Common use of Absence of Defaults and Conflicts Clause in Contracts

Absence of Defaults and Conflicts. The Company is not in violation of its charter or 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 is a party or by which it may be bound or to which any of the property or assets of the Company is subject (collectively, “Agreements and Instruments”) except for such defaults as would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 (including the issuance and sale of the Securities and the use of the 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 the Company with 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 pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events or defaults 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 charter or by-laws of the Company or 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 or any of 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the Company.

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not in violation of its charter or by-laws bylaws, its partnership agreement, declaration of trust or trust agreement, or its limited liability company agreement (or other similar agreement), 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 or any of its subsidiaries is a party or by which it any of them may be bound or to which any of the property respective properties or assets of the Company or any subsidiary is subject (collectively, “Agreements and Instruments”) ), except for such defaults as that would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 therein (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Disclosure Package Statutory Prospectus and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with 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 or any subsidiary pursuant to, the Agreements and Instruments (any Agreement or Instrument, except for such conflicts, breaches, Repayment Events breaches or defaults 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 charter or by-laws bylaws of the Company or 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 or any of and its assets, properties or operationssubsidiaries 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any subsidiary of the Company or any of its subsidiaries.

Absence of Defaults and Conflicts. The Company None of the Simon Entities or any Property Partnership is not in violation of its charter or charter, by-laws laws, certificate of limited partnership or partnership agreement or other organizational document, 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 each entity is a party or by which it or any of them may be bound bound, or to which any of the its property or assets of the Company is 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 such entities) or defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 Prospectus (including the issuance and sale of the Securities Notes and the use of the proceeds from the sale of the Securities Notes as described in the Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company Operating Partnership with its obligations hereunder and thereunder have been duly authorized by all necessary corporate 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 upon any property assets, properties or assets operations of the Company Operating Partnership or any other Simon Entity or any Property Partnership pursuant to, the any Agreements and Instruments (Instruments, except for such conflicts, breaches, defaults, Repayment Events or defaults or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect), nor will shall such action result in any violation of the provisions of the charter OP Partnership Agreement or by-laws certificate of limited partnership of the Company Operating Partnership or the organizational documents of any other Simon Entity or 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 Operating Partnership, any other Simon Entity or any Property Partnership or any of its 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 such entities) 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 behalf) the right to require the repurchase, redemption or repayment (through acceleration or otherwise), in each case prior to its stated maturity, of all or a material portion of such indebtedness by the CompanyOperating Partnership, any other Simon Entity or any Property Partnership.

Absence of Defaults and Conflicts. The Neither the Company nor any “significant subsidiary” of the Company (as such term is not defined in Rule 1-02 of Regulation S-X) (each, a “Subsidiary” and collectively, the “Subsidiaries” and each of which is listed on Schedule C hereto) is in violation of its charter or 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 or any 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 or any Subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults as would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 (including the issuance and sale of the Securities and the use of the 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 the Company with 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 or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events or defaults 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 charter or by-laws of the Company or 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 or any of 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any Subsidiary.

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not in violation of its charter or by-laws or in default (beyond any applicable notice and cure period) 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 or any 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 or any subsidiary is subject (collectively, “Agreements and Instruments”) ), except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 Disclosure Package and the Final Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Disclosure Package and the Final Prospectus under the caption “Use of Proceeds”) and compliance by the Company with 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 or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults, Repayment Events or defaults 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 charter or by-laws of the Company or any subsidiary or 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 or any subsidiary or any of its 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any subsidiary.

Absence of Defaults and Conflicts. The Neither the Company nor any of its Subsidiaries is not in violation of its charter or by-laws Organizational Documents (as defined below) 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 or any 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 or any of its Subsidiaries is subject subject, including the Contribution Transaction Agreements (as defined below) (collectively, “Agreements and Instruments”) ), except for such violations or defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, execution and delivery and performance of this Agreement and the performance of the Transaction Agreements, and the consummation of the transactions contemplated herein and therein and in the Registration Statement (including the issuance and sale of the Securities and Shares by the use of the proceeds from the sale of the Securities as described in the Disclosure Package and the Prospectus under the caption “Use of Proceeds”Company) and compliance by the Company and the Operating Partnership with its their obligations hereunder have and thereunder, as applicable, has been duly authorized by all necessary corporate action and do does 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 or any of its Subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of (i) the provisions of the charter or by-laws Organizational Documents of the Company Company, (ii) the provisions of the Organizational Documents of the Subsidiaries or (iii) 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 or any of its Subsidiaries or any of their assets, properties or operations, except in the case of clauses (ii) and (iii) only, for any such violation that would not result in a Material Adverse Effect. As used herein, a “Repayment EventOrganizational Documents” means any event (a) in the case of a corporation, its charter and by-laws; (b) in the case of a limited 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the Company.general

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not in violation of its charter or by-laws or other constituting or organizational 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 or any of its subsidiaries is a party 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 or any subsidiary of the Company is subject (collectively, “Agreements and Instruments”) ), except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Agreement each of the Transaction Documents 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 Time of Sale Information and the Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement Statement, the Time of Sale Information and the Prospectus (including the issuance and sale of the Securities by the Company and the use of the proceeds by the Company from the sale of the Securities as described in the Disclosure Package Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with 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 or any subsidiary of the Company pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events breaches or defaults 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 charter or by-laws or other constituting or organizational instrument as in effect on the date hereof of the Company or any subsidiary of the Company or 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 or any subsidiary of its the Company or any of their assets, properties or operations, except for any such violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of law which 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the Company or any subsidiary of the Company.

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not in violation of its charter or by-laws bylaws, its partnership agreement, declaration of trust or trust agreement, or its limited liability company agreement (or other similar agreement), 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 or any of its subsidiaries is a party or by which it any of them may be bound or to which any of the property respective properties or assets of the Company or any subsidiary is subject (collectively, “Agreements and Instruments”) ), except for such defaults as that would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Agreement Agreement, the Agency Agreement, the Indenture and the Securities and the consummation of the transactions contemplated herein and in the Registration Statement therein (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Disclosure Package Statutory Prospectus and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with 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 or any subsidiary pursuant to, the Agreements and Instruments (any Agreement or Instrument, except for such conflicts, breaches, Repayment Events breaches or defaults 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 charter or by-laws bylaws of the Company or 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 or any of and its assets, properties or operationssubsidiaries 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any subsidiary of the Company or any of its subsidiaries.

Absence of Defaults and Conflicts. The Neither the Company nor any of its Subsidiaries is not in violation of its charter or by-laws 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 or any 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 or any of its Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 therein and in the Registration Statement Statement, the Statutory Prospectus and the Prospectus (including the issuance and sale of the Securities Securities, and the use of the proceeds from the sale of the Securities as described in the Disclosure Package Statutory Prospectus and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with 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 or any of its Subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of (i) the provisions of the charter or by-laws organizational documents of the Company or any of its Subsidiaries or (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 or any of its Subsidiaries or any of their assets, properties or operations, except in the case of clause (ii) only, 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any of its Subsidiaries.

Absence of Defaults and Conflicts. The (i) Neither the Company nor any of its Subsidiaries is not (A) in violation of its charter or by-laws or similar organizational documents 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 or any 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 or any Subsidiary is subject (collectively, “Agreements and Instruments”) ), except for such defaults in the case of this clause (i)(B) as would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and (ii)(A) the execution, delivery and performance of this Agreement or of any Terms Agreement and the consummation of the transactions contemplated herein or in any Terms Agreement and in the Registration Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described in the Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with 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 or any Subsidiary pursuant to, the Agreements and Instruments Instruments, (except for such conflicts, breaches, Repayment Events or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), B) nor will such action result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Company or any Subsidiary, and (C) 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 or any Subsidiary or any of its their assets, properties or operations, except for such conflicts, breaches, violations and defaults in the case of clauses (ii)(A) and (C) as 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 behalf) the right to require the repurchase, redemption or repayment (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any Subsidiary.

Absence of Defaults and Conflicts. The Neither the Company nor any of its Significant Subsidiaries is not in violation of its charter or 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 or any 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 or any Significant Subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Agreement and the Deposit Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Deposit Agreement and the Shares 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 or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults 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 charter or by-laws of the Company or any subsidiary or, except for such violations that would not result in a 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 the Company or any subsidiary or any of its 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any subsidiary.

Absence of Defaults and Conflicts. The Neither the Company nor any of its Subsidiaries is not in violation of its charter or by-laws 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 or any 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 or any of its Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 Statement, the Statutory Prospectus and the Prospectus (including the issuance and sale of the Securities Securities, and the use of the proceeds from the sale of the Securities as described in the Disclosure Package Statutory Prospectus and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with 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 or any of its Subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults 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 charter or by-laws organizational documents of the Company or any of its Subsidiaries or (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 or any of its Subsidiaries or any of their assets, properties or operations, except in the case of clause (B) only, 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any of its Subsidiaries.

Absence of Defaults and Conflicts. The Company None of the Company, the Operating Partnership or any Subsidiary is not in violation of its charter or declaration of trust, partnership agreement, charter, by-laws or other governing instrument ("Governing Instruments") 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, the Operating Partnership or any Subsidiary 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 Company, the Operating Partnership or any Subsidiary is subject (collectively, “"Agreements and Instruments”") except for such violations or defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 Prospectus (including the issuance and sale of the Securities and the use of the 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 the Company and the Operating Partnership with its their respective obligations hereunder have been duly authorized by all necessary corporate requisite 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, the Operating Partnership or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults 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 charter or by-laws Governing Instruments of the Company Company, the Operating Partnership or any Subsidiary or 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, the Operating Partnership or any Subsidiary or any of its 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a material portion of such indebtedness by the Company, the Operating Partnership or any Subsidiary.

