders, directors or any Subsidiary committee of directors of any of the BIP Entities or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or instrumentality, court, domestic or foreign, or stock exchange having jurisdiction over any of the Company, the Operating Partnership or any Subsidiary BIP Entities or any of their assets, properties or operationsoperations (except for such violations or conflicts that would not result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by any of the Company, the Operating Partnership or any SubsidiaryBIP Entities.

Absence of Defaults and Conflicts. None Neither the Company nor any of the Company, the Operating Partnership or any of their Subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws by-laws or similar other organizational documents. Further, as neither the case may be, or Company nor any of the Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary action and thereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries pursuant to, the Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, by-laws or bylaws, as the case may be, other organizational documents of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof the Subsidiaries.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or nor any of their Subsidiaries respective subsidiaries is (i) in violation of its declaration Organizational Documents (as defined below) or (ii) in default, and no event has occurred that, with notice or lapse of trusttime or both, partnership agreementwould constitute such a default, charter, bylaws or similar organizational documents, as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contractCompany Document (as defined below), indentureexcept, mortgagein the case of clause (ii) above, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any Subsidiary is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any Subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement Agreement, the issuance of Securities and the consummation of the other transactions contemplated herein and therein and in the Registration Statement Statement, the Disclosure Package and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by each of the Company, Company and the Operating Partnership and their Subsidiaries with their respective its obligations hereunder have been duly authorized by all necessary action and under this Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) underunder any Company Documents, or result in the creation or imposition of any lien, charge or encumbrance Lien upon any property or assets of the Company, the Operating Partnership or any Subsidiary pursuant to, the Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effectof their respective subsidiaries, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, or bylaws, as the case may be, Organizational Documents of the Company, the Operating Partnership or any Subsidiary of their respective subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries or any of their respective assets, properties or operations. As The term “Company Documents” as used herein, a “Repayment Event” herein means any event contracts, indentures, guarantees, mortgages, deeds of trust, loan or condition which gives the holder credit agreements, letter of any notecredit facilities, debenture security agreements, bonds, notes, debentures, evidences of indebtedness, leases or other evidence of indebtedness (instruments or any person acting on such holder’s behalf) the right agreements to require the repurchase, redemption or repayment of all or a portion of such indebtedness by which the Company, the Operating Partnership or any Subsidiaryof their respective subsidiaries is a party or by which the Company, the Operating Partnership or any of their respective subsidiaries is bound or to which any of the property or assets of the Company, the Operating Partnership or any of their respective subsidiaries is subject. The term “Organizational Documents” as used herein means (a) in the case of a corporation, its charter and bylaws; (b) in the case of a limited or general partnership, its partnership certificate, certificate of formation or similar organizational document and its partnership agreement; (c) in the case of a limited liability company, its articles of organization, certificate of formation or similar organizational documents and its operating agreement, limited liability company agreement, membership agreement or other similar agreement; (d) in the case of a trust, its certificate of trust, certificate of formation or similar organizational document and its trust agreement or other similar agreement; and (e) in the case of any other entity, the organizational and governing documents of such entity.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership Company nor any Significant Subsidiary is (i) in breach or any of their Subsidiaries is in violation of its declaration certificate or articles of trust, partnership agreementincorporation, charter, bylaws bylaws, limited liability company agreement, certificate or agreement of limited or general partnership, memorandum and articles of association, or other similar organizational documents, as the case may be, of such entity, (ii) in breach of or in default (or, with the giving of notice or lapse of time or both, would be in the performance or observance of default) (“Default”) under any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, deed of trust, note, contract, franchise, lease or other agreement agreement, obligation, condition, covenant or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its Significant Subsidiaries is a party or by which it or any of them may be bound, bound or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of its Significant Subsidiaries is subject (collectivelyeach, an “Agreements Existing Instrument”), or (iii) in violation of any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its Significant Subsidiaries or any of their properties, as applicable, except, with respect to clauses (ii) and Instruments”(iii) except only, for such defaults breaches, violations or Defaults that would not result not, individually or in the aggregate, have a Material Adverse Effect; and the . The Company’s execution, delivery and performance of this Agreement and the each Terms Agreement and consummation of the transactions contemplated herein and in hereby or thereby or by the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements Shares and the use of the Net Proceeds proceeds from the sale of the Securities Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries with their respective obligations hereunder (i) have been duly authorized by all necessary action and do not corporate action, and will notnot result in any breach or violation of the certificate or articles of incorporation, whether with charter, bylaws, limited liability company agreement, certificate or without agreement of limited or general partnership, memorandum and articles of association, or other similar organizational documents, as the giving case may be, of notice the Company or passage any of time or bothits Significant Subsidiaries, (ii) will not conflict with or constitute a breach of, or default Default or a Debt Repayment Triggering Event (as defined below) under, or result in the creation or imposition of any lien, charge charge, claim or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of its Significant Subsidiaries pursuant to, or require the Agreements consent of any other party to, any Existing Instrument, and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would (iii) will not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trustany statute, partnership agreement, charter, or bylaws, as the case may be, of the Company, the Operating Partnership or any Subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ order or decree applicable to the Company or any of its Significant Subsidiaries of any government, government instrumentality or court, domestic regulatory body, administrative agency, governmental body, arbitrator or foreign, other authority having jurisdiction over the Company, the Operating Partnership or any Subsidiary Company or any of its Significant Subsidiaries or any of its or their assetsproperties, properties as applicable, except, with respect to clauses (ii) and (iii) only, for such conflicts, breaches, Defaults, Debt Repayment Triggering Events or operationsviolations that would not, individually or in the aggregate, have a Material Adverse Effect. As used herein, a “Debt Repayment Triggering Event” means any event or condition which gives gives, or with the giving of notice or lapse of time or both would give, the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) ), issued by the Company, the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof its Significant Subsidiaries.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor any of their its Subsidiaries is in violation of its declaration of trustcharter, partnership agreement, charterlimited liability company agreement, bylaws by-laws or similar other organizational documents, as the case may be, documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary is subject (collectively, “Agreements and Instruments”) ), except for such defaults that would not result in a Material Adverse EffectEffect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; and the execution, delivery and performance of this Agreement and the Indenture and the consummation of the transactions contemplated herein and therein and in the Registration Statement Statement, the Disclosure Package and the Final Prospectus (including the issuance and sale of the Securities, the issuance of shares of Common Stock issuable upon conversion of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the Prospectus therein under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse EffectEffect or that are otherwise specifically disclosed in the Registration Statement, nor the Final Prospectus and the Disclosure Package); (b) do not and will such action not result in any violation of the provisions of the declaration of trustcharter, partnership agreement, charterlimited liability company agreement, by-laws or bylaws, as the case may be, other organizational documents of the Company, the Operating Partnership Company or any Subsidiary or Subsidiary; and (c) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary or any of their assets, properties or operationsoperations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiary.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their Subsidiaries respective subsidiaries is (A) in violation of its declaration charter, bylaws, certificate of trustlimited partnership, partnership agreementagreement or other organizational document, charter, bylaws or similar organizational documents, as the case may be, or (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any Subsidiary of their respective subsidiaries is a party or by which it or any of them may be bound, or to which any of the property properties or assets of the Company, the Operating Partnership or any Subsidiary such subsidiary is subject (collectively, “Agreements and Instruments”) except ), except, for such defaults that would not result in a Material Adverse Effect; Effect or as set forth in or contemplated in the Registration Statement, the General Disclosure Package and the Prospectus or (C) to the knowledge of the Company or the Operating Partnership, in violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any of their respective subsidiaries or any of their assets, properties or other operations (each, a “Governmental Entity”), except, in the case of this clause (C), for such violations that would not result in a Material Adverse Effect or as set forth in or contemplated in the Registration Statement, the General Disclosure Package and the Prospectus. The execution, delivery and performance of this Agreement and of any Terms Agreement and the consummation of the transactions contemplated herein or in any Terms Agreement and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, Company and the Operating Partnership and their Subsidiaries with their respective obligations hereunder have been duly authorized by all necessary action and under any Terms Agreement: (i) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property properties or assets of the Company, the Operating Partnership or any Subsidiary of their respective subsidiaries pursuant to, to the Agreements and InstrumentsInstruments (except, except in the case of this clause (i), for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse EffectEffect or as set forth in or contemplated in the Registration Statement, nor the General Disclosure Package and the Prospectus), (ii) will such action not result in any violation of the provisions of the declaration charter, bylaws, certificate of trustlimited partnership, partnership agreement, charter, agreement or bylaws, as the case may be, other organizational documents of the Company, the Operating Partnership or any Subsidiary of their respective subsidiaries or (iii) will not result in a violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any governmentGovernmental Entity (except, government instrumentality for such violations that would not result in a Material Adverse Effect or court, domestic as set forth in or foreign, having jurisdiction over contemplated in the CompanyRegistration Statement, the Operating Partnership or any Subsidiary or any of their assets, properties or operationsGeneral Disclosure Package and the Prospectus). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any Subsidiaryof their respective subsidiaries.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor any of their its Subsidiaries is in violation of its declaration charter or by-laws or other documents of trustorganization, partnership agreement, charter, bylaws and none of the Company or similar organizational documents, as the case may be, or any of its Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries is subject (collectivelysubject, “Agreements and Instruments”) except for such defaults that which default would not reasonably be expected to result in a Material Adverse Effectmaterial adverse effect on the Company and its Subsidiaries considered as one enterprise; and the execution, delivery and performance of this Underwriting Agreement, the applicable Terms Agreement and the Indenture and the consummation of the transactions contemplated herein and in the Registration Statement Statement, the Disclosure Package and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Underwritten Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries with their respective obligations hereunder have been duly authorized by all necessary corporate action and do not by the Company and will not, whether with or without the giving of notice or passage of time or both, not conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries pursuant toto the terms of, any contract, indenture, mortgage, loan agreement, note, lease or other agreement or other instrument to which the Agreements and InstrumentsCompany or any of its Subsidiaries is a party or by which the Company or any of them may be bound, except for such conflicts, breaches, defaults or Repayment Events to which any property or liens, charges assets of the Company or encumbrances that would not result in a Material Adverse Effect, any of its Subsidiaries is subject; nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree administrative or court decree; nor will such action conflict with or have an adverse effect on any of any governmentthe certificates, government instrumentality authorities, licenses or court, domestic or foreign, having jurisdiction over permits of the Company, the Operating Partnership or any Subsidiary Company or any of their assets, properties or operationsits Subsidiaries that enable them to carry on the business and operations now operated by them and which are material to the business of the Company and its Subsidiaries considered as one enterprise. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) issued by the Company the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof its Subsidiaries.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their Subsidiaries The Company is not in violation of the Charter or its declaration of trust, partnership agreement, charter, amended and restated bylaws or similar organizational documents, as in effect on the case may be, date hereof (the “Bylaws”) or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any Subsidiary Company is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any Subsidiary Company is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the ). The execution, delivery and performance of this Agreement Agreement, the Warrant Agreement, the Escrow Agreement, the Warrant Subscription Agreements and the Trust Agreement, the issuance and sale of the Securities, the consummation of the transactions contemplated herein and herein, therein, in the Registration Statement Statement, in the Time of Sale Prospectus and in the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements Private Placement Warrants and the use of the Net Proceeds from the sale of the Securities proceeds therefrom as described in the Time of Sale Prospectus and the Prospectus under the caption “Use of Proceeds”) and the compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with with, or constitute a breach of, or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any Subsidiary Company pursuant to, to the Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, Charter or bylaws, as the case may be, of the Company, the Operating Partnership Bylaws or any Subsidiary or of any applicable law, statute, rule, rule or regulation, judgment, order, writ or decree applicable to the Company of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any Subsidiary Company or any of their its assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which that gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any Subsidiary.

Absence of Defaults and Conflicts. None Neither of the CompanyTransaction Entities, the Operating Partnership or nor any of their Subsidiaries subsidiaries (A) is in violation of its declaration of trust, partnership agreement, charter, bylaws by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational documents, as the case may be, document or (B) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which either of the Company, the Operating Partnership Transaction Entities or any Subsidiary of their subsidiaries is a party or by which it or any of them may be bound, or to which any of the property Properties or any other properties or assets of the Company, the Operating Partnership Transaction Entities or any Subsidiary of their subsidiaries is subject (collectively, “Agreements and Instruments”) ), except for such defaults that that, singly or in the aggregate, would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or by the Alternative Distribution Agreements Operating Partnership and the issuance of the Guarantee by the Company and the use of the Net Proceeds proceeds from the sale of the Securities as described in the General Disclosure Package and Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Transaction Entities with their respective obligations hereunder have been duly authorized by all necessary action corporate or limited partnership action, as applicable, and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not not, singly or in the aggregate, result in a Material Adverse Effect), nor will such action result in any violation of (i) the provisions of the declaration of trust, partnership agreement, charter, by-laws, certificate of limited partnership, Operating Partnership Agreement or bylaws, as the case may be, similar organizational document of either of the Company, the Operating Partnership Transaction Entities or any Subsidiary of their subsidiaries or of (ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Transaction Entities or any Subsidiary of their subsidiaries or any of their assets, properties or operations, except in the case of clause (ii) only, for any such violation that would not result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Transaction Entities or any Subsidiaryof their subsidiaries.