Absence of Defaults and Conflicts. The Neither the Company nor any Significant Subsidiary is not in violation of its charter or 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 it is a party or by which it may be bound or to which any of the property or assets of the Company is subject (collectivelyits properties may be subject, “Agreements and Instruments”) except for such defaults as that would not have a material adverse effect on the financial condition, financial earnings or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); . The execution and the execution, delivery and performance of this Agreement and the Indenture by the Company, the issuance and delivery of the Securities, the consummation by the Company of the transactions contemplated herein in this Agreement, in the Prospectus and in the Registration Statement (including the issuance and sale of the Securities and the use of the 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 the Company with its obligations hereunder the terms of this Agreement and the Indenture, have been duly authorized by all necessary corporate action on the part of the Company and do not and will notnot result in any violation of the charter or by-laws of the Company or any Significant Subsidiary, whether with and do not and will not conflict with, or without result in a breach of any of the giving of notice terms or passage of time or bothprovisions of, 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 pursuant toor any Significant Subsidiary under (A) any contract, the Agreements and Instruments (except for such conflictsindenture, breachesmortgage, Repayment Events loan agreement, note, lease or defaults other agreement 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 charter or by-laws of instrument to which the Company or any Significant Subsidiary is a party or by which it may be bound or to which any of its properties may be subject or (B) any existing applicable law, statute, rule, regulation, judgment, order, writ order or decree of any government, government governmental instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of 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 (Significant Subsidiary or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of their respective properties (through acceleration or otherwise)except for, in each case prior case, such violations, conflicts, breaches or defaults or liens, charges or encumbrances that would not have a material adverse effect on the financial condition, earnings or business affairs of the Company and its subsidiaries, considered as one enterprise and that would not have a material adverse effect on the ability of the Company to perform its stated maturityobligations under this Agreement, of all or a portion of such indebtedness by the CompanyIndenture and the Securities).

Absence of Defaults and Conflicts. The Company is not in violation of its charter or 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 is a party or by which it may be bound bound, or to which any of the property or assets of the Company is subject (collectively, “Agreements and Instruments”) except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 (including the issuance and sale of the Securities and the use of the 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 the Company with 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 pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults 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 charter or by-laws of the Company or 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 or any of 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the Company.

Absence of Defaults and Conflicts. The Neither the Company nor any of its Significant Subsidiaries is not in violation of its charter or 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 or any 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 or any Significant Subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 (including the issuance and sale of the Securities and the use of the 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 with 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 or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults 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 charter or by-laws of the Company or any subsidiary or, except for such violations that would not result in a 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 the Company or any subsidiary or any of its 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any subsidiary.

Absence of Defaults and Conflicts. The Company Fund is not in violation of its charter or by-laws 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 Fund is a party or by which it or its properties may be bound bound, or to which any of the property or assets of the Company Fund is subject (collectively, “Agreements and Instruments”) ), except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Agreement, the Investment Advisory and Management Agreement, the Transfer Agency Agreement and the Custody Agreement referred to in the Registration Statement (as used herein, the “Advisory Agreement,” the “Transfer Agency Agreement” and the “Custody Agreement,” respectively) and the consummation of the transactions contemplated herein in this Agreement and in the Registration Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described in the Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company Fund with 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 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 Fund pursuant to, to the Agreements and Instruments (except for such conflicts, breaches, Repayment Events breaches or defaults 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 charter or the by-laws of the Company Fund, or 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 Fund or any of its assets, properties or operationsoperations (collectively, the “Laws” except for such Laws which 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 behalf) the right to require the repurchase, redemption or repayment (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyFund.

Absence of Defaults and Conflicts. The Company None of the Company, the Operating Partnership or any of the Subsidiary Entities is not in violation of its charter or charter, by-laws laws, agreement of limited liability company, agreement of limited partnership or other organizational documents or 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 Company, the Operating Partnership or any of the Subsidiary Entities 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 Company, the Operating Partnership or any of the Subsidiary Entities is subject (collectivelysubject, “Agreements and Instruments”) except for any such defaults as violation or default that would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiariesCompany, if any, the Operating Partnership or the Subsidiary Entities considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); enterprise and the execution, delivery and performance of this Agreement Agreement, the applicable Terms Agreement, if any, and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Disclosure Package and the Prospectus under the caption “Use of Proceeds”) therein and compliance by the Company and the Operating Partnership (with its respect to this Agreement), each severally, with obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not action, 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 Company, the Operating Partnership or any of the Subsidiary Entities pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Agreements and Instruments (Company, the Operating Partnership or any of the Subsidiary Entities is a party or by which any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any of the Subsidiary Entities is subject, except for any such conflicts, breaches, Repayment Events violation or defaults or liens, charges or encumbrances default that would not result in have a Material Adverse Effect)material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company, the Operating Partnership or the Subsidiary Entities considered as one enterprise, nor will such action result in any violation of the provisions charter, by-laws, the agreement of limited partnership or other organizational documents of the charter Company, the Operating Partnership or by-laws any of the Company Subsidiaries Entities or any applicable law, statuteadministrative regulation or administrative or court decree, ruleexcept for any such violation or default that would not have a material adverse effect on the condition, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of 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 (through acceleration financial or otherwise), in each case prior to its stated maturityor the earnings, business affairs or business prospects of all or a portion of such indebtedness by the Company, the Operating Partnership or the Subsidiary Entities considered as one enterprise.

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not in violation of its charter or by-laws laws; neither the Company nor any of its subsidiaries is 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 or any subsidiary or any of their assets, properties or operations, or is (nor will any of them, with the giving of notice or passage of time, be) 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 or any of its subsidiaries is a party or by which it or they may be bound or to which any of the property or assets of the Company or any subsidiary is subject (collectively, “"Agreements and Instruments”) "), except for such defaults as or violations that would not have neither result in a material adverse effect on Material Adverse Effect nor affect the condition, financial or otherwise, or on the earnings, business affairs or business prospects validity of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in issuance of the ordinary course of business (a “Material Adverse Effect”)Securities; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the 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 the Company with 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 or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults or liens, charges or encumbrances that would not neither result in a Material Adverse EffectEffect nor affect the validity of the issuance of the Securities), nor will such action result in any violation of the provisions of the charter or by-laws of the Company or any subsidiary or 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 or any subsidiary or any of its their assets, properties or operationsoperations (except for such violations that would neither result in a Material Adverse Effect nor affect the validity of the issuance of the Securities). 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 's behalf) the right to require the repurchase, redemption or repayment (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness (other than with respect to the Lease Financing) by the CompanyCompany or any subsidiary.

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not in violation of its charter or 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 or any 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 or any subsidiary is subject (collectively, “Agreements and Instruments”) except for such violations or defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 (including the issuance and sale of the Securities and by the use of the proceeds from the sale of the Securities as described in the Disclosure Package and the Prospectus under the caption “Use of Proceeds”Selling Shareholders) and compliance by the Company with 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 (“Lien”) upon any property or assets of the Company or any subsidiary pursuant to, or require any consent under or permit any third party to terminate, any of the Agreements and Instruments (Instruments, except for such conflicts, breaches, defaults, Repayment Events Events, Liens, consents or defaults or liens, charges or encumbrances terminations that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws of the Company or any subsidiary or 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 or any subsidiary or any of its 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any subsidiary.

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not in violation of its charter or by-laws bylaws, its partnership agreement, declaration of trust or trust agreement, or its limited liability company agreement (or other similar agreement), 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 or any of its subsidiaries is a party or by which it any of them may be bound or to which any of the property respective properties or assets of the Company or any subsidiary is subject (collectively, “Agreements and Instruments”) ), except for such defaults as that would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 therein (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Disclosure Package Statutory Prospectus and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with 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 or any subsidiary pursuant to, the Agreements and Instruments (any Agreement or Instrument, except for such conflicts, breaches, Repayment Events breaches or defaults 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 charter or by-laws bylaws of the Company or any applicable law, statute, rule, regulation, or governmental or court judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its assets, properties or operationsdecree. 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any subsidiary of the Company or any of its subsidiaries.

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not in violation of its charter or charter, by-laws laws, operating agreement or partnership agreement, as applicable, 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 or any 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 or any of its subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 issuance, sale and sale delivery of the Securities and the use of the proceeds to the Company from the sale of the Securities as described in the Disclosure Package and the Prospectus therein under the caption “Use of Proceeds”) and compliance by the Company and the Operating Partnership with its their respective obligations hereunder have been duly authorized by all necessary corporate action and did not, 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 or any of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults 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 charter or charter, by-laws laws, partnership agreement or operating agreement of the Company or any of its subsidiaries or 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 or any 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any of its subsidiaries.

Absence of Defaults and Conflicts. The Neither the Company nor its subsidiary is not (A) in violation of its articles of incorporation, charter or 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 or its subsidiary 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 or any subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Underwriting Agreement by the Company and the Bank 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 and the use of the 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 compliance by the Company and the Bank with its their 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 or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events breaches or defaults 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 charter or by-laws of the Company or any subsidiary or 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 or any subsidiary or any of its 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 obligation of the Company or its subsidiary (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such note, debenture or other evidence of indebtedness or obligation by the CompanyCompany or the subsidiary.

Absence of Defaults and Conflicts. The Company is not in violation of its charter or by-laws bylaws 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 is a party or by which it may be bound bound, or to which any of the property or assets of the Company is subject (collectively, “Agreements and Instruments”) except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 (including the issuance and sale of the Securities and the use of the 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 the Company with 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 pursuant to, to the Agreements and Instruments (except for such conflicts, breaches, Repayment Events or defaults 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 charter or by-laws bylaws of the Company or 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 or any of its their assets, properties or operationsoperations (except 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 behalf) the right to require the repurchase, redemption or repayment (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the Company.

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not in violation of its charter or by-laws bylaws, its partnership agreement, declaration of trust or trust agreement, or its limited liability company agreement (or other similar agreement), 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 or any of its subsidiaries is a party or by which it any of them may be bound or to which any of the property respective properties or assets of the Company or any subsidiary is subject (collectively, “Agreements and Instruments”) ), except for such defaults as that would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 therein (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Disclosure Package Statutory Prospectus and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with 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 or any subsidiary pursuant to, the Agreements and Instruments (any agreement or instrument, except for such conflicts, breaches, Repayment Events breaches or defaults 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 charter or by-laws bylaws of the Company or 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 or any of and its assets, properties or operationssubsidiaries 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any subsidiary of the Company or any of its subsidiaries.

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not in violation of its charter or 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 or any 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 or any subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults as that would not have reasonably be expected to result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Agreement Agreement, the Indenture, the Securities and the Pledged Bonds and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the 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 the Company with its obligations hereunder and under the Indenture, the Securities and the Pledged Bonds 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 or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults or liens, charges or encumbrances that would not reasonably be expected to result in a Material Adverse Effect), nor will such action result in (x) any violation of the provisions of the charter or by-laws of the Company or any subsidiary or (y) 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 or any subsidiary or any of its their assets, properties or operationsoperations (except for such violations in the case of clause (y) 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any subsidiary.

Absence of Defaults and Conflicts. The None of the Company or any of the Significant Subsidiaries is not in violation of its charter charter, bylaws, or by-laws other organizational documents, as the case may be; none of the Company or any of the Significant 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 it is a party or by which it may be or any of them is bound or to which any of the property their respective properties or assets of the Company is subject (collectively, “Agreements and Instruments”) ), except for such defaults as under Agreements and Instruments that would not not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Agreement and the Indenture by the Company, the issuance, execution, sale and delivery of the Offered Securities by the Company, the consummation by the Company of the transactions contemplated herein and in by this Agreement, the Registration Statement (including the issuance and sale of the Securities Indenture and the use of the proceeds from the sale of the Securities as described in the Disclosure Package and the Prospectus under the caption “Use of Proceeds”) Offered Securities, and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action the terms of this Agreement, the Indenture and the Offered Securities, 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 Debt Repayment Triggering 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 or Significant Subsidiaries pursuant to, the any Agreements and Instruments (Instruments, except for such violations, conflicts, breaches, defaults, Debt Repayment Triggering Events or defaults or liens, charges or encumbrances Liens that would not result not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect), nor will such action the same result in any violation by the Company or its subsidiaries of any applicable laws, statutes, rules, regulations, judgments, orders, writs or decrees of any Governmental Entity, except for violations that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, or any violation of the provisions of the charter charter, bylaws or by-laws other organizational documents of the Company or any applicable lawSignificant Subsidiary; it being understood that, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its assets, properties or operations. As 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 would give, the holder of any note, debenture debenture, or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any of its subsidiaries.

Absence of Defaults and Conflicts. The Company is not in violation of its charter or by-laws or (the "Organizational Documents") and is not 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 is a party or by which it may be bound bound, or to which any of the property or assets of the Company is subject (collectively, “"Agreements and Instruments”) "), except for defaults with respect to such defaults as Agreements and Instruments that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 (including the issuance and sale of the Securities Securities, the sale of the Sponsor Warrants in the Private Placement, and the use of the proceeds from the sale of the Securities and the sale of the Sponsor Warrants as described in the Disclosure Package Statutory Prospectus and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company with its obligations hereunder and with its obligations under the Subscription 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 pursuant to, the Agreements and Instruments (Instruments, except for such conflicts, breaches, defaults or Repayment Events or defaults 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 charter or by-laws of the Company or 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 or any of 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 's behalf) the right to require the repurchase, redemption or repayment (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the Company.

Absence of Defaults and Conflicts. The Neither the Company nor any of its Subsidiaries is not in violation of its (i) their respective charter or by-laws 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 or any 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 or any subsidiary is subject (collectively, “Agreements and Instruments”), except with respect to clause (ii) except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 General Disclosure Package and the Prospectus (including the issuance and sale of the Concurrent Securities and the Securities to be purchased by the Underwriters from the Company and the use of the proceeds from the their 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 with 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 or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults 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 charter or by-laws of the Company or any subsidiary or 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 or any subsidiary or any of its 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any subsidiary.

Absence of Defaults and Conflicts. The Neither the Company nor any of its significant subsidiaries is not (i) in violation of its charter or by-laws 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 or any of its subsidiaries is a party or by which it may be bound bound, or to which any of the property or assets of the Company or any of its subsidiaries is subject (collectively, “Agreements and Instruments”) ), except for such defaults as that would not have reasonably be expected to result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Disclosure Package and the Prospectus under the caption “Use of Proceeds”Securities) and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action of the Company 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 pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults 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 charter or by-laws of the Company or or, except as would not reasonably be expected to result in a 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 the Company or any of 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the Company.

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not in violation of its charter or 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 or any 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 or any of its subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Agreement Agreement, the Indenture, the Securities and the Replacement Capital Covenant and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the 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 the Company with its obligations hereunder and under the Indenture, the Securities and the Replacement Capital Covenant 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 cause 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 or any of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults 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 charter or by-laws of the Company or any of its subsidiaries or 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 or any 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any of its subsidiaries.

Absence of Defaults and Conflicts. The Company Trust is not in violation of the trust certificate of the Trust filed with the State of Delaware (the "Trust Certificate") or the Declaration, and neither the Company nor the Bank is in violation of its charter or by-laws by- laws; none of the Trust, the Company or the Bank 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 it is a party or by which it or any of them may be bound bound, or to which any of the its property or assets of the Company is subject (collectively, “"Agreements and Instruments”) "), except for such defaults as under Agreements and Instruments that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 Preferred Securities, the Junior Subordinated Debentures, and the Preferred Securities Guarantee, the consummation of the transactions contemplated herein and in by the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Disclosure Package and the Prospectus under the caption “Use of Proceeds”) Operative Documents and compliance by the Company Offerors with its obligations hereunder 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, at the Closing Time, 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 security interest, mortgage, pledge, lien, charge charge, encumbrance, claim or encumbrance equitable right upon any property or assets of the Trust, the Company or any of its subsidiaries pursuant to, to any of the Agreements and Instruments (except for such conflicts, breaches, Repayment Events breaches or defaults 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 charter or by-laws of the Company or any of its subsidiaries or the Declaration or the Trust Certificate, or violation by the Company or any of its subsidiaries of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government authority, agency or instrumentality or court, domestic or foreign, including, without limitation, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation and the Commissioner of Banks of the Commonwealth of Massachusetts, having jurisdiction over the Company Trust, the Company, the Company's subsidiaries, or any of its assetstheir respective properties (collectively, properties or operations"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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyTrust, the Company or any of its subsidiaries.

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not in violation of its charter or by-laws bylaws, its partnership agreement, declaration of trust or trust agreement, or limited liability company agreement (or other similar agreement), 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 or any of its subsidiaries is a party or by which it any of them may be bound or to which any of the property respective properties or assets of the Company or any subsidiary is subject (collectively, “Agreements and Instruments”) ), except for such defaults as that would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 therein (including the issuance and sale of the Securities and the use of the 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 the Company with 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 or any subsidiary pursuant to, the Agreements and Instruments (any Agreement or Instrument, except for such conflicts, breaches, Repayment Events breaches or defaults 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 charter or by-laws bylaws of the Company or any applicable law, statute, rule, regulation, or governmental or court judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its assets, properties or operationsdecree. 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any subsidiary of the Company or any of its subsidiaries.

Absence of Defaults and Conflicts. The Company is not in violation of its charter or 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 is a party or by which it may be bound bound, or to which any of the property or assets of the Company is subject (collectively, “Agreements and Instruments”) except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 (including the issuance and sale of the Securities and the use of the 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 the Company with 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 pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in (x) any violation of the provisions of the charter or by-laws of the Company or (y) 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 or any of its material 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the Company.

Absence of Defaults and Conflicts. The Neither the Company nor any of the Subsidiaries is not in violation of its respective charter or by-laws (or similar constituting 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 or any of the Subsidiaries is a party or by which it may be bound or any of them is bound, or to which any of the property or assets of the Company or any Subsidiary is subject (collectively, “Agreements and Instruments”) except for such violations or defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Agreement or the Warrant Indenture and the consummation of the transactions contemplated herein and therein and in the Registration Statement General Disclosure Package and the Final Prospectuses (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the General Disclosure Package and the Prospectus Final Prospectuses under the caption “Use of Proceeds”) and compliance by the Company with 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 or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in (a) any violation of the provisions of the charter or by-laws (or similar constituting documents) of the Company or any Subsidiary or (b) any violation 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 the Company or any Subsidiary or any of its their assets, properties or operations, except in the case of (b) 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any Subsidiary.

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not in violation of its charter or by-laws bylaws, its partnership agreement, declaration of trust or trust agreement, or its limited liability company agreement (or other similar agreement), 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 or any of its subsidiaries is a party or by which it any of them may be bound or to which any of the property respective properties or assets of the Company or any subsidiary is subject (collectively, “Agreements and Instruments”) ), except for such defaults as that would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Agreement Agreement, the Agency Agreement, the Indenture and the Securities and the consummation of the transactions contemplated herein and in the Registration Statement therein (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Disclosure Package Statutory Prospectus and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with 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 or any subsidiary pursuant to, the Agreements and Instruments (any agreement or instrument, except for such conflicts, breaches, Repayment Events breaches or defaults 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 charter or by-laws bylaws of the Company or 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 or any of and its assets, properties or operationssubsidiaries 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any subsidiary of the Company or any of its subsidiaries.

Absence of Defaults and Conflicts. The Company is not in violation of its charter Articles of Incorporation, as amended (the “Charter”), or by-laws Bylaws, as amended (the “Bylaws”); none of the Subsidiaries is in violation of its charter, bylaws or other organizational documents and 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 or any 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 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 as would not have a material adverse effect on the conditionthat could not, financial singly or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 (including the issuance and sale of the Securities and the use of the 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 the Company with 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 or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events breaches or defaults or liens, charges or encumbrances that would not could 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 charter Charter or by-laws Bylaws of the Company or the charter, bylaws or other organizational document of any 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 or any Subsidiary or any of its their assets, properties or operationsoperations (except for such violations that could 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any Subsidiary.