Absence of Defaults and Conflicts. None The Company is not in violation of the Companyits Amended and Restated Certificate of Incorporation, the Operating Partnership as amended (“Charter”), or any of their Subsidiaries its Third Amended and Restated Bylaws, as amended (“Bylaws”). No Subsidiary is in violation of its declaration of trustorganizational documents (including, without limitation, partnership agreement, charter, bylaws or similar organizational documents, as and limited liability company agreements). Neither the case may be, or Company nor any of its Subsidiaries is in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary is a party or by which it the Company or any of them Subsidiary may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary is subject (collectively, “Agreements and Instruments”) ), except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement and the Deposit Agreement and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus therein (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”” and the filing with the SOS of the Certificate of Designation) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration Charter or Bylaws of trustthe Company or the organizational documents of any Subsidiary (including, without limitation, partnership agreementand limited liability company operating agreements), charter, or bylaws, as the case may be, of the Company, the Operating Partnership or any Subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiary.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor any of their its Significant Subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may be, by-laws or is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its Significant Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property assets, properties or assets operations of the Company, the Operating Partnership Company or any Subsidiary of its Significant Subsidiaries is subject (collectively, “Agreements and Instruments”) ), except for such defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement Agreement, the Indenture and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Registration Statement, the Disclosure Package and the Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement Statement, the Disclosure Package and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements Notes and the use of the Net Proceeds proceeds from the sale of the Securities Notes as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined belowherein) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Company, the Operating Partnership Company or any Subsidiary of its Significant Subsidiaries pursuant to, the any Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Company or any Subsidiary of its Significant Subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership Company nor any Significant Subsidiary is (i) in breach or any of their Subsidiaries is in violation of its declaration certificate or articles of trust, partnership agreementincorporation, charter, bylaws bylaws, limited liability company agreement, certificate or agreement of limited or general partnership, memorandum and articles of association, or other similar organizational documents, as the case may be, of such entity, (ii) in breach of or in default (or, with the giving of notice or lapse of time or both, would be in the performance or observance of default) (“Default”) under any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, deed of trust, note, contract, franchise, lease or other agreement agreement, obligation, condition, covenant or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its Significant Subsidiaries is a party or by which it or any of them may be bound, bound or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of its Significant Subsidiaries is subject (collectivelyeach, an “Agreements Existing Instrument”), or (iii) in violation of any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its Significant Subsidiaries or any of their properties, as applicable, except, with respect to clauses (ii) and Instruments”(iii) except only, for such defaults breaches, violations or Defaults that would not result not, individually or in the aggregate, have a Material Adverse Effect; and the . The Company’s execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in hereby or by the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements Shares and the use of the Net Proceeds proceeds from the sale of the Securities Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries with their respective obligations hereunder (i) have been duly authorized by all necessary action and do not corporate action, and will notnot result in any breach or violation of the certificate or articles of incorporation, whether with charter, bylaws, limited liability company agreement, certificate or without agreement of limited or general partnership, memorandum and articles of association, or other similar organizational documents, as the giving case may be, of notice the Company or passage any of time or bothits Significant Subsidiaries, (ii) will not conflict with or constitute a breach of, or default Default or a Debt Repayment Triggering Event (as defined below) under, or result in the creation or imposition of any lien, charge charge, claim or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of its Significant Subsidiaries pursuant to, or require the Agreements consent of any other party to, any Existing Instrument, and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would (iii) will not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trustany statute, partnership agreement, charter, or bylaws, as the case may be, of the Company, the Operating Partnership or any Subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ order or decree applicable to the Company or any of its Significant Subsidiaries of any government, government instrumentality or court, domestic regulatory body, administrative agency, governmental body, arbitrator or foreign, other authority having jurisdiction over the Company, the Operating Partnership or any Subsidiary Company or any of its Significant Subsidiaries or any of its or their assetsproperties, properties as applicable, except, with respect to clauses (ii) and (iii) only, for such conflicts, breaches, Defaults, Debt Repayment Triggering Events or operationsviolations that would not, individually or in the aggregate, have a Material Adverse Effect. As used herein, a “Debt Repayment Triggering Event” means any event or condition which gives gives, or with the giving of notice or lapse of time or both would give, the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) ), issued by the Company, the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof its Significant Subsidiaries.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their (a) The Company and its Subsidiaries is are not in violation of its declaration charter or its bylaws, and the execution and delivery of trustthis Agreement and the performance of this Agreement, partnership agreementthe issuance, sale and delivery of the Offered Shares, the consummation of the transactions herein contemplated and compliance with the terms hereof do not and will not conflict with or violate the terms of or constitute or result in a breach of or default under: (i) its (or any of its Subsidiaries’) charter, bylaws or similar other organizational documents, as the case may be, ; or in default in the performance or observance of (ii) any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreementlease, note, lease note or other material agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of their properties are bound; or (iii) any law, rule or regulation applicable to the property or assets of the Company, the Operating Partnership Company or any Subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their its Subsidiaries with their respective obligations hereunder have been duly authorized by all necessary action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any Subsidiary pursuant toof their properties; or (iv) any writ, the Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, or bylaws, as the case may be, of the Company, the Operating Partnership or any Subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ injunction or decree of any government, government governmental instrumentality or court, domestic or foreign, having jurisdiction over the CompanyCompany or any of its Subsidiaries or any of their properties except, in the cases of clauses (ii), (iii) and (iv), for such violations or defaults that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. (b) The Operating Partnership is not in violation of its certificate of limited partnership or its partnership agreement, and the execution and delivery of this Agreement and the performance of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms hereof do not and will not conflict with or violate the terms of or constitute or result in a breach of or default under: (i) the Operating Partnership’s certificate of limited partnership; or (ii) the Operating Partnership’s partnership agreement; or (iii) any indenture, mortgage, deed of trust, lease, note or other material agreement or instrument to which the Operating Partnership is a party or to which its properties are bound; or (iv) any law, rule or regulation applicable to the Operating Partnership; or (v) any writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Operating Partnership or its properties except, in the cases of clauses (ii), (iii), (iv) and (v), for such violations or defaults that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. (c) To the knowledge of the Company, the Advisor is not in violation of its Certificate of Formation, limited liability company agreement and other organizational and operating documents, and the execution, delivery and performance of the Advisory Agreement, the consummation of the transactions therein contemplated and compliance with the terms thereof do not and will not conflict with or violate the terms of or constitute or result in a breach of or default under: (i) its Certificate of Formation; or (ii) its limited liability company agreement; or (iii) any Subsidiary indenture, mortgage, deed of trust, lease, note or other agreement or instrument to which the Advisor or any of its subsidiaries is a party or to which the Advisor or any of its subsidiaries or any of their assetsproperties is bound; or (iv) any law, properties rule or operations. As used hereinregulation applicable to the Advisor; or (v) any writ, a “Repayment Event” means any event injunction or condition which gives the holder decree of any notegovernment, debenture governmental instrumentality or other evidence court, domestic or foreign, having jurisdiction over the Advisor or its properties except, in the cases of indebtedness clauses (ii), (iii), (iv) and (v), for such violations or any person acting defaults that, individually or in the aggregate, could not reasonably be expected to result in (a) a material adverse effect on such holder’s behalfthe condition, financial or otherwise, earnings, business affairs or business prospects of the Advisor or (b) a Material Adverse Effect. To the right to require the repurchase, redemption or repayment knowledge of all or a portion of such indebtedness by the Company, no consent, approval, authorization or order of any court or other governmental agency or body has been or is required for the Operating Partnership or any Subsidiaryperformance of the Advisory Agreement by the Advisor.

Absence of Defaults and Conflicts. None Neither the Company nor any of its subsidiaries is, and upon the consummation of the CompanyTransactions will not be, the Operating Partnership or any of their Subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws or similar organizational documents, as the case may be, Organizational Documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contractbond, debenture, note or any other evidence of indebtedness or in any agreement, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership it or any Subsidiary of its subsidiaries is a party or by which it it, any of its subsidiaries or any of them its or their properties may be bound, which breach, default or to which any of violation would not, individually or in the property or assets of the Companyaggregate, the Operating Partnership or any Subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in have a Material Adverse Effect; and Effect or materially impair the ability of the Trust or the Company to consummate the Transactions or any other transactions provided for in this Agreement or the Transaction Documents to which the Company is a party. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds net proceeds from the sale of the Securities as described in the Pre-Pricing Prospectus and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary action and under this Agreement do not and will not, whether with or without the giving of notice or passage of time or both, (A) conflict with or constitute a breach of, or default under the Organizational Documents, (B) conflict with or Repayment Event (as defined below) underconstitute a breach or violation of, or a default (or an event which, with notice or lapse of time or both, would constitute such a default) under any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which any of its or their properties may be bound, (C) violate any statute, law, regulation, ruling or any order, judgment, decree or injunction of any court or governmental agency or body directed to the Company, any of its subsidiaries or any of its or their properties in a proceeding to which the Company, any of its subsidiaries or its or their properties is a party or is bound, or (D) result in the creation or imposition of any lien, charge or encumbrance Lien upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary pursuant to, the Agreements and Instrumentsof its subsidiaries, except with respect to clauses (B) through (D) for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances Liens that would not not, individually or in the aggregate, result in a Material Adverse Effect, nor will such action result in any violation Effect or materially impair the ability of the provisions of Company or the declaration of trust, partnership agreement, charter, or bylaws, as Trust to consummate the case may be, of the Company, the Operating Partnership Transactions or any Subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any Subsidiary or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any Subsidiarytransactions provided for in this Agreement.

Absence of Defaults and Conflicts. None Neither of the CompanyTransaction Entities, the Operating Partnership or nor any of their Subsidiaries subsidiaries (A) is in violation of its declaration of trust, partnership agreement, charter, bylaws by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational documents, as the case may be, document or (B) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which either of the Company, the Operating Partnership Transaction Entities or any Subsidiary of their subsidiaries is a party or by which it or any of them may be bound, or to which any of the property Properties or any other properties or assets of the Company, the Operating Partnership Transaction Entities or any Subsidiary of their subsidiaries is subject (collectively, “Agreements and Instruments”) ), except for such defaults that that, singly or in the aggregate, would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or by the Alternative Distribution Agreements Company and the use of the Net Proceeds proceeds from the sale of the Securities as described in the General Disclosure Package and Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Transaction Entities with their respective obligations hereunder have been duly authorized by all necessary action corporate or limited partnership action, as applicable, and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not not, singly or in the aggregate, result in a Material Adverse Effect), nor will such action result in any violation of (i) the provisions of the declaration of trust, partnership agreement, charter, by-laws, certificate of limited partnership, Operating Partnership Agreement or bylaws, as the case may be, similar organizational document of either of the Company, the Operating Partnership Transaction Entities or any Subsidiary of their subsidiaries or of (ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Transaction Entities or any Subsidiary of their subsidiaries or any of their assets, properties or operations, except in the case of clause (ii) only, for any such violation that would not result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Transaction Entities or any Subsidiaryof their subsidiaries.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their Subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws or similar organizational documents, as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any Subsidiary of their Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any Subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the Prospectus therein under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries with their respective obligations hereunder have been duly authorized by all necessary action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any Subsidiary pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, or bylaws, as the case may be, of the Company, the Operating Partnership or any Subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any Subsidiary or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any Subsidiary.

Absence of Defaults and Conflicts. None The Trust is not, and upon the consummation of the CompanyTransactions will not be, the Operating Partnership or any of their Subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws or similar organizational documents, as the case may be, Trust Agreement or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the CompanyOrganizational Trust Agreement, the Operating Partnership or any Subsidiary is a party or by which it or any of them may be bound, or to which any Trust Agreement and the Certificate of the property or assets of the CompanyTrust (together, the Operating Partnership or any Subsidiary is subject (collectively, “Agreements and InstrumentsTrust Documents”) except for such defaults that would not result in a Material Adverse Effect; and the ). The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds net proceeds from the sale of the Securities as described in the Pre-Pricing Prospectus and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Trust with their respective its obligations hereunder have been duly authorized by all necessary action and under this Agreement do not and will not, whether with or without the giving of notice or passage of time or both, (A) conflict with or constitute a breach of, or default under any Trust Documents, (B) conflict with, constitute a breach or Repayment Event (as defined below) underviolation of, or a default (or an event which, with notice or lapse of time or both, would constitute such a default) under any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Trust is a party or by which any of its properties may be bound, (C) violate any statute, law, regulation, ruling or any order, judgment, decree or injunction of any court or governmental agency or body applicable to the Trust or its properties in a proceeding to which it or its properties is a party or is bound, or (D) result in the creation or imposition of any lien, charge or encumbrance a Lien upon any property or assets of the Company, the Operating Partnership or any Subsidiary pursuant to, the Agreements and InstrumentsTrust, except with respect to (B) through (D) for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances Liens that would not not, individually or in the aggregate, result in a Material Adverse Effect, nor will such action result in any violation Effect or materially impair the ability of the provisions of Trust to consummate the declaration of trust, partnership agreement, charter, or bylaws, as the case may be, of the Company, the Operating Partnership Transactions or any Subsidiary other transactions provided for in this Agreement or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any Subsidiary or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any SubsidiaryTransaction Documents.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor any of their its Subsidiaries is in violation of its declaration charter or by-laws or other documents of trustorganization, partnership agreement, charter, bylaws and none of the Company or similar organizational documents, as the case may be, or any of its Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries is subject (collectivelysubject, “Agreements and Instruments”) except for such defaults that which default would not reasonably be expected to result in a Material Adverse Effectmaterial adverse effect on the Company and its Subsidiaries considered as one enterprise; and the execution, delivery and performance of this Underwriting Agreement, the applicable Terms Agreement and the Indenture and the consummation of the transactions contemplated herein and in the Registration Statement Statement, the Disclosure Package and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Underwritten Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries with their respective obligations hereunder have been duly authorized by all necessary corporate action and do not by the Company and will not, whether with or without the giving of notice or passage of time or both, not conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries pursuant toto the terms of, any contract, indenture, mortgage, loan agreement, note, lease or other agreement or other instrument to which the Agreements and InstrumentsCompany or any of its Subsidiaries is a party or by which the Company or any of them may be bound, except for such conflicts, breaches, defaults or Repayment Events to which any property or liens, charges assets of the Company or encumbrances that would not result in a Material Adverse Effect, any of its Subsidiaries is subject; nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by‑laws of the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree administrative or court decree; nor will such action conflict with or have an adverse effect on any of any governmentthe certificates, government instrumentality authorities, licenses or court, domestic or foreign, having jurisdiction over permits of the Company, the Operating Partnership or any Subsidiary Company or any of their assets, properties or operationsits Subsidiaries that enable them to carry on the business and operations now operated by them and which are material to the business of the Company and its Subsidiaries considered as one enterprise. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) issued by the Company the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof its Subsidiaries.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor any of their its Subsidiaries is in violation of its declaration charter or by-laws or other documents of trustorganization, partnership agreement, charter, bylaws and none of the Company or similar organizational documents, as the case may be, or any of its Subsidiaries is in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effectsubject; and the execution, delivery and performance of this Underwriting Agreement, the applicable Terms Agreement and the Indenture and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Underwritten Securities as described in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their Subsidiaries with their respective obligations hereunder have been duly authorized by all necessary corporate action and do not by the Company and will not, whether with or without the giving of notice or passage of time or both, not conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries pursuant toto the terms of, any contract, indenture, mortgage, loan agreement, note, lease or other agreement or other instrument to which the Agreements and InstrumentsCompany or any of its Subsidiaries is a party or by which the Company or any of them may be bound, except for such conflicts, breaches, defaults or Repayment Events to which any property or liens, charges assets of the Company or encumbrances that would not result in a Material Adverse Effect, any of its Subsidiaries is subject; nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree administrative or court decree; nor will such action conflict with or have an adverse effect on any of any governmentthe certificates, government instrumentality authorities, licenses or court, domestic or foreign, having jurisdiction over permits of the Company, the Operating Partnership or any Subsidiary Company or any of their assets, properties or operationsits Subsidiaries that enable them to carry on the business and operations now operated by them and which are material to the business of the Company and its Subsidiaries considered as one enterprise. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof its Subsidiaries.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their Subsidiaries The Company is not in violation of the Articles or its declaration of trustBylaws, partnership agreement, charter, bylaws each as amended or similar organizational documents, as the case may besupplemented to date, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any Subsidiary Company is a party party, including each of the Company Agreements, or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any Subsidiary Company is subject (collectively, “Agreements and Instruments”) except for such violations or defaults that would not not, individually or in the aggregate, result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement Agreement, the Investment Advisory Agreement, the Administration Agreement, the Custodian Agreement, dated as of October 5, 2012 and the Transfer Agency and Services Agreement, dated as of May 9, 2013, referred to in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Administration Agreement,” the “Custody Agreement” and the “Transfer Agency Agreement,” respectively and collectively the “Company Agreements”) and the consummation of the transactions contemplated herein in this Agreement, the Company Agreements and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements Preferred Stock and the use of the Net Proceeds proceeds from the sale of the Securities Preferred Stock as described in the Prospectus and the Disclosure Package under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any Subsidiary Company pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not not, individually or in the aggregate, result in a Material Adverse Effect), nor will such action result in (i) any violation of the provisions of 47166115.8 the declaration of trust, partnership agreement, charter, Articles or bylaws, as the case may be, of the Company, the Operating Partnership Bylaws or any Subsidiary or of (ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any Subsidiary Company or any of their its assets, properties or operations, except with respect to (ii) only, for such violations that would not, individually or in the aggregate, result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any Subsidiary.

Absence of Defaults and Conflicts. None Neither the Company nor any of the Company, the Operating Partnership or any of their Subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws by-laws or similar other organizational documents. Further, as neither the case may be, or Company nor any of the Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture (including the Eleventh Supplemental Indenture), the Securities, the Investment Advisory Agreement, the Administration Agreement and the DTC Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary action and thereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries pursuant to, the Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, by-laws or bylaws, as the case may be, other organizational documents of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof the Subsidiaries.

Absence of Defaults and Conflicts. None of Neither the Company, Company nor the Operating Partnership or any of their Subsidiaries Subsidiary is in violation of its declaration of trusttrust (“Original Declaration of Trust”) or bylaws (“Original Company Bylaws”), partnership agreement, charter, bylaws or similar organizational documents, as in the case may beof the Company, or its certificate of formation, limited liability company agreement (the “Subsidiary LLC Agreement”) or bylaws (“Subsidiary Bylaws”), in the case of the Subsidiary, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, Company or the Operating Partnership or any Subsidiary is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, Company or the Operating Partnership or any Subsidiary is subject (collectively, “Agreements and Instruments”) ), except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary trust action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, Company or the Operating Partnership or any Subsidiary pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the Original Declaration of Trust, the Original Company Bylaws, the amended and restated declaration of trust, partnership agreement, charter, or bylaws, as the case may be, trust of the Company, as effective at the Operating Partnership Closing Time (“Amended Declaration of Trust”), the amended and restated bylaws of the Company, as effective at the Closing Time (“Amended Company Bylaws”), the Subsidiary LLC Agreement, the Subsidiary Bylaws or any Subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, Company or the Operating Partnership or any Subsidiary or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, Company or the Operating Partnership or any Subsidiary.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor any of their its Subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contractcontract (including, but not limited to, the Amended and Restated Delta Connection Agreement, dated as of September 8, 2005, by and between SkyWest Airlines, Inc. and Delta Air Lines, Inc., the Second Amended and Restated Delta Connection Agreement, dated as of September 8, 2005, by and between ASA and Delta Air Lines, Inc. and the United Express Agreement, dated as of July 31, 2003, as amended, by and between SkyWest Airlines, Inc. and United Air Lines, Inc.), indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary is subject (collectively, “"Agreements and Instruments”") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Company or any Subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary or any of their assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiary.

Absence of Defaults and Conflicts. None Neither the Company nor any of the Company, the Operating Partnership or any of their Subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws by-laws or similar other organizational documents. Further, as neither the case may be, or Company nor any of the Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture (including the Fifth Supplemental Indenture), the Securities, the Investment Advisory Agreement, the Administration Agreement and the DTC Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary action and thereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries pursuant to, the Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, by-laws or bylaws, as the case may be, other organizational documents of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof the Subsidiaries.

Absence of Defaults and Conflicts. None Neither of the CompanyTransaction Entities, the Operating Partnership or nor any of their Subsidiaries subsidiaries (A) is in violation of its declaration of trust, partnership agreement, charter, bylaws by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational documents, as the case may be, document or (B) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which either of the Company, the Operating Partnership Transaction Entities or any Subsidiary of their subsidiaries is a party or by which it or any of them may be bound, or to which any of the property Properties or any other properties or assets of the Company, the Operating Partnership Transaction Entities or any Subsidiary of their subsidiaries is subject (collectively, “Agreements and Instruments”) ), except for such defaults that that, singly or in the aggregate, would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the General Disclosure Package and Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Transaction Entities with their respective obligations hereunder have been duly authorized by all necessary action corporate or limited partnership action, as applicable, and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not not, singly or in the aggregate, result in a Material Adverse Effect), nor will such action result in any violation of (i) the provisions of the declaration charter (including the Articles Supplementary), by-laws, certificate of trustlimited partnership, partnership agreement, charter, Operating Partnership Agreement or bylaws, as the case may be, similar organizational document of either of the Company, the Operating Partnership Transaction Entities or any Subsidiary of their subsidiaries or of (ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Transaction Entities or any Subsidiary of their subsidiaries or any of their assets, properties or operations, except in the case of clause (ii) only, for any such violation that would not result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Transaction Entities or any Subsidiaryof their subsidiaries.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their Subsidiaries Such Issuing Trust is not in violation of its declaration certificate of trust, partnership agreement, charter, bylaws or similar organizational documents, as the case may be, trust or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any Subsidiary such Issuing Trust is a party or by which it or any of them may be bound, bound or to which any of the property or assets of the Company, the Operating Partnership or any Subsidiary such Issuing Trust is subject (collectivelythe "ISSUING TRUST AGREEMENTS AND INSTRUMENTS"), “Agreements and Instruments”) except for such violations or defaults that would not result in a an Issuing Trust Material Adverse Effect; and the execution, delivery and performance of this Agreement Agreement, the Issuing Trust Agreement, the Issuing Trust Administration Agreement, its Notes and the Indenture and any other agreement or instrument entered into or issued or to be entered into or issued by such Issuing Trust in connection with the transactions contemplated by the Prospectus, the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements Notes by an Issuing Trust and the use of the Net Proceeds from the sale of the Securities proceeds therefrom as described in the Prospectus Prospectus) (collectively, the "ISSUING TRUST PROGRAM DOCUMENTS") and the compliance by such Issuing Trust with its obligations hereunder and under the caption “Use of Proceeds”) and compliance by the CompanyIssuing Trust Program Documents, the Operating Partnership and their Subsidiaries with their respective obligations hereunder have been duly authorized by all necessary action and do not and will not, whether with or without the giving of notice or the passage of time or both, conflict with or constitute a breach of, or default or Repayment Event event or condition which gives the holder of any note, debenture or other evidence of indebtedness (as defined belowor any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by such Issuing Trust under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Company, the Operating Partnership any Issuing Trust or any Subsidiary such Issuing Trust pursuant to, the any Issuing Trust Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration such Issuing Trust's certificate of trust, partnership agreement, charter, the Issuing Trust Agreement or bylaws, as the case Issuing Trust Administration Agreement which may be, of reasonably be expected to result in an Issuing Trust Material Adverse Effect and such Issuing Trust is not in default in the Company, the Operating Partnership performance or any Subsidiary or observance of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any Subsidiary such Issuing Trust or any of their its assets, properties or operations. As used herein, a “Repayment Event” means any event or condition except for such defaults which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right would not reasonably be expected to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any Subsidiaryresult in an Issuing Trust Material Adverse Effect.

Absence of Defaults and Conflicts. None Neither of the CompanyTransaction Entities, the Operating Partnership or nor any of their Subsidiaries subsidiaries (A) is in violation of its declaration of trust, partnership agreement, charter, bylaws by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational documents, as the case may be, document or (B) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which either of the Company, the Operating Partnership Transaction Entities or any Subsidiary of their subsidiaries is a party or by which it or any of them may be bound, or to which any of the property Properties or any other properties or assets of the Company, the Operating Partnership Transaction Entities or any Subsidiary of their subsidiaries is subject (collectively, “Agreements and Instruments”) ), except for such defaults that that, singly or in the aggregate, would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the General Disclosure Package and Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Transaction Entities with their respective obligations hereunder have been duly authorized by all necessary action corporate or limited partnership action, as applicable, and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not not, singly or in the aggregate, result in a Material Adverse Effect), nor will such action result in any violation of (i) the provisions of the declaration of trust, partnership agreement, charter, by-laws, certificate of limited partnership, Operating Partnership Agreement or bylaws, as the case may be, similar organizational document of either of the Company, the Operating Partnership Transaction Entities or any Subsidiary of their subsidiaries or of (ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Transaction Entities or any Subsidiary of their subsidiaries or any of their assets, properties or operations, except in the case of clause (ii) only, for any such violation that would not result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Transaction Entities or any Subsidiaryof their subsidiaries.

Absence of Defaults and Conflicts. None Neither the Company nor any of the Company, the Operating Partnership or any of their Subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws by-laws or similar other organizational documents. Further, as neither the case may be, or Company nor any of the Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture (including the Twelfth Supplemental Indenture), the Securities, the Investment Advisory Agreement, the Administration Agreement and the DTC Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary action and thereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries pursuant to, the Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, by-laws or bylaws, as the case may be, other organizational documents of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof the Subsidiaries.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their Subsidiaries The Fund is not (i) in violation of its declaration of trusttrust or by-laws, partnership agreement, charter, bylaws or similar organizational documents, each as the case may beamended from time to time, or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any Subsidiary it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any Subsidiary Fund is subject (collectivelytogether with the declaration of trust and by-laws, the “Agreements and Instruments”), except, with respect to (ii) except only, for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory and Business Management Agreement dated as of [—], 2010, between the Fund and the Manager (the “Investment Management Agreement”), the [Sub-Advisory Agreement] dated as of [—], 2010, by and among the Fund, the Manager and the Commodity Subadvisor (the “Commodity Sub-Advisory Agreement”), the [Sub-Advisory Agreement] dated as of [—], 2010, by and among the Fund, the Manager and the Collateral Subadvisor (the “Collateral Sub-Advisory Agreement”), [include any other material agreements] and any other material agreements and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Fund with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any Subsidiary Fund pursuant to, the Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trusttrust or by-laws of the Fund, partnership agreement, chartereach as amended from time to time, or bylaws, as the case may be, of the Company, the Operating Partnership or any Subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any Subsidiary Fund or any of their its assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any SubsidiaryFund.