Absence of Defaults and Conflicts. The Neither the Company nor any of its Subsidiaries is not in violation of its charter or by-laws 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 or any 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 or any of its Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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, the issuance, if applicable, of Common Shares upon conversion of the Securities and the use of the 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 and the Operating Partnership with its their respective 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 or any of its Subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of (i) the provisions of the charter or by-laws organizational documents of the Company or any of its Subsidiaries or (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 or any of its Subsidiaries or any of their assets, properties or operations, except in the case of clause (ii) only, 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any of its Subsidiaries.

Absence of Defaults and Conflicts. The Neither the Company nor any Subsidiary is not in violation of any provision of its charter or 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 or any of the 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 or any Subsidiary is subject subject, including, without limitation, the agreements described in paragraph (xiv) below (collectively, the “Agreements and Instruments”) except for such defaults that have been waived or suspended as would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising described in the ordinary course of business (Prospectus and that would not, singly or in the aggregate, 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 (including the issuance and sale of the Securities and the use of the 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 the Company with 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 or any Subsidiary pursuant to, any of the Agreements and Instruments (except for such conflicts, breaches, Repayment Events breaches or defaults 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 charter or by-laws of the Company or any Subsidiary or 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 or any Subsidiary (including the rules, regulations and requirements of its the United States Federal Reserve System (the “Federal Reserve”) and the banking laws and regulations of the State of Illinois and the banking laws and regulations of other applicable jurisdictions) 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the Company or any Subsidiary. Each of the Agreements and Instruments is in full force and effect and is valid and enforceable by and against the Company or any of the Subsidiaries, as the case may be, and, to the knowledge of the Company, the other parties thereto, in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles.

Absence of Defaults and Conflicts. The (a) Neither the Company nor any of its Subsidiaries is not in violation of its charter or by-laws (the “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 or any 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 or any Subsidiary is subject (collectively, “Agreements and Instruments”) except ), except, in the case of the Agreements and Instruments, for such violations and defaults as would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and (b)(i) the execution, delivery and performance of this Agreement or of any Terms Agreement and the consummation of the transactions contemplated herein or in any Terms Agreement and in the Registration Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described in the Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with 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 or any Subsidiary pursuant to, the Agreements and Instruments Instruments, (except for such conflicts, breaches, Repayment Events or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), ii) nor will such action result in any violation of the provisions of the charter or by-laws of the Company or any Subsidiary, (iii) 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 or any Subsidiary or any of its their assets, properties or operationsoperations (each, a “Governmental Entity”), except in the case of clauses (b)(i) and (b)(iii) above, such violation or default as 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any Subsidiary.

Absence of Defaults and Conflicts. The Company is not in violation of its charter Amended and Restated Certificate of Incorporation filed on [·], 2006 (the “Charter”) or its by-laws laws, as amended (the “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 is a party or by which it may be bound bound, or to which any of the property or assets of the Company is subject (collectively, “Agreements and Instruments”) except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities and the Units and Warrants to be sold pursuant to the Private Placement Agreement as described in the Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and with its obligations under the Private Placement 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 pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events breaches or defaults 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 charter Charter or byBy-laws of the Company or 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 or any of 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the Company.

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not in violation of its charter or 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 it is a party or by which it may be bound or to which any of the property or assets of the Company is its properties may be subject (collectively, “the "Agreements and Instruments”) "), except for such defaults as that would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the . The execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the 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 the Company with 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 or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events breaches or defaults 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 charter or by-laws of the Company or any subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ order or decree of any government, government governmental instrumentality or court, domestic or foreign, having jurisdiction over the Company or any subsidiary or any of its 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any subsidiary.

Absence of Defaults and Conflicts. The Company is not in --------------------------------- violation of its charter or by-laws bylaws 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 is a party or by which it may be bound bound, or to which any of the property or assets of the Company is subject (collectively, “"Agreements and Instruments”") except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 (including the issuance and sale of the Securities and the use of the 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 the Company with 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 pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events breaches or defaults 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 charter or by-laws bylaws of the Company or 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 or any of 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 's behalf) the right to require the repurchase, redemption or repayment (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the Company.

Absence of Defaults and Conflicts. The Neither the Company nor any of the Subsidiaries is not in violation of its respective charter or by-laws (or similar constituting 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 or any of the Subsidiaries is a party or by which it may be bound or any of them is bound, or to which any of the property or assets of the Company or any Subsidiary is subject (collectively, “"Agreements and Instruments”") except for such violations or defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Agreement or the Warrant Indenture and the consummation of the transactions contemplated herein and therein and in the Registration Statement General Disclosure Package and the Final Prospectuses (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the General Disclosure Package and the Prospectus Final Prospectuses under the caption “"Use of Proceeds”") and compliance by the Company with 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 or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in (a) any violation of the provisions of the charter or by-laws (or similar constituting documents) of the Company or any Subsidiary or (b) any violation 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 the Company or any Subsidiary or any of its their assets, properties or operations, except in the case of (b) 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 's behalf) the right to require the repurchase, redemption or repayment (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any Subsidiary.

Absence of Defaults and Conflicts. The Neither the Company nor --------------------------------- any of its Subsidiaries is not in violation of its charter or 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 or any 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 or any Subsidiary is subject (collectively, “"Agreements and Instruments”") except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Agreement and the International Purchase Agreement and the consummation of the transactions contemplated herein in this Agreement, the International Purchase Agreement and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Disclosure Package and the Prospectus Prospectuses under the caption “"Use of Proceeds”") and by the Transactions and compliance by the Company with its obligations hereunder under this Agreement and the International Purchase 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 or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults 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 charter or by-laws of the Company or any Subsidiary or 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 or any Subsidiary or any of its 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any Subsidiary.

Absence of Defaults and Conflicts. The Neither the Company nor any of --------------------------------- its Subsidiaries is not in violation of its charter or 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 or any 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 or any Subsidiary is subject (collectively, “"Agreements and Instruments”") except for such violations or defaults as that would not have reasonably be expected to result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Agreement and the International Purchase Agreement and the consummation of the transactions contemplated herein in this Agreement, the International Purchase Agreement and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Disclosure Package and the Prospectus Prospectuses under the caption “"Use of Proceeds”") and compliance by the Company with its obligations hereunder under this Agreement and the International Purchase 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 or any Subsidiary pursuant to, the Agreements and Instruments (except for such violations, conflicts, breaches, Repayment Events breaches or defaults 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 charter or by-laws of the Company or any Subsidiary or any applicable law, statutestatute binding upon, or, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary or any of its their assets, properties or operations, except for such defaults, which 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 's behalf) the right to require the repurchase, redemption or repayment (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any Subsidiary.

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not in violation of its respective charter or 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 or any 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 or any of its subsidiaries is subject (collectively, “Agreements and Instruments”) ), except for such violations or defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Agreement and the North Wxxx PSA and the consummation of the transactions contemplated herein and therein and in the Registration Statement (including the offering, issuance and sale of the Securities pursuant to this Agreement and the use of the proceeds to the Company from the sale of the Securities as described in the Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and Wxxxxxx Oil and Gas with its their respective 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 or any of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults 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 charter or by-laws of the Company or any of its subsidiaries or 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 or any of its 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any of its subsidiaries.

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not in violation of its charter or by-laws bylaws, its partnership agreement, declaration of trust or trust agreement, or its limited liability company agreement (or other similar agreement), 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 or any of its subsidiaries is a party or by which it any of them may be bound or to which any of the property respective properties or assets of the Company or any subsidiary is subject (collectively, “Agreements and Instruments”) ), except for such defaults as that would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 therein (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Disclosure Package Statutory Prospectus and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with 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 or any subsidiary pursuant to, the Agreements and Instruments (any Agreement or Instrument, except for such conflicts, breaches, Repayment Events breaches or defaults 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 charter or by-laws bylaws of the Company or any applicable law, statute, rule, regulation, or governmental or court judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its assets, properties or operationsdecree. 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any subsidiary of the Company or any of its subsidiaries.

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not (A) in violation of its charter or by-laws laws, or (B) except for such defaults that would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, 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 or any 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 or any subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults as would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 and the use of the 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 the Company with its obligations hereunder 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 or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults or liens, charges or encumbrances that would not be reasonably likely to result in a Material Adverse Effect), nor will such action result in (C) any violation of the provisions of the charter or by-laws of the Company or any subsidiary or (D) except for such violations that would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, 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 or any subsidiary or any of its 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the Company or any subsidiary of the Company.

Absence of Defaults and Conflicts. The Company is not in violation of the Charter or its charter or by-laws amended and restated bylaws as in effect on the 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 is a party or by which it may be bound bound, or to which any of the property or assets of the Company is subject (collectively, “Agreements and Instruments”) except for such defaults as would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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, the Purchase Options and the Trust Agreement, the issuance and sale of the Securities, the consummation of the transactions contemplated herein herein, therein, in the Registration Statement, in the Time of Sale Prospectus and in the Registration Statement Prospectus (including the issuance and sale of the Securities Private Placement Warrants and the use of the proceeds from the sale of the Securities therefrom as described in the Disclosure Package Time of Sale Prospectus and the Prospectus under the caption “Use of Proceeds”) and the compliance by the Company with 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 pursuant to, to the Agreements and Instruments (except for such conflictsInstruments, breaches, Repayment Events or defaults 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 charter Charter or by-laws of the Company Bylaws or 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 or any of 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the Company.

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not in violation of its charter respective certificate or articles of incorporation or 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 or any 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 or any subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults as would have not have resulted, and are not reasonably expected to result, in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Disclosure Package and the Prospectus under the caption “Use of Proceeds”Prospectus) and compliance by the Company with its obligations hereunder under the Indenture and under the terms of 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 or any of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events breaches or defaults 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 charter certificate or articles of incorporation or by-laws of the Company or any of its subsidiaries or 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 or any of its subsidiaries or any of their 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any of its subsidiaries.

Absence of Defaults and Conflicts. The Company None of the Transaction Entities nor any of their subsidiaries is not in violation of its charter or charter, by-laws or similar 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 a Transaction Entity or any 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 a Transaction Entity or any Subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Agreement the Transaction Documents and the consummation of the transactions contemplated herein therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the 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 each of the Company Transaction Entities with its obligations hereunder under the Transaction Documents, 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 Transaction Entities or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults 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 (a) the charter or charter, by-laws or similar organizational documents of the Company Transaction Entities or any Subsidiary or (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 any of the Company Transaction Entities or any Subsidiary or any of its 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by any of the CompanyTransaction Entities or any Subsidiary.

Absence of Defaults and Conflicts. The Neither the Company nor any Significant Subsidiary is not in violation of its charter Restated Certificate of Incorporation or byBy-laws 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 it is a party or by which it may be bound bound, or to which any of the its property or assets of the Company is subject (collectively, “"Agreements and Instruments”") except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Agreement Agreement, the Indenture and the Debt Securities, and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Debt Securities and the use of the proceeds from the sale of the Debt Securities as described in the Disclosure Package and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company with its obligations hereunder and under the Indenture and the Debt 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 or any Significant Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events or defaults 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 charter Restated Certificate of Incorporation or byBy-laws Laws of the Company or any Significant Subsidiary or 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 or any Significant Subsidiary or any of its 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any Significant Subsidiary, other than such events or conditions that are contemplated by the terms of this Agreement and the Indenture.

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not in violation of its charter or charter, by-laws or other governing agreements 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 or any 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 or any subsidiary is subject (collectively, “"Agreements and Instruments”") except for such defaults as that would not have reasonably be expected to result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Disclosure Package U.S. Prospectus and in the Canadian Prospectus under the caption “"Use of Proceeds”") and compliance by the Company with 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 or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults Event 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 charter or charter, by-laws or other governing agreements of the Company or any subsidiary, or 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 or any subsidiary or any of its 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the Company or any subsidiary of the Company.

Absence of Defaults and Conflicts. The Company is not in violation of its charter or charter, by-laws or other organizational documents. The Company is not 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 is a party or by which it the Company may be bound bound, or to which any of the property or assets of the Company is subject (collectively, “Agreements and Instruments”"AGREEMENTS AND INSTRUMENTS") except for such defaults as that would not have a material adverse effect on the condition, financial or otherwise, or on in the earnings, results of operations or business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterpriseCompany, whether or not arising in the ordinary course of business (a “Material Adverse Effect”"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 (including the issuance and sale of the Securities Notes and the use of the proceeds from the sale of the Securities Notes as described in the Disclosure Package and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate or other 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 pursuant to, to the Agreements and Instruments (except for such conflicts, breaches, defaults, Repayment Events or defaults 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 charter or charter, by-laws or other organizational documents of the Company or 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 or any of its their assets, properties or operations. As used herein, a “Repayment Event” "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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the Company.

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not in violation of its charter or by-laws bylaws 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 or any 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 or any of its subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Agreement Agreement, the Indenture and the Securities by the Company and the issuance of the Securities and Conversion Shares and the consummation of the transactions contemplated herein and in the Registration Statement Prospectus (including the issuance and sale of the Securities and the use of the 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 the Company with 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 or any of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or defaults 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 charter or by-laws of the Company or any of its subsidiaries or 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 or any 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any of its subsidiaries.

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not in violation of its charter or by-laws or other constituting or organizational 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 or any of its subsidiaries is a party 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 or any subsidiary of the Company is subject (collectively, “Agreements and Instruments”) ), except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Agreement each of the Transaction Documents 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 Time of Sale Information and the Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement Statement, the Time of Sale Information and the Prospectus (including the issuance and sale of the Securities by the Company and the use of the proceeds by the Company from the sale of the Securities as described in the Disclosure Package Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with 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 or any subsidiary of the Company pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse EffectEffect and which would not reasonably be expected to have a material adverse effect on the Company’s ability to perform its agreed upon obligations under this Agreement and the Forward Sale Agreement), nor will such action (i) result in any violation of the provisions of the charter or by-laws of the Company or 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 or any subsidiary of its the Company or any of their assets, properties or operations, except for any such violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of law which would not result in a Material Adverse Effect or (ii) result in any violation of the provisions of the charter or by-laws or other constituting or organizational instrument as in effect on the date hereof of the Company or any subsidiary of 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 behalf) the right to require the repurchase, redemption or repayment (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the Company or any subsidiary of the Company.

Absence of Defaults and Conflicts. The Company is not in violation of its charter certificate of incorporation (“Charter”), or by-laws or its bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any Subsidiary 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 is a party or by which it may be bound bound, or to which any of the property or assets of the Company is subject (collectively, “Agreements and Instruments”) except for such defaults as would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the . The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with 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 pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events or defaults 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 charter Charter or by-laws Bylaws of the Company or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company agreements), 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 or any Subsidiary or any of its 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the Company.

Absence of Defaults and Conflicts. The Company Depositor is not in violation of its charter or by-laws limited liability company 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 Company it is a party or by which it may be bound bound, or to which any of the property its properties, operations or assets of the Company is subject (collectively, the “Depositor Agreements and Instruments”) ), except for such violations or defaults as that, individually or in the aggregate, would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”)Effect with respect to the Depositor; and the execution, delivery and performance by the Depositor of the Depositor Agreements, this Agreement and the Securities, the consummation of the transactions contemplated herein and or therein, in the Registration Statement or in the Prospectus (including the issuance and sale of the Securities Offered Notes to the Underwriters pursuant to the terms of this Agreement and the use of the proceeds from the sale of the Securities therefrom as described in the Disclosure Package and the Prospectus under the caption heading “Use of Proceeds”” in the Preliminary Prospectus and the Prospectus) and compliance by the Company it with its obligations hereunder and thereunder have been duly and validly 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 a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge mortgage, pledge, charge, encumbrance, adverse claim or encumbrance other security interest (collectively, “Liens”) upon any of its property or assets of pursuant to the Company pursuant to, the Depositor Agreements and Instruments (except for such Liens permitted by the Basic Documents and conflicts, breaches, Repayment Events breaches or defaults that, individually or liensin the aggregate, charges or encumbrances that would will not result in a Material Adverse Effect)Effect with respect to the Depositor, nor will such action result in any violation of the provisions of the charter or by-laws of the Company its limited liability company agreement or 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 Depositor or any of 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyDepositor or CarMax LLC, as the case may be.

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not in violation of its charter or charter, by-laws or other 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 or any 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 or any subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Agreement Underwriting Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and in the Registration Statement Statement, the Pricing Disclosure Package and the Prospectus (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described in the Pricing Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and the Shares 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 or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults or liens, charges or encumbrances that as would not individually or in the aggregate result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or charter, by-laws or other organizational documents of the Company or any subsidiary or 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 or any subsidiary or any of its 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any subsidiary.

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not in violation of its charter or charter, by-laws laws, operating agreement or partnership agreement, as applicable, 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 or any 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 or any of its subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Agreement, the Forward Sale Agreement and any Additional Forward Sale Agreement and the consummation of the transactions contemplated herein herein, therein and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds to the Company from the sale of the Securities Shares as described in the Disclosure Package and the Prospectus therein under the caption “Use of Proceeds”) and compliance by the Company and the Operating Partnership with its their respective obligations hereunder and thereunder have been duly authorized by all necessary corporate action and did not, 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 or any of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults 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 charter or charter, by-laws laws, partnership agreement or operating agreement of the Company or any of its subsidiaries or 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 or any 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any of its subsidiaries.

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not in violation of its charter or 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 or any 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 or any subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Agreement and the Indenture and the consummation of the transactions contemplated herein herein, therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Disclosure Package and the Prospectus under the caption “Use of Proceeds”) Statement, and compliance by the Company with its obligations hereunder and under the Indenture 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 or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events breaches or defaults 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 charter or by-laws of the Company or any subsidiary or 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 or any subsidiary or any of its 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any subsidiary.

Absence of Defaults and Conflicts. The Company Celldex is not in violation of its charter or 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 it is a party or by which it any of them may be bound bound, or to which any of the property or assets of the Company Celldex is subject (collectivelysubject, “Agreements and Instruments”) except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 (including the issuance and sale of the Securities and the use of the 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 the Company with its obligations hereunder have been duly authorized by all necessary corporate action and herein, do not and will not, whether with or without the giving of notice or passage the lapse of time time, or both, (A) conflict with any term or constitute provision of Celldex’s Certificate of Incorporation; (B) result in a breach of, or constitute a default or Repayment Event (as defined below) under, result in the termination or modification of, result in the creation or imposition of any lien, security interest, charge or encumbrance upon any property or assets of the Company properties of Celldex or require any payment by Celldex or impose any liability on Celldex pursuant to, the Agreements and Instruments (any contract, indenture, mortgage, deed of trust, commitment or other agreement or instrument to which Celldex is a party or by which any of its properties are bound or affected other than this Agreement, except for where such conflictsbreach, breachesdefault, Repayment Events modification, termination, lien, security interest, charge, encumbrance, payment or defaults or liens, charges or encumbrances that would liability could not result in reasonably be expected to have a Material Adverse Effect), nor will such action result in any violation ; (C) assuming compliance with the rules of the provisions NASD applicable to the offer and sale of the charter or by-laws of the Company or Securities, violate any applicable law, statute, rule, regulation, judgment, order, writ order or decree of any governmentgovernment or governmental agency, government instrumentality or court, domestic or foreign, having jurisdiction over the Company Celldex or any of its assets, properties or operations. As used hereinbusinesses, except where such violation could not reasonably be expected to have a “Repayment Event” means Material Adverse Effect; or (D) result in a breach, termination or lapse of Celldex’s corporate power and authority to own or lease and operate its properties and conduct its business in any event or condition which gives material respect, except as disclosed in 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyProspectus.