Absence of Defaults and Conflicts. None Neither the Company nor any of its Subsidiaries, and to the Company’s knowledge, none of the Company, the Operating Partnership or any of their Subsidiaries ’s other subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws by-laws, operating agreement or similar any organizational documents, as the case may be, documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the CompanyCompany or its subsidiaries, the Operating Partnership or any Subsidiary is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary its subsidiaries is subject (collectively, “Agreements and Instruments”) ), except for such defaults that would not reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and, except as disclosed in the General Disclosure Package and the Prospectus, the consummation of the transactions contemplated herein in this Agreement and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder under this Agreement have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary subsidiary, pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, by-laws, operating agreement or bylaws, as the case may be, any similar organizational documents of the Company, the Operating Partnership Company or any Subsidiary Subsidiary, or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary or any of their assets, properties or operationsoperations (other than foreign or state securities or blue sky laws). As used hereinin this Agreement, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiary.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor any of their its Subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws regulations or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof its Subsidiaries.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their Subsidiaries respective subsidiaries is (A) in violation of its declaration charter, bylaws, certificate of trustlimited partnership, partnership agreementagreement or other organizational document, charter, bylaws or similar organizational documents, as the case may be, or (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any Subsidiary of their respective subsidiaries is a party or by which it or any of them may be bound, or to which any of the property properties or assets of the Company, the Operating Partnership or any Subsidiary such subsidiary is subject (collectively, “Agreements and Instruments”) except ), except, for such defaults that would not result in a Material Adverse Effect; Effect or as set forth in or contemplated in the Registration Statement, the General Disclosure Package and the Prospectus, or (C) to the knowledge of the Company or the Operating Partnership, in violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any of their respective subsidiaries or any of their assets, properties or other operations (each, a “Governmental Entity”), except, in the case of this clause (C), for such violations that would not result in a Material Adverse Effect or as set forth in or contemplated in the Registration Statement, the General Disclosure Package and the Prospectus. The execution, delivery and performance of this Agreement and of any Terms Agreement and the consummation of the transactions contemplated herein or in any Terms Agreement and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, Company and the Operating Partnership and their Subsidiaries with their respective obligations hereunder have been duly authorized by all necessary action and under any Terms Agreement: (i) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property properties or assets of the Company, the Operating Partnership or any Subsidiary of their respective subsidiaries pursuant to, to the Agreements and InstrumentsInstruments (except, except in the case of this clause (i), for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse EffectEffect or as set forth in or contemplated in the Registration Statement, nor the General Disclosure Package and the Prospectus), (ii) will such action not result in any violation of the provisions of the declaration charter, bylaws, certificate of trustlimited partnership, partnership agreement, charter, agreement or bylaws, as the case may be, other organizational documents of the Company, the Operating Partnership or any Subsidiary of their respective subsidiaries or (iii) will not result in a violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any governmentGovernmental Entity (except, government instrumentality for such violations that would not result in a Material Adverse Effect or court, domestic as set forth in or foreign, having jurisdiction over contemplated in the CompanyRegistration Statement, the Operating Partnership or any Subsidiary or any of their assets, properties or operationsGeneral Disclosure Package and the Prospectus). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any Subsidiaryof their respective subsidiaries.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor any of their its Subsidiaries is in violation of its declaration charter or by-laws or other documents of trustorganization, partnership agreement, charter, bylaws and none of the Company or similar organizational documents, as the case may be, or any of its Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries is subject (collectivelysubject, “Agreements and Instruments”) except for such defaults that which default would not reasonably be expected to result in a Material Adverse Effectmaterial adverse effect on the Company and its Subsidiaries considered as one enterprise; and the execution, delivery and performance of this Underwriting Agreement, the applicable Terms Agreement, the Deposit Agreement and the Certificate of Designations and the consummation of the transactions contemplated herein and therein and in the Registration Statement Statement, the Disclosure Package and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Underwritten Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries with their respective obligations hereunder have been duly authorized by all necessary corporate action and do not by the Company and will not, whether with or without the giving of notice or passage of time or both, not conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries pursuant toto the terms of, any contract, indenture, mortgage, loan agreement, note, lease or other agreement or other instrument to which the Agreements and InstrumentsCompany or any of its Subsidiaries is a party or by which the Company or any of them may be bound, except for such conflicts, breaches, defaults or Repayment Events to which any property or liens, charges assets of the Company or encumbrances that would not result in a Material Adverse Effect, any of its Subsidiaries is subject; nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by‑laws of the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree administrative or court decree; nor will such action conflict with or have an adverse effect on any of any governmentthe certificates, government instrumentality authorities, licenses or court, domestic or foreign, having jurisdiction over permits of the Company, the Operating Partnership or any Subsidiary Company or any of their assets, properties or operationsits Subsidiaries that enable them to carry on the business and operations now operated by them and which are material to the business of the Company and its Subsidiaries considered as one enterprise. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) issued by the Company the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof its Subsidiaries.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their Subsidiaries Such Trust is not (x) in violation of its declaration of trust, partnership agreement, charter, bylaws Trust Agreement or similar organizational documents, as the case may be, or (y) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any Subsidiary such Trust is a party or by which it or any of them may be bound, bound or to which any of the property or assets of the Company, the Operating Partnership or any Subsidiary such Trust is subject (collectively, as to each Trust, the “Trust Agreements and Instruments”) ), except for such defaults that would not result in a Trust Material Adverse Effect; and the . The (A) execution, delivery and performance of this Agreement, the relevant Indenture, the relevant Notes and any other agreement or instrument entered into or issued or to be entered into or issued by such Trust in connection with the transactions contemplated by the Time of Sale Prospectus, (B) performance of the relevant Trust Agreement (all agreements and instruments referenced in Section 3(b)(iv)(A) hereof and this Section 3(b)(iv)(B) are referred to herein, as to each Trust, as the “Trust Program Documents”), (C) consummation of the transactions contemplated herein and in the Registration Statement and the Time of Sale Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements relevant Notes and the use of the Net Proceeds from the sale of the Securities proceeds therefrom as described in the Prospectus Time of Sale Prospectus) and (D) compliance by such Trust with its obligations under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries with their respective obligations hereunder Trust Program Documents have been or will timely be duly authorized by all necessary action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach ofbreach, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any Subsidiary pursuant to, the Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, or bylaws, as the case may be, of the Company, the Operating Partnership or any Subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any Subsidiary or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by such Trust under, or, except as contemplated by the CompanyTrust Program Documents, result in the Operating Partnership creation or imposition of any lien, charge or encumbrance upon any assets, properties or operations of such Trust pursuant to, any Trust Agreements and Instruments, nor will such actions result in any violation of the relevant Trust Agreement or, except to the extent that any such violation would not result in a Trust Material Adverse Effect, any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over such Trust or any Subsidiaryof its assets, properties or operations.

Absence of Defaults and Conflicts. None The Trust is not in violation of the Companytrust certificate of the Trust filed with the State of Delaware (the "Trust Certificate") or the Declaration, and neither the Operating Partnership or Company nor any of their its Significant Subsidiaries or Insurance Subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws by-laws or similar organizational documentscode of regulations; except as set forth in Schedule 1(a)(xxv) attached hereto, as none of the case may beTrust, the Company or any subsidiary of the Company is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any Subsidiary it is a party or by which it or any of them may be bound, bound or to which any of the property its properties or assets of the Company, the Operating Partnership or any Subsidiary is subject (collectively, “"Agreements and Instruments”) "), except for such defaults that would under Agreements and Instruments that, in the reasonable judgment of the Company, are not expected to result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement the Operative Documents by the Trust or the Company, as the case may be, the issuance, sale and delivery of the Capital Securities and the Subordinated Debt Securities, the consummation of the transactions contemplated herein and in by the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) Operative Documents, and compliance by the CompanyTrust and the Company with the terms of the Operative Documents to which they are a party have been duly authorized by all necessary corporate action on the part of the Company and, on the Operating Partnership and their Subsidiaries with their respective obligations hereunder Closing Date, will have been duly authorized by all necessary action on the part of the Trust and do not and will not, whether with or without the giving of notice or passage of time or both, violate, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any any, security interest, mortgage, pledge, lien, charge charge, encumbrance, claim or encumbrance equitable right upon any property properties or assets of the Company, Trust or the Operating Partnership Company or any Subsidiary of its Significant Subsidiaries or Insurance Subsidiaries pursuant to, to any of the Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, by-laws or bylaws, as the case may be, code of regulations of the Company, the Operating Partnership Company or any Subsidiary of its Significant Subsidiaries or Insurance Subsidiaries or the Declaration or the Trust Certificate, or violation by the Company or any of its Significant Subsidiaries or Insurance Subsidiaries of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government authority, agency (including, without limitation, each applicable Regulatory Agency) or instrumentality or court, domestic or foreign, having jurisdiction over the Company, Trust or the Operating Partnership or any Subsidiary Company or any of its Significant Subsidiaries or Insurance Subsidiaries or their assets, respective properties or operationsassets (collectively, "Governmental Entities"). As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, Trust or the Operating Partnership Company or any Subsidiaryof its Significant Subsidiaries or Insurance Subsidiaries prior to its scheduled maturity.

Absence of Defaults and Conflicts. None Neither the Company nor any of the Company, the Operating Partnership or any of their Subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws by-laws or similar other organizational documents. Further, as neither the case may be, or Company nor any of the Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture (including the Thirteenth Supplemental Indenture), the Securities, the Investment Advisory Agreement, the Administration Agreement and the DTC Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary action and thereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries pursuant to, the Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, by-laws or bylaws, as the case may be, other organizational documents of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof the Subsidiaries.

Absence of Defaults and Conflicts. None of the Company, its subsidiaries or the Operating Partnership or any of their Subsidiaries Trust is in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar by-laws or other organizational documents, as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, any such subsidiary or the Operating Partnership or any Subsidiary Trust is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, any such subsidiary or the Operating Partnership or any Subsidiary Trust is subject (collectivelysubject, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; . The execution and delivery by the Company and the executionTrust of, and the performance by the Company and the Trust of their obligations under, this Agreement, the Declaration, the Preferred Securities Guarantee Agreement, the Indenture and the Debentures, the issuance and delivery by the Trust of the Common Securities and performance of this Agreement and Preferred Securities, the consummation of the transactions contemplated herein sale of the Preferred Securities and in the Registration Statement and the Prospectus (including the issuance and sale by the Company of the Securities from time Debentures to time pursuant to this Agreement or the Alternative Distribution Agreements Trust and the use fulfillment of the Net Proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) terms herein and compliance by the Company, the Operating Partnership and their Subsidiaries with their respective obligations hereunder have been duly authorized by all necessary action and therein contemplated do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute result in a breach of any of the terms or provisions of, or constitute a default under (in each case material to the Company and its subsidiaries (including the Trust) considered as a whole or Repayment Event as to the Trust separately), any indenture, mortgage, deed of trust, loan agreement, guarantee, lease, financing agreement or other similar agreement or instrument to which the Company or any of its subsidiaries (as defined belowincluding the Trust) under, is a party or result in by which the creation Company or imposition any of its subsidiaries (including the Trust) is bound or to which any lien, charge or encumbrance upon any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary pursuant to, of its subsidiaries (including the Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse EffectTrust) is subject, nor will such action actions result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the CompanyCompany or the Declaration of the Trust, nor will such actions result in any violation (in each case material to the Operating Partnership Company and its subsidiaries (including the Trust) considered as a whole or as to the Trust separately) of any statute or any Subsidiary order, rule or regulation of any applicable law, statute, rule, regulation, judgment, order, writ court or decree of any government, government instrumentality regulatory authority or court, domestic or foreign, other governmental body having jurisdiction over the Company, Trust or the Operating Partnership Company or any Subsidiary of its subsidiaries or any of their assetsproperties. No consent, properties approval, authorization or operations. As used hereinorder of, a “Repayment Event” means or qualification with, any event governmental body or condition agency is required for, and the absence of which gives would materially affect, the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness performance by the CompanyCompany and the Trust of their obligations under this Agreement, the Operating Partnership Declaration, the Preferred Securities Guarantee Agreement and the Indenture and the issuance and sale of the Preferred Securities and the Debentures, except such approvals as will be obtained under the 1933 Act, the 1934 Act or any Subsidiarythe 1939 Act and as may be required by the securities or Blue Sky laws of the various states or the securities laws of non-U.S. jurisdictions in connection with the sale of the Preferred Securities.

Absence of Defaults and Conflicts. None Neither the Company nor any of the Company, the Operating Partnership or any of their Subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws by-laws or similar other organizational documents. Further, as neither the case may be, or Company nor any of the Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture (including the Eighth Supplemental Indenture), the Securities, the Investment Advisory Agreement, the Administration Agreement and the DTC Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary action and thereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries pursuant to, the Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, by-laws or bylaws, as the case may be, other organizational documents of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof the Subsidiaries.

Absence of Defaults and Conflicts. None Neither the Company nor any of the Company, the Operating Partnership or any of their Subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws by-laws or similar other organizational documents. Further, as neither the case may be, or Company nor any of the Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture (including the Seventeenth Supplemental Indenture), the Securities, the Investment Advisory Agreement, the Administration Agreement and the DTC Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary action and thereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries pursuant to, the Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, by-laws or bylaws, as the case may be, other organizational documents of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof the Subsidiaries.

Absence of Defaults and Conflicts. None Neither the Company nor any of the Company, the Operating Partnership or any of their Subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws by-laws or similar other organizational documents. Further, as neither the case may be, or Company nor any of the Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture (including the Fourteenth Supplemental Indenture), the Securities, the Investment Advisory Agreement, the Administration Agreement and the DTC Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary action and thereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries pursuant to, the Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, by-laws or bylaws, as the case may be, other organizational documents of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof the Subsidiaries.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or nor any of their Subsidiaries respective subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws or similar organizational documents, Organizational Documents (as the case may be, defined below) or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contractCompany Document (as defined below), indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any Subsidiary is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any Subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by each of the Company, Company and the Operating Partnership and their Subsidiaries with their respective its obligations hereunder have been duly authorized by all necessary action and under this Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance Lien upon any property or assets of the Company, the Operating Partnership or any Subsidiary of their respective subsidiaries pursuant to, the Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effectto any Company Documents, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, or bylaws, as the case may be, Organizational Documents of the Company, the Operating Partnership or any Subsidiary of their respective subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries or any of their respective assets, properties or operations. As The term “Company Documents” as used herein, a “Repayment Event” herein means any event contracts, indentures, mortgages, deeds of trust, loan or condition which gives the holder credit agreements, bonds, notes, debentures, evidences of any noteindebtedness, debenture leases or other evidence of indebtedness (instruments or any person acting on such holder’s behalf) the right agreements to require the repurchase, redemption or repayment of all or a portion of such indebtedness by which the Company, the Operating Partnership or any Subsidiaryof their respective subsidiaries is a party or by which the Company, the Operating Partnership or any of their respective subsidiaries is bound or to which any of the property or assets of the Company, the Operating Partnership or any of their respective subsidiaries is subject. The term “Organizational Documents” as use herein means (a) in the case of a corporation, its charter and by-laws; (b) in the case of a limited or general partnership, its partnership certificate, certificate of formation or similar organizational document and its partnership agreement; (c) in the case of a limited liability company, its articles of organization, certificate of formation or similar organizational documents and its operating agreement, limited liability company agreement, membership agreement or other similar agreement; (d) in the case of a trust, its certificate of trust, certificate of formation or similar organizational document and its trust agreement or other similar agreement; and (e) in the case of any other entity, the organizational and governing documents of such entity.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor any of their Subsidiaries its subsidiaries is in violation of its declaration of trustcharter or bylaws, its partnership agreement, charterdeclaration of trust or trust agreement, bylaws or its limited liability company agreement (or other similar organizational documentsagreement), as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries is a party or by which it or any of them may be bound, bound or to which any of the property respective properties or assets of the Company, the Operating Partnership Company or any Subsidiary subsidiary is subject (collectively, “Agreements and Instruments”) ), except for such defaults that would not result in have a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the Articles Supplementary and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus therein (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the Statutory Prospectus and the Prospectus under the caption “Use of Proceeds”) ” and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder and thereunder), and the issuance of shares of Common Stock (the “Conversion Shares”) upon conversion of the Securities in accordance with the Articles Supplementary have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary subsidiary pursuant to, the Agreements and Instrumentsany Agreement or Instrument, except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that that, individually or in the aggregate, would not result in have a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, bylaws of the Company, the Operating Partnership Company or any Subsidiary or of any applicable law, statute, rule, regulation, or governmental or court judgment, order, writ or decree. Neither the Company nor any of its subsidiaries is subject to any governmental or court judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over that is material with respect to the Company, the Operating Partnership or any Subsidiary or any of their assets, properties or operationsCompany and its subsidiaries considered as one enterprise. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiarysubsidiary of the Company or any of its subsidiaries.

Absence of Defaults and Conflicts. None of Neither the Company, Adviser nor the Operating Partnership or any of their Subsidiaries Administrator is in violation of its declaration certificate of trustlimited partnership or certificate of formation, as applicable, or limited partnership operating agreement or limited liability company operating agreement, charter, bylaws or similar organizational documents, as the case may beapplicable, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, Adviser or the Operating Partnership or any Subsidiary Administrator is a party or by which it or any of them may be bound, or to which any of the property or assets of the CompanyAdviser or the Administrator is subject, the Operating Partnership or in violation of any Subsidiary is subject (collectivelylaw, “Agreements and Instruments”) statute, rule, regulation, judgment, order or decree except for such violations or defaults that would not not, individually or in the aggregate, reasonably be expected to result in a an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements Notes and the use of the Net Proceeds proceeds from the sale of the Securities Notes as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Adviser with their respective its obligations hereunder have been duly authorized and under the Investment Advisory Agreement and by all necessary action the Administrator with its obligations hereunder and under the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, Adviser or the Operating Partnership or any Subsidiary Administrator pursuant to, the Agreements and Instruments, to such Agreement except for such conflicts, breaches, violations or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result in a an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable, nor will such action result in any violation of the provisions of the declaration of trust, limited partnership or limited liability company operating agreement, charter, or bylaws, as the case may beapplicable, of the CompanyAdviser or Administrator, the Operating Partnership or respectively; nor will such action result in any Subsidiary or violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the CompanyAdviser, the Operating Partnership or any Subsidiary Administrator, or any of their respective assets, properties or operations. As used hereinoperations except for such violations that would not, a “Repayment Event” means any event individually or condition which gives in the holder of any noteaggregate, debenture reasonably be expected to result in an Adviser Material Adverse Effect or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchasean Administrator Material Adverse Effect, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any Subsidiaryas applicable.

Absence of Defaults and Conflicts. None Neither the Company nor any of the Company, the Operating Partnership or any of their Subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws by-laws or similar other organizational documents. Further, as neither the case may be, or Company nor any of the Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture (including the Tenth Supplemental Indenture), the Securities, the Investment Advisory Agreement, the Administration Agreement and the DTC Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary action and thereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries pursuant to, the Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, by-laws or bylaws, as the case may be, other organizational documents of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof the Subsidiaries.

Absence of Defaults and Conflicts. None Neither the Company nor any of its Material Subsidiaries nor, to the Company’s knowledge, the Operating Partnership or Hillshire nor any of their Subsidiaries is Hillshire’s Material Subsidiaries, is, or with the giving of notice or lapse of time or both would be, in violation of or in default under, its declaration certificate or articles of trustincorporation, partnership agreementby-laws, chartercertificate or articles of formation, bylaws limited liability company operating agreement or similar organizational other comparable constituent documents, as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease agreement or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its Material Subsidiaries or Hillshire or Hillshire’s Material Subsidiaries is a party or by which it or any of them may be or any of their respective properties is bound, except for violations and defaults which individually or in the aggregate are not material to the Company and its subsidiaries or Hillshire and its subsidiaries, as applicable, taken as a whole, or to the holders of the Securities; the issue and sale of the Securities and the performance by the Company of all of its obligations under the Securities and this Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Company or any of its Material Subsidiaries is a party or by which the Company or any of its Material Subsidiaries is bound or to which any of the property or assets of the Company or any of its Material Subsidiaries is subject, except for conflicts, breaches or defaults that, singly or in the aggregate, would not reasonably be expected to have a material adverse effect on the Company and its subsidiaries taken as a whole, or, in the case of any such matter relating to Hillshire, a material adverse effect on the Company, the Operating Partnership its subsidiaries, Hillshire and its subsidiaries, taken as a whole, or any Subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the consummation of on the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries with their respective obligations hereunder have been duly authorized by all necessary action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any Subsidiary pursuant to, the Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effecthereby, nor will any such action result in any violation of the provisions of (A) the declaration certificate or articles of trust, partnership agreement, charter, incorporation or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Company or (B) any applicable law or statute or any Subsidiary order, rule or regulation of any applicable law, statute, rule, regulation, judgment, order, writ court or decree of any government, government instrumentality governmental agency or court, domestic or foreign, body having jurisdiction over the Company, the Operating Partnership or any Subsidiary its Material Subsidiaries or any of their assetsrespective properties, properties except, in the case of (B) above, for violations that, singly or operations. As used hereinin the aggregate, would not reasonably be expected to have a “Repayment Event” means material adverse effect on the Company and its subsidiaries taken as a whole, or on the transactions contemplated hereby; and no consent, approval, authorization, order, registration or qualification of or with any event such court or condition which gives governmental agency or body is required for the holder issue and sale of any note, debenture the Securities or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness consummation by the CompanyCompany of the transactions contemplated by this Agreement, except such consents, approvals, authorizations, registrations or qualifications as have been obtained under the Operating Partnership 1933 Act and as may be required under state securities or any SubsidiaryBlue Sky Laws in connection with the purchase and distribution of the Securities by the Underwriters.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership Guarantor or any of their Subsidiaries --------------------------------- its subsidiaries (including the Company) is in violation of its declaration of trust, charter or by-laws or partnership agreement, charter, bylaws or similar organizational documents, as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Guarantor or any Subsidiary of its subsidiaries (including the Company) is a party or by which it or any of them may be bound, or to which any of the property assets, properties or assets operations of the Company, the Operating Partnership Guarantor or any Subsidiary of its subsidiaries (including the Company) is subject (collectively, “"Agreements and Instruments”) "), except for such defaults that would not reasonably be expected to result in a Material Adverse Effect; and the Change. The execution, delivery and performance of this Underwriting Agreement, the applicable Terms Agreement and each applicable Indenture and any other agreement or instrument entered into or issued or to be entered into or issued by the Company or the Guarantor in connection with the transactions contemplated hereby or thereby or in the Registration Statement and the Prospectus, and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including including, without limitation, the issuance and sale of the Underwritten Securities from time to time pursuant to this Agreement or and the Alternative Distribution Agreements Guarantee, and the use of the Net Proceeds proceeds from the sale of the Underwritten Securities and the Guarantee as described in the Prospectus under the caption “"Use of Proceeds”") and compliance by the CompanyCompany and the Guarantor, the Operating Partnership and their Subsidiaries as applicable, with their respective its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Company, the Operating Partnership Guarantor or any Subsidiary of its subsidiaries (including the Company) pursuant to, the any Agreements and Instruments, Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result in a Material Adverse EffectChange), nor will such action result in any violation of the provisions of the declaration of trust, charter or by-laws or partnership agreement, charter, or bylaws, as the case may be, of the Company, the Operating Partnership Guarantor or any Subsidiary or of its subsidiaries (including the Company) or, to the best of the Company's and the Guarantor's knowledge, any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any Subsidiary Guarantor or any of their its subsidiaries (including the Company) or over any of the assets, properties or operationsoperations of the Guarantor or any of its subsidiaries (including the Company). As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Guarantor or any Subsidiaryof its subsidiaries (including the Company).

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor --------------------------------- any of their Subsidiaries its subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries is subject (collectively, “"Agreements and Instruments”) "), except for such defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Underwriting Agreement and the applicable Terms Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the actions contemplated hereby or thereby or in the Registration Statement and the Prospectus and the consummation of the transactions actions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Underwritten Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Underwritten Securities as described in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries pursuant to, the any Agreements and Instruments, Instruments (except for such conflicts, breaches, defaults or Repayment Events defaults, events or liens, charges or encumbrances that would not result in a Material Adverse Effect, ) nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary if its subsidiaries or any of their assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor any of their its Material Subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its Material Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Material Subsidiary is subject (collectively, “"Agreements and Instruments”) except "), except, in each case other than with respect to the charter or by-laws of the Company or any of its Material Subsidiaries, for such violations or defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Distribution Agreement, any applicable Terms Agreement or Pricing Supplement and the Indenture, and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Registration Statement and the Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements Notes and the use of the Net Proceeds proceeds from the sale of the Securities Notes as described under the caption "Use of Proceeds" in the Prospectus under the caption “Use of Proceeds”relating to such Notes) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any assets, property or assets operations of the Company, the Operating Partnership Company or any Subsidiary of its Material Subsidiaries pursuant to, the any Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect, Instruments nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Company or any Subsidiary of its Material Subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company ("Relevant Laws") or any Subsidiary of its Material Subsidiaries or any of their assets, properties or operationsoperations except, in each case other than with respect to the charter or by-laws of the Company or any of its Material Subsidiaries or Relevant Laws, for such conflicts, breaches, defaults, Repayment Events, liens, charges, encumbrances, or violations that would not result in a Material Adverse Effect. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof its Material Subsidiaries.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership Company or any of their Subsidiaries subsidiary thereof is in violation of its declaration of trustcharter or by-laws, partnership agreement, charter, bylaws agreement or similar organizational documents, as the case may be, other constitutive documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary subsidiary thereof is a party or by which it or any of them may be bound, or to which any of the property assets, properties or assets operations of the Company, the Operating Partnership Company or any Subsidiary subsidiary thereof is subject (collectively, “"Agreements and Instruments”) "), except for such defaults that would not reasonably be expected to result in a Material Adverse Effect; and the Change. The execution, delivery and performance of the Terms Agreement (including the provisions of this Agreement Agreement) and the Deposit Agreement, the issuance and sale of the Preferred Shares, and the sale of the Shares, as contemplated herein and in the Prospectus, the consummation of the transactions transaction contemplated herein herein, in the Deposit Agreement and in the Registration Statement and the Prospectus (including including, without limitation, the issuance and sale of the Securities from time to time pursuant to this Agreement or Preferred Shares, the Alternative Distribution Agreements sale of the Shares, and the use of the Net Proceeds proceeds from the sale of the Securities Preferred Shares as described in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary action and thereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Company, the Operating Partnership Company or any Subsidiary subsidiary thereof pursuant to, the any Agreements and Instruments, Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result in a Material Adverse Effect, Change); nor will such action result in any violation of the provisions of the declaration of trustcharter or by-laws, partnership agreementagreement or other constitutive documents of the Company or any subsidiary thereof or, charter, or bylaws, as to the case may be, best knowledge of the Company, the Operating Partnership or any Subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary subsidiary thereof or over any of their assets, properties or operations, except for such violations under any applicable law, statute, rule, regulation, judgement, order, writ or decree as would not reasonably be expected to result in a Material Adverse Change. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiarysubsidiary thereof.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their respective Subsidiaries is in violation of its declaration charter, by-laws, certificate of trustlimited partnership, partnership agreementagreement or other organizational documents and none of the Company, charter, bylaws the Operating Partnership or similar organizational documents, as the case may be, or any of their respective subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any Subsidiary of their respective subsidiaries is a party or by which it the Company, the Operating Partnership or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any Subsidiary such subsidiary is subject (collectively, “Agreements and Instruments”) ), except for such defaults that would not result in a Material Adverse Effect; Effect or as set forth in or contemplated in the Registration Statement, the General Disclosure Package and the Prospectus. The execution, delivery and performance of this Agreement and of any Terms Agreement and the consummation of the transactions contemplated herein or in any Terms Agreement and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, Company and the Operating Partnership and their Subsidiaries with their respective obligations hereunder have been duly authorized by all necessary action and under any Terms Agreement: (i) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any Subsidiary of their respective subsidiaries pursuant to, to the Agreements and Instruments, Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse EffectEffect or as set forth in or contemplated in the Registration Statement, nor the General Disclosure Package and the Prospectus), (ii) will such action not result in any violation of the provisions of the declaration charter, by-laws, certificate of trustlimited partnership, partnership agreement, charter, agreement or bylaws, as the case may be, other organizational documents of the Company, the Operating Partnership or any Subsidiary of their respective Subsidiaries or (iii) will not result in a violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any Subsidiary of their respective subsidiaries or any of their assets, properties or operationsoperations (except for such violations that would not result in a Material Adverse Effect or as set forth in or contemplated in the Registration Statement, the General Disclosure Package and the Prospectus). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any Subsidiaryof their respective subsidiaries.