Absence of Defaults and Conflicts. The (a) Neither the Company nor the Significant Subsidiaries is not (i) in violation of its charter or by-laws laws, (ii) in default, and no event has occurred that, with notice or in default lapse of time or both, would constitute such a 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 or the 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 or the Significant Subsidiaries is subject (collectively, “Agreements and Instruments”) ), except for such defaults as default that would not not, individually or in the aggregate, have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”), or (iii) 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 or the Significant Subsidiaries or any of their assets, properties or operations, except for such violation that would not, individually or in the aggregate, have a Material Adverse Effect; (b)(i) and the execution, delivery and performance of this Agreement or of any Terms Agreement and the consummation of the transactions contemplated herein or in any Terms Agreement and in the Registration Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described in the Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with 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 or the Significant Subsidiaries pursuant to, the Agreements and Instruments Instruments, (except for such conflicts, breaches, Repayment Events or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), ii) nor will such action result in any violation of the provisions of the charter or by-laws of the Company or the Significant Subsidiaries, (iii) 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 or the Significant Subsidiaries or any of its their assets, properties or operations, except for such violation that would not, individually or in the aggregate, 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 behalf) the right to require the repurchase, redemption or repayment (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or the Significant Subsidiaries.

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not in violation of its charter articles or by-laws or other constating documents nor in material 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 the Company or any 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 or the Material Entities is subject (collectively, “Agreements and Instruments”) except for such defaults as would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the . The execution, delivery and performance of this Agreement Agreement, the Registration Statement and the Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Disclosure Package and the Prospectus under the caption “Use of Proceeds”) therein and compliance by the Company with its obligations hereunder hereunder, have been duly authorized by all necessary corporate action by the Company, 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 or, except as described in the Registration Statement and the Prospectus, Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge lien or other encumbrance upon any property or assets of the Company or the Material Entities pursuant to, to the Agreements and Instruments (except for such conflicts, breaches, Repayment Events or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect)Instruments, nor will such action result in any violation of or conflict with the provisions of the charter articles or by-laws or other constating documents of the Company or the Material Entities or any existing applicable law, statute, rule, regulation, judgment, order, writ or decree of any governmentgovernmental authority, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or the Material Entities or any of its 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or the Material Entities.

Absence of Defaults and Conflicts. The None of the Company or any of the Subsidiaries is not (A) in violation of its charter articles of incorporation, board of directors’ regulations, board of corporate auditors’ regulations, share handling regulations or by-laws similar organizational documents, 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 or any of the Subsidiaries is a party or by which it the Company or any of the Subsidiaries may be bound bound, or to which any of the property or assets of the Company or any of the Subsidiaries is subject (collectively, “Agreements and Instruments”) except except, in the case of clause (B) above, for such violations or defaults as that would not have a material adverse effect on the conditionnot, financial singly or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (aggregate, result in a “Material Adverse Effect”); and the execution, delivery and performance of this Agreement and the Japanese Underwriting Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Disclosure Package and the Prospectus under the caption “Use of Proceeds”) Deposit Agreement and compliance by the Company with its obligations hereunder and thereunder 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, 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 or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults 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 charter articles of incorporation, board of directors’ regulations, board of corporate auditors’ regulations, share handling regulations or by-laws other organizational documents, if any, of the Company or any of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic Japanese or foreign, having jurisdiction over the Company or any Subsidiary or any of its their respective 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any subsidiary.

Absence of Defaults and Conflicts. The Company None of the Depositor, the Depositor General Partner, RTR I LP or the RTR General Partner is not in violation of its charter limited liability company agreement, bylaws or by-laws the related Partnership Agreement, 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 it is a party or by which it may be bound, or to which any of its properties or assets is subject, except for violations or defaults that, individually or in the aggregate, have not had, and are not reasonably expected to have, a material adverse effect on their collective condition, financial or otherwise, earnings, business affairs or business prospects; the execution, delivery and performance by each of the Depositor, the Depositor General Partner, RTR I LP or the RTR General Partner, as the case may be, of this Agreement, the related Partnership Agreement, each Basic Document to which it is a party and the Securities, the consummation of the transactions contemplated herein and therein or in the Prospectus and compliance by each of them with its obligations hereunder and thereunder have been duly and validly authorized by all necessary action (corporate or otherwise) and will not conflict with or constitute a breach of, a default under, or result in the creation or imposition of any Lien (except as permitted by the Basic Documents) upon any of its property or assets pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it may be a party, by which it may be bound or to which any of the property its properties or assets of the Company is subject (collectivelysubject, “Agreements and Instruments”) except for such conflicts, breaches, defaults as would or Liens that, individually or in the aggregate, will not have a material adverse effect on the their collective condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 (including the issuance and sale of the Securities and the use of the 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 the Company with 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 pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect)prospects, nor will such action result in any violation of the provisions of the charter entity’s limited liability company agreement or by-laws of the Company related Partnership Agreement, as the case may be, or any applicable law, statute, rule, regulation, judgment, order, writ administrative regulation or decree of any government, government instrumentality administrative or court, domestic or foreign, having jurisdiction over the Company or any of 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the Companycourt decree.

Absence of Defaults and Conflicts. The Except as set forth in or contemplated by the Registration Statement, the General Disclosure Package and the Prospectus, neither the Company nor any of its Subsidiaries is not in violation of its charter or bymemorandum of association, charter, bye-laws or similar constitutional 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 or any 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 or any Subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults as that would not have reasonably be expected to result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale by the Company of the Securities and the use of the 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 compliance by the Company with 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 or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults 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 memorandum of association, charter or bybye-laws or similar constitutional documents of the Company or 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 or any Subsidiary or any of its their assets, properties or operationsoperations (except for such violations 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any Subsidiary.

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not in violation of its charter organizational documents, including, as applicable, its charter, bylaws, partnership, trust and joint venture agreements; neither the Company nor any of its subsidiaries is or by-laws or will be, upon application of the proceeds of the offering described in the Prospectus, in default in the performance or observance of any material duty (including any material obligation, agreement, covenant or condition 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 it or any of them is a party or by which it or any of them may be bound bound, or to which any of the property their properties or assets of the Company is subject (collectively, “Agreements and Instruments”) except for such defaults as which default would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, subsidiaries considered as one enterprise, whether or not arising in would, either immediately or with the ordinary course passage of business (a “Material Adverse Effect”)time, allow any material indebtedness of the Company to be accelerated; and the execution, delivery and performance of this Agreement and the Pricing Agreement, and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Disclosure Package and the Prospectus under the caption “Use of Proceeds”) therein and compliance by the Company with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do will 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 or any of its subsidiaries pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Agreements Company or any of its subsidiaries is a party or by which it or any of them may be bound, which default would have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and Instruments (except for such conflictsits subsidiaries considered as one enterprise, breachesor would, Repayment Events either immediately or defaults or lienswith the passage of time, charges or encumbrances that would not result in a Material Adverse Effect)allow any material indebtedness of the Company to be accelerated, nor will such action result in any violation of the provisions of the charter or by-laws bylaws of the Company or any applicable law, statute, rule, regulation, judgment, order, writ administrative regulation or decree of any government, government instrumentality administrative or court, domestic or foreign, having jurisdiction over the Company or any of 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the Companycourt decree.

Absence of Defaults and Conflicts. The Company is not (i) except as described with respect to the payment of dividends on the Company’s 6% Convertible Exchangeable Preferred Stock (“Preferred Stock”) in the Registration Statement, the General Disclosure Package and the Prospectus, in violation of its charter or by-laws 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 is a party or by which it may be bound bound, or to which any of the property or assets of the Company is subject (collectively, “Agreements and Instruments”) ), except for any default under such defaults as would not Agreements and Instruments that could not, individually or in the aggregate, have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 (including the issuance and sale of the Securities and the use of the 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 the Company with its obligations hereunder have been duly authorized by all necessary corporate action by the Company 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 or any of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events or defaults 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 charter or by-laws of the Company or 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 or any of its subsidiaries or any of their respective 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any of its subsidiaries.

Absence of Defaults and Conflicts. The Subject to the --------------------------------- consummation of the Merger in accordance with its terms and the satisfaction of all conditions set forth in the Merger Agreement, neither the Company nor any of the Subsidiaries is not in violation of its charter or by-laws organizational documents, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any bond, debenture, note or any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it any of them may be bound bound, or to which any of the property or assets of the Company or the Subsidiaries is subject (collectively, “the "Agreements and Instruments”") except for such defaults as that would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Agreement and the International Purchase Agreement and the consummation of the transactions contemplated herein herein, therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds by the Company from the sale of the Securities Class B Common Stock as described in the Disclosure Package and the Prospectus Prospectuses under the caption “"Use of Proceeds”") and compliance by the Company with 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 the 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 or any Subsidiary pursuant to, any of the Agreements and Instruments (Instruments, except for such conflicts, breaches, Repayment Events or defaults or defaults, liens, charges or encumbrances that would not result in have a Material Adverse Effect), nor will any such action result in any violation of the provisions of the charter Restated Articles of Incorporation or byRestated By-laws Laws of the Company or 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 or any Subsidiary or any of its assets, properties their 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any Subsidiary.

Absence of Defaults and Conflicts. The Company is not in violation of its charter Restated Certificate of Incorporation (the “Charter”), or byBy-laws laws, as amended and restated (the “Bylaws”); none of the Subsidiaries is in violation of its charter, bylaws or other organizational documents and 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 or any 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 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 as that would not have a material adverse effect on the conditionnot, financial singly or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (aggregate, reasonably be expected to 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 (including the issuance and sale of the Securities and the use of the 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 the Company with 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 pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events or defaults 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 charter or by-laws of the Company or 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 or any of 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the Company.Subsidiary pursuant

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not in violation of its charter or by-laws bylaws, its partnership agreement, declaration of trust or trust agreement, or its limited liability company agreement (or other similar agreement), 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 lease, or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which it any of them may be bound or to which any of the property respective properties or assets of the Company or any subsidiary is subject (collectively, “Agreements and Instruments”) ), except for such defaults as that would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 therein (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Disclosure Package Statutory Prospectus and the Prospectus under the caption “Use of Proceeds”) ), and the Acquisition and compliance by the Company with 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 or any subsidiary pursuant to, the Agreements and Instruments (any Agreement or Instrument, except for such conflicts, breaches, Repayment Events breaches or defaults 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 charter or by-laws bylaws of the Company or 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 or any of and its assets, properties or operationssubsidiaries 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any subsidiary of the Company or any of its subsidiaries.

Absence of Defaults and Conflicts. The Company Trust is not in violation of its charter declaration of trust or by-laws 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 it is a party or by which it may be bound bound, or to which any of the property or assets of the Company Trust is subject (collectively, “"Agreements and Instruments”") except for such violations or defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Agreement, the Management Agreement, the Administration Agreement the Custodian Agreement and the Transfer Agent and Service Agreement referred to in the Registration Statement (as used herein, the "Management Agreement," the Administration Agreement the "Custodian Agreement" and the "Transfer Agency Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the 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 the Company Trust with 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 Trust pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events breaches or defaults 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 charter declaration of trust or by-laws of the Company Trust or 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 Trust or any of 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 's behalf) the right to require the repurchase, redemption or repayment (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyTrust.

Absence of Defaults and Conflicts. The Company Neither the Company, the --------------------------------- Bank nor any other subsidiary is not in violation of any provision of its articles of incorporation, charter or 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 it is a party or by which it may be bound or to which any of the property or assets of the Company is subject (collectivelyits properties may be subject, “Agreements and Instruments”) except for such defaults as that in the aggregate would not have a material adverse effect on the condition, condition (financial or otherwise), or on the earnings, business affairs affairs, assets or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); enterprise and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described in the Disclosure Package and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company with 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 a default or Repayment Event (as defined below) under, give rise to any right of termination under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary pursuant to, any of the Agreements and Instruments (except for such conflicts, breaches, Repayment Events breaches or defaults or lienslinens, charges or encumbrances that would not individually or in the aggregate, result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws of the Company or any Subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ right or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary or any of its 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any Subsidiary.

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not (A) in violation of its charter or 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 or any 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 or any subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Underwriting Agreement by the Company and the Bank 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 and the use of the 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 compliance by the Company and the Bank with its their 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 or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events breaches or defaults 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 charter or by-laws of the Company or any subsidiary or 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 or any subsidiary or any of its 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 obligation of the Company or any of its subsidiaries (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such note, debenture or other evidence of indebtedness or obligation by the CompanyCompany or any subsidiary.

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not in violation of its charter or 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 or any 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 or any of its subsidiaries is subject (collectivelysubject, “Agreements and Instruments”) except for such defaults as which violation or default, singly or in the aggregate, would not have a material adverse effect on materially and adversely affect the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Agreement and Agreement, the consummation of the transactions contemplated herein and in compliance by the Registration Statement Company with its obligations hereunder (including the issuance and sale of the Securities and the use of the 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 "), as are applicable to the Company with 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 def-ined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any subsidiaries of the Company pursuant to, any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Agreements Company or any 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 or any of its subsidiaries is subject and Instruments (except for such conflictswhich breach or default singly or in the aggregate, breacheswould materially and adversely affect the condition, Repayment Events financial or defaults otherwise, or liensthe earnings, charges business affairs or encumbrances that would not result in a Material Adverse Effect), business prospects of the Company and its subsidiaries considered as one enterprise nor will such action result in any violation of the provisions of the charter or by-laws of the Company or any subsidiaries of the Company or 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 or any of its assetssubsidiaries or any of their assets or properties and which violation, properties singly or operationsin the aggregate, would materially and adversely affect the condition, financial or otherwise, or the earnings, business affairs or business prospects 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the Company or any subsidiaries of the Company.

Absence of Defaults and Conflicts. The Company is not in violation of its charter or 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 is a party or by which it may be bound bound, or to which any of the property or assets of the Company is subject (collectively, “"Agreements and Instruments”") except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 (including the issuance and sale of the Securities and the use of the 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 the Company with 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 pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in (x) any violation of the provisions of the charter or by-laws of the Company or (y) 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 or any of its material 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the Company.

Absence of Defaults and Conflicts. The Company is not in violation of its charter or 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 is a party or by which it may be bound or to which any of the property or assets of the Company is subject (collectively, “Agreements and Instruments”) except for such defaults as would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 (including the issuance and sale of the Securities and the use of the 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 the Company with 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 pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events or defaults 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 charter or by-laws of the Company or 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 or any of 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the Company.

Absence of Defaults and Conflicts. The Company Manager is not in --------------------------------- violation of its charter or 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 it is a party or by which it may be bound bound, or to which any of the its property or assets of the Company is subject (collectively, “for purposes of this paragraph, "Agreements and Instruments”") except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Agreement, the International Purchase Agreement and the Management Agreement and the consummation of the transactions contemplated herein herein, in the International Purchase Agreement, in the Management Agreement and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Disclosure Package and the Prospectus under the caption “Use of Proceeds”) Statement, and compliance by the Company Manager with its obligations hereunder and under the International Purchase Agreement and the Management 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 Manager pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events breaches or defaults 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 charter or by-by- laws of the Company Manager or 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 Manager or any of its assets, properties or operations, except for such violations which, singly or in the aggregate, would result in a Material Adverse Effect. As used hereinin this Section, 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyManager.

Absence of Defaults and Conflicts. The Neither the Company nor any of its Designated Subsidiaries is not in violation of its charter or charter, memorandum of association, bye-laws, by-laws or similar incorporation or organizational documents or in violation or 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 or any 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 or any subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults as under the material Agreements and Instruments that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Agreement Agreement, the Indenture, the Securities and the consummation of the transactions contemplated herein and in the Registration Statement therein (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Disclosure Package and the Prospectus under the caption “Use of Proceeds”) ), and in the Registration Statement and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action under this Agreement, the Indenture and the Securities 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 or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events breaches or defaults 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 charter or charter, memorandum of association, bye-laws, by-laws or similar organizational documents of the Company or any subsidiary or 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 or any subsidiary or any of its 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 that is material to the operations or financial results of the Company (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any subsidiary.

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not in violation of its charter respective certificate or articles of incorporation or 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 or any 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 or any subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults as would have not have resulted, and are not reasonably expected to result, in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Agreement, the Forward Agreement and the Additional Forward Agreement (if any), and the consummation of the transactions contemplated herein and in the Registration Statement therein (including the issuance and sale of the Company Securities (if any) and the use of the proceeds from the sale of the any Company Securities as described in the Registration Statement, the Disclosure Package and the Prospectus under the caption “Use of Proceeds”Prospectus) and compliance by the Company with its obligations hereunder and therewith, 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 or any of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events breaches or defaults 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 charter certificate or articles of incorporation or by-laws of the Company or any of its subsidiaries or 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 or any of its subsidiaries or any of their 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any of its subsidiaries.

Absence of Defaults and Conflicts. The Neither the Company nor any of its Subsidiaries is not in violation of (i) its charter or by-laws 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 or any 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 or any subsidiary is subject (collectively, “Agreements and Instruments”), except with respect to clause (ii) except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 General Disclosure Package and the Prospectus (including the issuance and sale of the Concurrent Securities and the Securities to be purchased by the Underwriters from the Company and the use of the proceeds from the their 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 with 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 or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults 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 charter or by-laws of the Company or any subsidiary or 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 or any subsidiary or any of its 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any Subsidiary.

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not in violation of its charter or 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 or any 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 or any subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults as that would not have reasonably be expected to result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Agreement Agreement, the Indenture, the Securities and the Pledged Bonds and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the 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 the Company with its obligations hereunder and under the Indenture, the Securities and the Pledged Bonds 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 or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults 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 charter or by-laws of the Company or any subsidiary or 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 or any subsidiary or any of its 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any subsidiary.

Absence of Defaults and Conflicts. The Company Neither the Depositor nor NMAC is not in violation of its organizational or charter documents, bylaws, or by-laws the Depositor LLC Agreement, as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any agreement, contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other instrument to which it is a party 8 (Nissan 2012-A Underwriting Agreement) or by which it or its properties or assets may be bound, which would have a material adverse effect on the Depositor’s or NMAC’s ability to perform its respective obligations under the Basic Documents or on the validity or enforceability thereof. The execution, delivery and performance by each of the Depositor or NMAC, as the case may be, of the Basic Documents, and the issuance and sale of the Notes and compliance with the terms and provisions thereof will not, subject to obtaining any consents or approvals as may be required under the securities or “blue sky” laws of various jurisdictions, (i) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, rule, regulation, or order of any governmental agency or body or any court having jurisdiction over the Depositor or NMAC or their respective properties or any agreement or instrument to which the Company either is a party or by which it may be either is bound or to which any of the property their respective properties are subject, except where such breach, violation, or assets of the Company is subject (collectively, “Agreements and Instruments”) except for such defaults as default would not have a material adverse effect on the condition, financial or otherwise, transactions contemplated herein or on the earnings, business affairs Depositor’s or business prospects of the Company and NMAC’s respective ability to perform its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Disclosure Package and the Prospectus obligations under the caption “Use of Proceeds”Basic Documents, (ii) and compliance by the Company with 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 the Depositor’s or constitute a breach ofNMAC’s charter or bylaws or the Depositor LLC Agreement, as the case may be, or default or Repayment Event (as defined belowiii) under, or result in the creation or imposition of any lien, charge or encumbrance Lien (except as permitted by the Basic Documents) upon any of the Depositor’s or NMAC’s property or assets is subject, except for Liens that, individually or in the aggregate, will not have a material adverse effect on either of the Company pursuant to, Depositor’s or NMAC’s ability to perform its respective obligations under the Agreements and Instruments (except for such conflicts, breaches, Repayment Events or defaults 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 charter or by-laws of the Company or 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 or any of 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyBasic Documents.