Absence of Defaults and Conflicts. None Neither the Company nor any of the Company, the Operating Partnership or any of their Subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws by-laws or similar other organizational documents. Further, as neither the case may be, or Company nor any of the Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Deposit Agreement, the Warrant Agreement, if applicable, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement and the Prospectus General Disclosure Package (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary action and thereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries pursuant to, the Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, by-laws or bylaws, as the case may be, other organizational documents of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof the Subsidiaries.

Absence of Defaults and Conflicts. None The Company is not in violation of its Amended and Restated Certificate of Formation, as amended to the date hereof (the “Charter”), or Sixth Amended and Restated Bylaws (the “Bylaws”); none of the Company, Subsidiaries of the Operating Partnership or any of their Subsidiaries Company is in violation of its declaration articles of trust, partnership agreementincorporation, charter, bylaws or similar other organizational documents, as ; neither the case may be, or Company nor any of its Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Company is subject (collectively, “Agreements and Instruments”) ), or in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except for such violations or defaults that would not not, singly or in the aggregate, result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the Indenture and the consummation of the transactions contemplated herein and therein, and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Company pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not not, singly or in the aggregate, result in a Material Adverse Effect, ); nor will such action result in any violation of the provisions of the declaration Charter or Bylaws of trust, partnership agreement, the Company or the charter, bylaws or bylaws, as the case may be, other organizational document of any Subsidiary of the Company, the Operating Partnership or ; nor will such action result in any Subsidiary or violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries or any of their assets, properties or operationsoperations (except for such violations that would not, singly or in the aggregate, result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof its Subsidiaries.

Absence of Defaults and Conflicts. None Neither the Company nor any --------------------------------- of the Company, the Operating Partnership or any of their Subsidiaries its subsidiaries is in violation of the provisions of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may be, by- laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries is a party or by which it or any of them may be bound, bound or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries is subject (collectively, “"Agreements and Instruments”) "), except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement Agreement, the Indenture, the Notes and the Pledged Bonds and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated by the Prospectus, the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements Notes and the use of the Net Proceeds from the sale of the Securities proceeds therefrom as described in the Prospectus under the caption “Use of Proceeds”Prospectus) and the compliance by the CompanyCompany with its obligations hereunder and under the Indenture, the Operating Partnership Notes and their Subsidiaries with their respective obligations hereunder the Pledged Bonds and such other agreements or instruments have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or the passage of time or both, conflict with or constitute a breach of, or default or event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries (a "Repayment Event (as defined belowEvent") under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries pursuant to, the any Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any Subsidiary.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership Company nor any Significant Subsidiary is (i) in breach or any of their Subsidiaries is in violation of its declaration certificate or articles of trust, partnership agreementincorporation, charter, bylaws bylaws, limited liability company agreement, certificate or agreement of limited or general partnership, memorandum and articles of association, or other similar organizational documents, as the case may be, of such entity, (ii) in breach of or in default (or, with the giving of notice or lapse of time or both, would be in the performance or observance of default) (“Default”) under any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, deed of trust, note, contract, franchise, lease or other agreement agreement, obligation, condition, covenant or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its Significant Subsidiaries is a party or by which it or any of them may be bound, bound or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of its Significant Subsidiaries is subject (collectivelyeach, an “Agreements Existing Instrument”), or (iii) in violation of any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its Significant Subsidiaries or any of their properties, as applicable, except, with respect to clauses (ii) and Instruments”(iii) except only, for such defaults breaches, violations or Defaults that would not result not, individually or in the aggregate, have a Material Adverse Effect; and the . The Company’s execution, delivery and performance of this Agreement and the each Terms Agreement and consummation of the transactions contemplated herein and in hereby or thereby or by the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries with their respective obligations hereunder (i) have been duly authorized by all necessary action and do not corporate action, and will notnot result in any breach or violation of the certificate or articles of incorporation, whether with charter, bylaws, limited liability company agreement, certificate or without agreement of limited or general partnership, memorandum and articles of association, or other similar organizational documents, as the giving case may be, of notice the Company or passage any of time or bothits Significant Subsidiaries, (ii) will not conflict with or constitute a breach of, or default Default or a Debt Repayment Triggering Event (as defined below) under, or result in the creation or imposition of any lien, charge charge, claim or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of its Significant Subsidiaries pursuant to, or require the Agreements consent of any other party to, any Existing Instrument, and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would (iii) will not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trustany statute, partnership agreement, charter, or bylaws, as the case may be, of the Company, the Operating Partnership or any Subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ order or decree applicable to the Company or any of its Significant Subsidiaries of any government, government instrumentality or court, domestic regulatory body, administrative agency, governmental body, arbitrator or foreign, other authority having jurisdiction over the Company, the Operating Partnership or any Subsidiary Company or any of its Significant Subsidiaries or any of its or their assetsproperties, properties as applicable, except, with respect to clauses (ii) and (iii) only, for such conflicts, breaches, Defaults, Debt Repayment Triggering Events or operationsviolations that would not, individually or in the aggregate, have a Material Adverse Effect. As used herein, a “Debt Repayment Triggering Event” means any event or condition which gives gives, or with the giving of notice or lapse of time or both would give, the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) ), issued by the Company, the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof its Significant Subsidiaries.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or nor --------------------------------- any of their its Subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries is subject (collectively, “"Agreements and Instruments”") except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement Agreement, the U.S. Purchase Agreement, and the Combination Agreements by the Company, and the consummation of the transactions contemplated herein in this Agreement, the U.S. Purchase Agreement, the Combination Agreements, and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the Prospectus Prospectuses under the caption “"Use of Proceeds”) "), and compliance by the CompanyCompany with its obligations under this Agreement, the Operating Partnership U.S. Purchase Agreement, and their Subsidiaries with their respective obligations hereunder the Combination Agreements have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse EffectEffect and except as disclosed in the Registration Statement or in the Combination Agreements (including the exhibits and schedules thereto)), nor and will such action not result in any violation of (i) the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries or of (ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries or any of their assets, properties or operationsoperations except, in the case of clause (ii), to the extent that any such violation would not have a Material Adverse Effect. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof its Subsidiaries.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor any of their Subsidiaries its subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws or similar organizational documents, as and governing documents (the case may be, “Organizational Documents”) or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its Material Subsidiaries is a party or by which it the Company or any of them may be bound, its Material Subsidiaries is bound or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of its Material Subsidiaries is subject (collectively, the “Agreements and InstrumentsCompany Documents”) ), except in the case of Company Documents for such defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement Agreement, the Indenture, the Notes and the Capped Call Confirmations and the consummation of the transactions contemplated herein herein, therein and in the Registration Statement Statement, the Disclosure Package and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or Notes, the Alternative Distribution Agreements conversion thereof in accordance with the terms of the Indenture and the use of the Net Proceeds proceeds from the sale of the Securities Notes as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the CompanyCompany with its obligations under this Agreement, the Operating Partnership Indenture, the Notes and their Subsidiaries with their respective obligations hereunder have been duly authorized by all necessary action and the Capped Call Confirmations do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) repayment event under, or result in the creation or imposition of any lien, charge or encumbrance lien upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instrumentsany Company Documents, except for such conflicts, breaches, defaults or Repayment Events or liens, charges encumbrances, equities or encumbrances claims (“Liens”) that would not result in a Material Adverse Effect, nor will such action result in any violation of (i) the provisions of the declaration of trust, partnership agreement, charter, or bylaws, as the case may be, Organizational Documents of the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries or of (ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries or any of their respective assets, properties or operations. As used herein, except for such violations in clause (ii) that would not result in a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any SubsidiaryMaterial Adverse Effect.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Guarantor, nor any of their Subsidiaries respective subsidiaries is (A) in violation of its declaration of trust, partnership agreement, charter, bylaws respective charter or similar organizational documents, as the case may be, by-laws or (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Guarantor, or any Subsidiary of their respective subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Guarantor, or any Subsidiary of their respective subsidiaries is subject (collectively, “Agreements and Instruments”) ), except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement Agreement, the Indenture and the Securities and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the offering, issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds to the Company from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder and under the Indenture and the Securities have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Guarantor, or any Subsidiary of their respective subsidiaries pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of (A) the provisions of the declaration charter or by-laws of trust, partnership agreement, charter, or bylaws, as the case may be, of the Company, the Operating Partnership Guarantor, or any Subsidiary of their respective subsidiaries or of (B) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Guarantor, or any Subsidiary of their respective subsidiaries or any of their assets, properties or operationsoperations (except for such violations that would not result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Guarantor, or any Subsidiaryof their respective subsidiaries.

Absence of Defaults and Conflicts. None Neither the Company nor any of the Company, the Operating Partnership or any of their Subsidiaries is in violation of its declaration certificate of trust, partnership agreement, charterincorporation, bylaws or similar other organizational documents. Further, as neither the case may be, or Company nor any of the Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture, the Underwritten Securities, the Warrant Agreement, if applicable, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement and the Prospectus General Disclosure Package (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”” and, if applicable, the issuance of the shares of Common Stock upon conversion of the Securities) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary action and thereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries pursuant to, the Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration certificate of trustincorporation, partnership agreement, charter, bylaws or bylaws, as the case may be, other organizational documents of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof the Subsidiaries.

Absence of Defaults and Conflicts. None Neither the Company nor any of the Company, the Operating Partnership or any of their Subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws by-laws or similar other organizational documents. Further, as neither the case may be, or Company nor any of the Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture (including the Sixth Supplemental Indenture), the Securities, the Investment Advisory Agreement, the Administration Agreement and the DTC Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary action and thereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries pursuant to, the Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, by-laws or bylaws, as the case may be, other organizational documents of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof the Subsidiaries.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor any of their its Significant Subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws or similar other organizational documents, as the case may be; none of the other subsidiaries of the Company are in violation of their respective charter, bylaws or other organizational documents, as the case may be, or in any material respect; neither the Company nor any of its subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any Subsidiary it is a party or by which it or any of them may be bound, bound or to which any of the property their respective properties or assets of the Company, the Operating Partnership or any Subsidiary is subject (collectively, “"Agreements and Instruments”) "), except for such defaults under Agreements and Instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Registration Rights Agreement by the Company, the issuance, sale and delivery of the Notes, the consummation of the transactions contemplated herein by this Agreement, the Indenture and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) Rights Agreement, and compliance by the CompanyCompany with the terms of this Agreement, the Operating Partnership and their Subsidiaries with their respective obligations hereunder Indenture, the Registration Rights Agreement, the Notes, have been duly authorized by all necessary corporate action on the part of the Company and do not and will not, whether with or without the giving of notice or passage of time or both, violate, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance Lien upon any property properties or assets of the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries pursuant to, the any Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events Liens that, singularly or liensin the aggregate, charges or encumbrances that would not result in a Material Adverse EffectEffect and that would not (i) jeopardize the Company's ability to consummate the transactions contemplated by this Agreement, the Indenture and the Registration Rights Agreement or (ii) impair or adversely affect the enforceability of this Agreement, the Indenture or the Registration Rights Agreement against the Company, nor will such action any of the foregoing result in any violation of the provisions of the declaration of trust, partnership agreement, charter, bylaws or bylaws, as the case may be, other organizational documents of the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries or any violation by the Company or any of its subsidiaries of any applicable lawlaws, statutestatutes, rulerules, regulationregulations, judgmentjudgments, orderorders, writ writs or decree decrees of any government, government governmental authority, agency or instrumentality or courtcourt (collectively, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any Subsidiary or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any Subsidiary"Governmental Entities").

Absence of Defaults and Conflicts. None of Except as described in the CompanyRegistration Statement, the Operating Partnership General Disclosure Package or the Prospectus, neither the Company nor any of their Subsidiaries its subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture, the DTC Agreement, the Pledge and Escrow Agreement and the Securities and the consummation of the transactions contemplated herein and therein and in the Registration Statement Statement, the Pledge and Escrow Agreement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) ), and the issuance of the shares of Underlying Stock issuable upon conversion of the Securities), and compliance by the CompanyCompany with its obligations hereunder and under the Indenture, the Operating Partnership Pledge and their Subsidiaries with their respective obligations hereunder Escrow Agreement and the Securities have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Company or any Subsidiary subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary subsidiary or any of their assets, properties or operationsoperations (including, without limitation, the Federal Communications Commission (the “FCC”)). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiarysubsidiary.

Absence of Defaults and Conflicts. None of the Company, Neither the Operating Partnership or nor any of their Subsidiaries Subsidiary is in violation of its declaration of trust, partnership agreement, charter, bylaws by-laws, certificate of limited partnership or similar partnership agreement or other organizational documentsdocument, as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any Subsidiary such entity is a party or by which it or any of them may be bound, or to which any of the its property or assets of the Company, the Operating Partnership may be bound or any Subsidiary is subject (collectively, “"Agreements and Instruments”) "), except for such violations or defaults that would not result in a Material Adverse Effect; Effect and except that no representation is made as to whether there has been any default under the Agreements and Instruments with regard to insurance coverage for acts of terrorism. The execution, delivery and performance of this Agreement Underwriting Agreement, the applicable Terms Agreement, the Indenture and any other agreement or instrument entered into or issued or to be entered into or issued by the Operating Partnership in connection with the transactions contemplated hereby or thereby or in the Registration Statement and the Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Underwritten Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Underwritten Securities as described in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their Subsidiaries with their respective its obligations hereunder and thereunder have been duly authorized by all necessary partnership action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Company, the Operating Partnership or any Subsidiary pursuant to, the any Agreements and Instruments, except for such conflicts, breaches, defaults or defaults, Repayment Events (as defined below) or liens, charges or encumbrances that would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, by-laws or bylaws, as the case may be, organizational documents of the Company, the Operating Partnership or any Subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any Subsidiary or any of their assets, properties or operations, except for such violations that would not have a Material Adverse Effect. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a material portion of such indebtedness by the Company, the Operating Partnership or any Subsidiary.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor any of their Subsidiaries its subsidiaries is in violation of its declaration of trust, partnership operating agreement, charter, bylaws or similar organizational documents, as the case may be, other comparable governing document or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property assets, properties or assets operations of the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries is subject (collectively, “Agreements and Instruments”) ), except for such defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Registration Statement, the General Disclosure Package and the Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements Shares and the use of the Net Proceeds proceeds from the sale of the Securities Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder and thereunder have been duly authorized by all necessary limited liability company action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries pursuant to, the any Agreements and Instruments, Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, bylaws of the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. None Neither the Company nor any of the Company, the Operating Partnership or any of their Subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws by-laws or similar other organizational documents. Further, as neither the case may be, or Company nor any of the Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries is subject (collectively, “"Agreements and Instruments”") except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Subscription/Information Agent Agreement, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement and the Prospectus (including the issuance of the Rights pursuant to the terms of the Rights Offering, the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements terms of the Rights Offering and the use of the Net Proceeds proceeds from the sale of the Securities as described in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary action and thereunder do not and will not, whether with or without the giving of notice or passage of time or both, (A) conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries pursuant to, the Agreements and Instruments, except for such conflicts, breaches, defaults or defaults, Repayment Events or Events, liens, charges or encumbrances that would not result in a Material Adverse Effect, or (B) conflict with or constitute a breach of, or default under, any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which Ares Management LLC ("Ares") is a party or by which Ares may be bound, or to which any of the property or assets of Ares is subject, or the limited partner agreement or other governing documents of any fund managed by, advised by or affiliated with Ares, except for such conflicts, breaches or defaults that would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, by laws or bylaws, as the case may be, other organizational documents of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries or any of their assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof the Subsidiaries.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or (A) Neither Dura nor any of their Subsidiaries Subsidiary is in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Dura or any Subsidiary is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Dura or any Subsidiary is subject (collectively, “"Agreements and Instruments”") except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of each of this Agreement, the U.S. Purchase Agreement, the Warrant Agreement and the Transaction Agreements by Dura, SDC and DDSI, as the case may by, the issuance and delivery of the Warrants and the issuance of shares of Dura Common Stock upon the exercise of the Warrants and the consummation by Dura, SDC and DDSI, as the case may be, of the transactions contemplated herein in this Agreement, the U.S. Purchase Agreement, the Warrant Agreement and the Transaction Agreements and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use Warrants as part of the Net Proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”Units) and compliance by Dura, SDC and DDSI, as the Companycase may be, the Operating Partnership and their Subsidiaries with their respective obligations hereunder under this Agreement, the U.S. Purchase Agreement, the Warrant Agreement and each of the Transaction Agreements to which they are a party have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Dura or any Subsidiary pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration charter or by-laws of trust, partnership agreement, charter, or bylaws, as the case may be, of the Company, the Operating Partnership Dura or any Subsidiary or of any applicable material law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Dura or any Subsidiary or any of their assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any Subsidiary.'s

Absence of Defaults and Conflicts. None The Company is not in violation of its Amended and Restated Articles of Incorporation, as amended (the “Charter”), or Third Amended and Restated Bylaws (the “Bylaws”); none of the CompanySubsidiaries, including the Operating Partnership or any of their Subsidiaries Bank, is in violation of its declaration of trust, partnership agreement, charter, bylaws or similar other organizational documents, as documents and neither the case may be, or Company nor any of its Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary is subject (collectively, “Agreements and Instruments”) ), or in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except for such violations or defaults that would not not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and therein, and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements Shares and the use of the Net Proceeds proceeds from the sale of the Securities Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, ); nor will such action result in any violation of the provisions of the declaration Charter or Bylaws of trust, partnership agreement, the Company or the charter, bylaws or bylaws, as the case may be, other organizational document of the Company, the Operating Partnership or any Subsidiary or Subsidiary; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary or any of their assets, properties or operationsoperations (except for such violations that would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiary.

Absence of Defaults and Conflicts. None The Company is not in violation of the Companyits Amended and Restated Certificate of Incorporation, the Operating Partnership as amended (“Charter”), or any of their Subsidiaries its Second Amended and Restated Bylaws, as amended (“Bylaws”). No Subsidiary is in violation of its declaration of trustorganizational documents (including, without limitation, partnership agreement, charter, bylaws or similar organizational documents, as and limited liability company agreements). Neither the case may be, or Company nor any of its Subsidiaries is in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary is a party or by which it the Company or any of them Subsidiary may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary is subject (collectively, “Agreements and Instruments”) ), except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement or the Deposit Agreement and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus therein (including the issuance and sale of the Securities from time to time pursuant to this Agreement or Series B Stock and the Alternative Distribution Agreements and Securities, the use of the Net Proceeds proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”” and the filing with the SOS of the Certificate of Designations) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration Charter or Bylaws of trustthe Company or the organizational documents of any Subsidiary (including, without limitation, partnership agreementand limited liability company operating agreements), charter, or bylaws, as the case may be, of the Company, the Operating Partnership or any Subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiary.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their Subsidiaries The Custodial Trust is not (a) in violation of its declaration of trustthe applicable Custodial Trust Declaration, partnership agreement, charter, bylaws or similar organizational documents, as the case may be, or (b) in default and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any obligation, agreementterm, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease indenture or other agreement or instrument to which the Company, the Operating Partnership or any Subsidiary it is a party or by which it or any of them may be bound, is bound or to which any of the property or assets of the Companyits properties is subject, the Operating Partnership or any Subsidiary is subject (collectively, “Agreements and Instruments”) except for any such defaults that would not result not, individually or in the aggregate, have a Material Adverse Effect; and material adverse effect on the condition, financial or otherwise, results of operations, activities or prospects of the Custodial Trust, or (c) in violation of any law, ordinance, governmental rule, regulation or court decree to which it or its property may be subject, except for any such violations that would not, individually or in the aggregate, have a material adverse effect on the condition, financial or otherwise, results of operations, activities or prospects of the Custodial Trust. None of (w) the execution, delivery and performance of this Agreement, the applicable Radian Securities Put Agreement or the Other Trust Agreements to which it is a party, (x) the consummation of the transactions contemplated hereby, thereby or as described in the Offering Memorandum, (y) the issuance, sale and delivery of the CPS Securities or (z) compliance by the Custodial Trust with the provisions of this Agreement, the applicable Radian Securities Put Agreement and each of the Other Trust Agreements to which it is a party and the CPS Securities and the consummation of the transactions herein or therein contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the CompanyOffering Memorandum will result in a breach or violation of, the Operating Partnership and their Subsidiaries with their respective obligations hereunder have been duly authorized by all necessary action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach ofdefault under, the applicable Custodial Trust Declaration or any similar organizational document or any agreement, indenture or other instrument to which the Custodial Trust is a party or by which the Custodial Trust is bound, or default to which any of its properties is subject, nor will any such action or Repayment Event (the performance by the Custodial Trust of its obligations hereunder, thereunder or as defined below) underdescribed in the Offering Memorandum violate any law, rule, administrative regulation or decree of any court, or any governmental agency or body having jurisdiction over the Custodial Trust or its properties, or result in the creation or imposition of any lien, charge charge, claim or encumbrance upon any property or assets asset of the Company, the Operating Partnership or any Subsidiary pursuant to, the Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, or bylaws, as the case may be, of the Company, the Operating Partnership or any Subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any Subsidiary or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any SubsidiaryCustodial Trust.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their Subsidiaries The Trust is not in violation of its declaration of trust, partnership agreement, charter, bylaws trust or similar organizational documents, as the case may beby-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any Subsidiary it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any Subsidiary Trust is subject (collectively, “Agreements and Instruments”) except for such violations or defaults that would not result in a Trust Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Management Agreement dated as of March [ ], 2007 between the Trust and BAL (the “Management Agreement”), the Sub-Investment Advisory Agreement dated as of March [ ], 2007 by and among the Trust, BAL and BIM (the “Sub-Advisory Agreement” and, together with the Management Agreement, the “Advisory Agreements”), the Custodian Agreement dated as of March [ ], 2007 between the Trust and The Bank of New York (the “Custodian Agreement”), and the Transfer Agent and Service Agreement dated as of March [ ], 2007 between the Trust and The Bank of New York (the “Transfer Agency Agreement”) and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Trust with their respective its obligations hereunder have been duly authorized by all necessary trust action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any Subsidiary Trust pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Trust Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trusttrust or by-laws of the Trust, partnership agreement, chartereach as amended from time to time, or bylaws, as the case may be, of the Company, the Operating Partnership or any Subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any Subsidiary Trust or any of their its assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any SubsidiaryTrust.

Absence of Defaults and Conflicts. None Neither the Company nor any of the Company, the Operating Partnership or any of their Subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws by-laws or similar other organizational documents. Further, as neither the case may be, or Company nor any of the Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture (including the Second Supplemental Indenture), the Securities, the Investment Advisory Agreement, the Administration Agreement and the DTC Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary action and thereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries pursuant to, the Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, by-laws or bylaws, as the case may be, other organizational documents of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof the Subsidiaries.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor any of their Subsidiaries its subsidiaries is (x) in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may be, by-laws or (y) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, license, indenture, mortgage, deed of trust, loan or credit agreement, note, lease lease, material supply or distribution agreement or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries is a party or by which it or any of them may be boundbound or affected, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries is subject (collectively, “"Agreements and Instruments”") except for such defaults that which default, in the case of clause (y), would not not, singly or in the aggregate, result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement and the Registration Rights Agreement and the consummation of the transactions contemplated herein herein, therein and in the Registration Statement and the Prospectus Offering Memorandum (including the entering into and borrowing under new senior secured credit facilities, the private offering and sale of Securities and convertible preferred stock, the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and Company's common stock, the use of the Net Proceeds proceeds from the sale foregoing, including the payment of all outstanding obligations under and the Securities termination of commitments under the Company's existing credit facilities and its U.S. accounts receivable asset-backed securitization facility, as described in the Prospectus Offering Memorandum under the caption “"Use of Proceeds”" and the exchange offer and/or filing of a shelf registration statement related to the Securities) (the "Transactions") and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not conflict with and will notnot result in any breach of or constitute a default under (nor constitute any event which with notice, whether with or without the giving of notice or passage lapse of time or both, conflict with or both would constitute a breach of, of or default under) or a Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries pursuant toto any provision of any contract, license, indenture, mortgage, deed of trust, loan or credit agreement, note, lease, material supply or distribution agreement or any other agreement or instrument to which the Agreements and Instruments, Company or any of its subsidiaries is a party or by which any of them or their properties may be bound or affected (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not not, singly or in the aggregate, result in a Material Adverse Effect), nor will such action result in any a violation of the provisions charter or by-laws of the declaration of trust, partnership agreement, charter, or bylaws, as the case may be, of the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries or of any applicable federal, state, local or foreign law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over applicable to the Company, the Operating Partnership or any Subsidiary Company or any of their assets, properties or operationsits subsidiaries. As used herein, a “"Repayment Event” " (other than such Repayment Events which will be satisfied at the Closing Time) means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. None Neither the Company nor any of the Company, the Operating Partnership or any of their Subsidiaries is in violation of its declaration certificate of trust, partnership agreement, charterincorporation, bylaws or similar other organizational documents. Further, as neither the case may be, or Company nor any of the Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Deposit Agreement, the Warrant Agreement, if applicable, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement and the Prospectus General Disclosure Package (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary action and thereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries pursuant to, the Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration certificate of trustincorporation, partnership agreement, charter, bylaws or bylaws, as the case may be, other organizational documents of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof the Subsidiaries.

Absence of Defaults and Conflicts. None Neither the Company nor any of the Company, the Operating Partnership or any of their Subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws by-laws or similar other organizational documents. Further, as neither the case may be, or Company nor any of the Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture (including the Seventh Supplemental Indenture), the Securities, the Investment Advisory Agreement, the Administration Agreement and the DTC Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary action and thereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries pursuant to, the Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, by-laws or bylaws, as the case may be, other organizational documents of the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary of the Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof the Subsidiaries.

Absence of Defaults and Conflicts. None The Company is not in violation of its Amended and Restated Certificate of Formation, as amended (the “Charter”), or Fourth Amended and Restated Bylaws (the “Bylaws”); none of the Company, the Operating Partnership or any of their Subsidiaries is in violation of its declaration articles of trust, partnership agreementincorporation, charter, bylaws or similar other organizational documents, as ; neither the case may be, or Company nor any of its Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary is subject (collectively, “Agreements and Instruments”) ), or in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except for such violations or defaults that would not not, singly or in the aggregate, result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the Indenture and the consummation of the transactions contemplated herein and therein, and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not not, singly or in the aggregate, result in a Material Adverse Effect, ); nor will such action result in any violation of the provisions of the declaration Charter or Bylaws of trust, partnership agreement, the Company or the charter, bylaws or bylaws, as the case may be, other organizational document of the Company, the Operating Partnership or any Subsidiary or Subsidiary; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary or any of their assets, properties or operationsoperations (except for such violations that would not, singly or in the aggregate, result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiary.

Absence of Defaults and Conflicts. None of the Company, its Significant Subsidiaries or, to the Operating Partnership or any knowledge of their the Company, the Thunder Entities that the Company expects to be Significant Subsidiaries of the Company upon giving effect to the Acquisition is (i) in violation of its declaration Organizational Documents, (ii) in default, and no event has occurred which, with notice or lapse of trusttime or both, partnership agreementwould constitute such a default, charter, bylaws or similar organizational documents, as the case may be, or in default in the due performance or observance of any term, obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, notelease or other agreement or instrument to which it is a party or by which it is bound or which any of its properties or assets may be subject or (iii) in violation of any law, ordinance, governmental rule, regulation or court decree to which it or its property or assets may be subject, except, with respect to (ii) or (iii), for any such violations or defaults that would not be reasonably likely, singly or in the aggregate, to have a Material Adverse Effect. The execution and delivery of this Agreement and the Certificate of Designation by the Company, the consummation of the transactions contemplated hereby, the application of the proceeds from the sale of the Securities as described under “Use of Proceeds” in the General Disclosure Package and the Prospectus will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, impose any Lien, charge or encumbrance upon any property or assets of the Company, its Significant Subsidiaries and, to the knowledge of the Company, the Thunder Entities that the Company expects to be Significant Subsidiaries of the Company upon giving effect to the Acquisition under, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license, lease or other agreement or instrument to which the Company, the Operating Partnership any of its Significant Subsidiaries or any Subsidiary of the Thunder Entities that the Company expects to be Significant Subsidiaries of the Company upon giving effect to the Acquisition is a party or by which it the Company, any of its Significant Subsidiaries or any of them may the Thunder Entities that the Company expects to be bound, Significant Subsidiaries of the Company upon giving effect to the Acquisition is bound or to which any of the property or assets of the Company, the Operating Partnership any of its Significant Subsidiaries or any Subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in Thunder Entities that the Registration Statement and the Prospectus (including the issuance and sale Company expects to be Significant Subsidiaries of the Securities from time Company upon giving effect to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”Acquisition is subject; (ii) and compliance by the Company, the Operating Partnership and their Subsidiaries with their respective obligations hereunder have been duly authorized by all necessary action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any Subsidiary pursuant to, the Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, or bylaws, as the case may be, Organizational Documents of the Company, any of its Significant Subsidiaries or, to the Operating Partnership knowledge of the Company, any of the Thunder Entities that the Company expects to be Significant Subsidiaries of the Company upon giving effect to the Acquisition; or (iii) result in any violation of any statute or any Subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ decree, rule or decree regulation of any government, government instrumentality court or court, domestic governmental agency or foreign, body having jurisdiction over the Company, any of its Significant Subsidiaries or, to the Operating Partnership or knowledge of the Company, any Subsidiary of the Thunder Entities that the Company expects to be Significant Subsidiaries of the Company upon giving effect to the Acquisition, or any of their respective properties or assets, properties except with respect to clauses (i) and (iii), conflicts, breaches, violations or operations. As used hereindefaults that would not, individually or in the aggregate, reasonably be expected to have a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any SubsidiaryMaterial Adverse Effect.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor any of their Subsidiaries its subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws by-laws or similar organizational other governing documents, as the case may beapplicable, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary its subsidiaries is subject (collectively, “"Agreements and Instruments”") except for such violations or defaults that have not resulted or would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Offering Memorandum (including the Registration Rights Agreement) and the consummation of the transactions contemplated herein and therein and in the Registration Statement and the Prospectus Offering Memorandum (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the Prospectus Offering Memorandum under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or a Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary its subsidiaries pursuant to, the Agreements and Instruments, Instruments except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that that, singly or in the aggregate, have not resulted or would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, by-laws or bylaws, as the case may be, other governing documents of the Company, the Operating Partnership Company or any Subsidiary its subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary its subsidiaries or any of their assets, properties assets or operationsproperties. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the CompanyCompany or its subsidiaries. No default, or condition that with notice or lapse of time or both would constitute a default, exists with respect to any agreement or obligation that would constitute "Senior Indebtedness" within the Operating Partnership or any Subsidiarymeaning of the Indenture.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor any of their its Subsidiaries is in material violation of its declaration of trustcharter, bylaws, partnership agreement, charter, bylaws or similar organizational operating agreement or other governing documents, as the case may beapplicable, or in default (or, with the giving of notice or lapse of time, would be in default) in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary is subject (collectively, including without limitation, the credit agreements to which the Company and/or any of its Subsidiaries are a party and any “Loan Documents,” as such term is defined under any credit agreement, and any documents related to note agreements to which the Company and/or any of its Subsidiaries are a party, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the ). The execution, delivery and performance by the Company of its obligations under this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement Statement, the Time of Sale Prospectus and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements Offered Shares and the use of the Net Proceeds proceeds from the sale of the Securities Offered Shares as described in the Prospectus under in the caption “Use of Proceeds”” section of the Prospectus) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries pursuant to, the Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect, nor will such action result in any violation of (A) the provisions of the declaration of trustany charter, bylaws, partnership agreement, charter, limited liability company agreement or bylaws, as the case may be, other governing documents of the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries or of (B) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries or any of their assets, properties or operations, which violations, in the case of clause (B), would, individually or in the aggregate, have a Material Adverse Change. As used herein, a “Repayment Event” means any event or condition which that gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof its Subsidiaries. Except for permits, consents, approvals and similar authorizations required under the securities or “Blue Sky” laws of certain jurisdictions, and except for such permits, consents, approvals and authorizations which have been obtained, no permit, consent, approval, authorization or order of any court, governmental agency or body or financial institution is required in connection with the consummation of the transactions contemplated by this Agreement.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor any of their its Subsidiaries is in violation of its declaration of trust, charter, partnership agreement, charterlimited liability company agreement, bylaws by-laws or similar other organizational documents, as the case may be, documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary is subject (collectively, “Agreements and Instruments”) ), except for such defaults that would not result in a Material Adverse EffectEffect or that are otherwise specifically disclosed in the Registration Statement, the Time of Sale Information and the Prospectus; and the execution, delivery and performance of this Agreement by the Company and the Operating Partnership, the execution, delivery and performance of the Waypoint/GI Securities Purchase Agreement by the Operating Partnership and the Acquisition Subsidiary, and the consummation of the transactions contemplated herein herein, in the Waypoint/GI Securities Purchase Agreement and in the Registration Statement Time of Sale Information and the Prospectus (including the issuance and sale of the Primary Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Primary Securities as described in the Prospectus therein under the caption “Use of Proceeds”) and compliance by the CompanyCompany and the Operating Partnership (or, in the case of the Waypoint/GI Securities Purchase Agreement, by the Operating Partnership and their Subsidiaries the Acquisition Subsidiary) with their respective obligations hereunder and under the Waypoint/GI Securities Purchase Agreement and under the Time of Sale Information and the Prospectus have been duly authorized by all necessary action and real estate investment trust, limited partnership or limited liability company action, as the case may be, and: (A) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse EffectEffect or that are otherwise specifically disclosed in the Registration Statement, nor the Time of Sale Information and the Prospectus); (B) do not and will such action not result in any violation of the provisions of the declaration of trust, charter, partnership agreement, charterlimited liability company agreement, by-laws or bylaws, as the case may be, other organizational documents of the Company, the Operating Partnership Company or any Subsidiary or Subsidiary; and (C) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary or any of their assets, properties or operationsoperations (except in the case of this clause (C) for such violations that would not result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiary.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their Subsidiaries The Fund is not in violation of the Articles or its declaration of trustBylaws, partnership agreement, charter, bylaws each as amended or similar organizational documents, as the case may besupplemented to date, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any Subsidiary Fund is a party party, including each of the Fund Agreements, or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any Subsidiary Fund is subject (collectively, “Agreements and Instruments”) except for such violations or defaults that would not not, individually or in the aggregate, result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement dated as of May 30, 2019, the Administration Agreement dated as of May 9, 2013, as renewed on April 24, 2018 and the Custodian Agreement dated as of October 5, 2012 and the Transfer Agency and Services Agreement dated as of May 9, 2013, referred to in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Administration Agreement,” the “Custody Agreement” and the “Transfer Agency Agreement” respectively and collectively the “Fund Agreements”) and the consummation of the transactions contemplated herein in this Agreement, the Fund Agreements and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements Shares and the use of the Net Proceeds proceeds from the sale of the Securities Shares as described in the Preliminary Prospectus and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Fund with their respective its obligations hereunder thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any Subsidiary Fund pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not not, individually or in the aggregate, result in a Material Adverse Effect), nor will such action result in (i) any violation of the provisions of the declaration of trust, partnership agreement, charter, Articles or bylaws, as the case may be, Bylaws of the Company, the Operating Partnership Fund or any Subsidiary or of (ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any Subsidiary Fund or any of their its assets, properties or operations, except with respect to (ii) only, for such violations that would not, individually or in the aggregate, result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any SubsidiaryFund.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor any of their its Significant Subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws or similar other organizational documents, as the case may be; none of the other subsidiaries of the Company are in violation of their respective charter, bylaws or other organizational documents, as the case may be, or in any material respect; neither the Company nor any of its subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any Subsidiary it is a party or by which it or any of them may be bound, bound or to which any of the property their respective properties or assets of the Company, the Operating Partnership or any Subsidiary is subject (collectively, “"Agreements and Instruments”) "), except for such defaults under Agreements and Instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Registration Rights Agreement by the Company, the issuance, sale and delivery of the New Debentures, the consummation of the transactions contemplated herein by this Agreement, the Indenture and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) Rights Agreement, and compliance by the CompanyCompany with the terms of this Agreement, the Operating Partnership Indenture, the Registration Rights Agreement and their Subsidiaries with their respective obligations hereunder the New Debentures, have been duly authorized by all necessary corporate action on the part of the Company and do not and will not, whether with or without the giving of notice or passage of time or both, violate, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance Lien upon any property properties or assets of the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries pursuant to, the any Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events Liens that, singularly or liensin the aggregate, charges or encumbrances that would not result in a Material Adverse EffectEffect and that would not (i) jeopardize the Company's ability to consummate the transactions contemplated by this Agreement, the Indenture and the Registration Rights Agreement or (ii) impair or adversely affect the enforceability of this Agreement, the Indenture or the Registration Rights Agreement against the Company, nor will such action any of the foregoing result in any violation of the provisions of the declaration of trust, partnership agreement, charter, bylaws or bylaws, as the case may be, other organizational documents of the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries or any violation by the Company or any of its subsidiaries of any applicable lawlaws, statutestatutes, rulerules, regulationregulations, judgmentjudgments, orderorders, writ writs or decree decrees of any government, government governmental authority, agency or instrumentality or courtcourt (collectively, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any Subsidiary or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any Subsidiary"Governmental Entities").

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor any of their its Subsidiaries is in violation of its declaration charter or by-laws or other documents of trustorganization, partnership agreement, charter, bylaws and none of the Company or similar organizational documents, as the case may be, or any of its Subsidiaries is in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effectsubject; and the execution, delivery and performance of this Underwriting Agreement, the applicable Terms Agreement and the Indenture and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Underwritten Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries with their respective obligations hereunder have been duly authorized by all necessary corporate action and do not by the Company and will not, whether with or without the giving of notice or passage of time or both, not conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries pursuant toto the terms of, any contract, indenture, mortgage, loan agreement, note, lease or other agreement or other instrument to which the Agreements and InstrumentsCompany or any of its Subsidiaries is a party or by which the Company or any of them may be bound, except for such conflicts, breaches, defaults or Repayment Events to which any property or liens, charges assets of the Company or encumbrances that would not result in a Material Adverse Effect, any of its Subsidiaries is subject; nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree administrative or court decree; nor will such action conflict with or have an adverse effect on any of any governmentthe certificates, government instrumentality authorities, licenses or court, domestic or foreign, having jurisdiction over permits of the Company, the Operating Partnership or any Subsidiary Company or any of their assets, properties or operationsits Subsidiaries that enable them to carry on the business and operations now operated by them and which are material to the business of the Company and its Subsidiaries considered as one enterprise. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof its Subsidiaries.