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not in violation of its charter or 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 or any 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 or any of its subsidiaries is subject (collectively, “"Agreements and Instruments”) "), except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the . The execution, delivery and performance of this Remarketing Agreement and the Remarketing Underwriting 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 and the consummation of the transactions contemplated herein and in the Registration Statement or therein (including the issuance and sale of the Securities Notes and the use of the proceeds from the sale of the Securities thereof as described in the Disclosure Package and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action 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 or any of its subsidiaries pursuant to, the any Agreements and Instruments (except for such conflicts, breaches, Repayment Events or defaults 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 charter or by-laws of the Company or any of its subsidiaries or 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 or any 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 's behalf) the right to require the repurchase, redemption or repayment (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any of its subsidiaries.

Absence of Defaults and Conflicts. The Neither the Company nor any of its Subsidiaries (including the Guarantors) is not (a) in violation of its charter or 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 or any 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 or any Subsidiary is subject (collectively, “Agreements and Instruments”) except ), except, in the case of clause (b), for such defaults as that have not and would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Agreement Agreement, the Indenture, the Guarantees and the Notes and 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 Notes and the use of the proceeds from the sale of the Securities as described in the Disclosure Package and the Prospectus under the caption “Use of Proceeds”Guarantees) and compliance by the Company and the Guarantors with its obligations hereunder under this Agreement, the Indenture, the Guarantees and the Notes 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 or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events breaches or defaults 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 (A) the charter or by-laws of the Company or any Subsidiary or (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 or any Subsidiary or any of its their assets, properties or operationsoperations except for such violations, in the case of clause (B) only, 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any Subsidiary.

Absence of Defaults and Conflicts. The Company is not in violation of its charter or 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 is a party or by which it may be bound or to which any of the property or assets of the Company is subject (collectively, “Agreements and Instruments”) except for such defaults as would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 (including the issuance and sale of the Securities and the use of the 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 the Company with 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 pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events or defaults 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 charter or by-laws of the Company or 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 or any of 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 (through acceleration or otherwise), in each case prior to its stated maturity, ) of all or a portion of such indebtedness by the Company.

Absence of Defaults and Conflicts. The Company is not in violation of its charter Restated Certificate of Formation, as amended (the “Charter”), or by-laws Third Amended and Restated Bylaws (the “Bylaws”); none of the Subsidiaries is in violation of its articles of incorporation, charter, bylaws or other organizational documents; 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 or any 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 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 as that would not have a material adverse effect on the conditionnot, financial singly or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (aggregate, 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 (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described in the Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with 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 or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events breaches or defaults 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 charter Charter or by-laws Bylaws of the Company or the charter, bylaws or other organizational document of any 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 or any Subsidiary or any of its 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any Subsidiary.

Absence of Defaults and Conflicts. The Neither the Company nor --------------------------------- any of its subsidiaries is not in violation of its charter or 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 or any 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 or any subsidiary is subject (collectively, “"Agreements and Instruments”") except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Agreement and the International Purchase Agreement and the consummation of the transactions contemplated herein in this Agreement, the International Purchase Agreement and in the Registration Statement (including the issuance and sale of the Securities and the use of a portion of the proceeds from the sale of the Securities to repay indebtedness as described in the Disclosure Package and the Prospectus Prospectuses under the caption “"Use of Proceeds”") and compliance by the Company with its obligations hereunder under this Agreement and the International Purchase 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 or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events breaches or defaults 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 charter or by-laws of the Company or any subsidiary or 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 or any subsidiary or any of its 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any subsidiary.

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not in violation of its charter or 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 or any 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 or any subsidiary is subject (collectively, “"Agreements and Instruments”") except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Disclosure Package and Prospectus under the caption "Use of Proceeds" without regard to any potential acquisitions by the Company pursuant to the second sentence of paragraph 2 in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company with 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 or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events breaches or defaults 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 charter or by-laws of the Company or any subsidiary or 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 or any subsidiary or any of its 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any subsidiary.

Absence of Defaults and Conflicts. The Neither the Company nor any --------------------------------- of the Subsidiaries is not in violation of its charter or by-laws or partnership agreement, 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 or any of the Subsidiaries is a party or by which it any of them may be bound bound, or to which any of the property or assets of the Company or any of the Subsidiaries is subject (collectively, “"Agreements and Instruments”) "), except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Agreement and the International Purchase Agreement and the consummation of the transactions contemplated herein in this Agreement, the International Purchase Agreement and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Disclosure Package and the Prospectus Prospectuses under the caption “"Use of Proceeds”") and compliance by the Company with its obligations hereunder under this Agreement and the International Purchase 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 or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events breaches or defaults 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 charter or by-laws or other organizational instrument of the Company or any Subsidiary or 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 or any Subsidiary or any of its 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any Subsidiary.

Absence of Defaults and Conflicts. The Neither the Company nor any Subsidiary is not in violation of any provision of its charter or 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 or any of the 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 or any Subsidiary is subject subject, including, without limitation, the agreements described in paragraph (xiii) below (collectively, the “Agreements and Instruments”) except for such defaults as that have been waived or suspended or that would not have a material adverse effect on the conditionreasonably be expected to, financial individually or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (aggregate, 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 (including the issuance and sale of the Securities and the use of the 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 the Company with 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 or any Subsidiary pursuant to, any of the Agreements and Instruments (except for such conflicts, breaches, Repayment Events breaches or defaults 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 charter or by-laws of the Company or any Subsidiary or 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 or any Subsidiary or any of its their 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the Company or any Subsidiary. Each of the Agreements and Instruments is in full force and effect and is valid and enforceable by and against the Company or any of the Subsidiaries, as the case may be, and, to the knowledge of the Company, the other parties thereto, in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles and except for any failure to be in full force and effect or to be valid and enforceable that would not reasonably be expected to result in a Material Adverse Effect.

Absence of Defaults and Conflicts. The Neither the Company nor any of its Subsidiaries is not in violation of its charter or 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 or any 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 or any subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the their 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 with its obligations hereunder and under the Indenture and the Notes, and compliance by the Guarantors with the Guarantees 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 or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults 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 charter or by-laws of the Company or any subsidiary or 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 or any subsidiary or any of its 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any subsidiary.

Absence of Defaults and Conflicts. The Neither the Company nor any of its subsidiaries is not in violation of its charter or 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 or any 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 or any subsidiary is subject (collectively, “"Agreements and Instruments”") except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Disclosure Package Prospectus under the caption "Use of Proceeds," and the consummation of any the pending acquisitions as described in the Prospectus under the caption “Use of Proceeds”"Recent Acquisitions," hereinafter referred to as the "Acquisitions") and compliance by the Company with 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 or any subsidiary (other than existing liens on properties being acquired in the Acquistions) pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events or defaults 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 charter or by-laws of the Company or any subsidiary or 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 or any subsidiary or any of its 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any subsidiary.

Absence of Defaults and Conflicts. The Neither the Company nor any of its Subsidiaries is not in violation of its charter or 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 or any 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 or any Subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and the execution, delivery and performance of this Agreement, the issuance by the Company of the Securities to be issued upon the exercise of the warrants issued by the Company to the Selling Stockholders under that certain Restructuring Agreement dated November 13, 2001 between the Company and TPG Wafer Holdings LLC (the “Warrants”), and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the 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 the Company with its obligations hereunder have been duly authorized by all necessary corporate action of the Company 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, except as set forth or contemplated in the Prospectus, 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 or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events breaches or defaults 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 charter or by-laws of the Company or any Subsidiary or 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 or any Subsidiary or any of its 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any Subsidiary for which the holder has not agreed to waive or forego such right.

Absence of Defaults and Conflicts. The Neither the Company nor any of the Group Entities is not (A) in breach of or in default under 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 or any Group Entity or any of their assets, properties or operations, (B) in violation of its charter or charter, by-laws or other constitutive or organizational documents, or (C) 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 or any of the Group Entities 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 or any Group Entity is subject (collectively, “Agreements and Instruments”) except for such defaults as would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course case of business (A) and (C) above where such breach or default would not, singly or in the aggregate, result in a “Material Adverse Effect”)Effect and except as described in the Registration Statement, the General Disclosure Package and the 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 General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the 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 compliance by the Company with 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 or any Group Entity pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults 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 charter or charter, by-laws or other constitutive or organizational documents of the Company or any Group Entity or 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 or any Group Entity or any of its 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any Group Entity. In particular, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, neither the Company nor any of the Group Entities was, has been, or is, in default in the performance or observance of any obligation, covenant or condition contained in the Term Facility Agreement between Pypo Holdings (HK) Company Limited, as Borrower, and Nederlandse Financierings-Maatschappij Voor Ontwikkelingslanden N.V. (“FMO”), as Lender, dated January 30, 2009, as amended (the “FMO Facility”); except as described in the Registration Statement, the General Disclosure Package and the Prospectus, any and all past defaults by the Company or any of the Group Entities in the performance or observance of any obligation, covenant or condition contained in the FMO Facility have been duly waived by FMO and any conditions for such waivers have been satisfied and all such waivers have become unconditional; defaults by the Company or any of the Group Entities in the performance or observance of any obligation, covenant or condition contained in the FMO Facility did not, and will not, result in a cross-default under any other loans of the Company or any of the Group Entities outstanding as of the date of this Agreement; neither Company nor any of the Group Entities has any reason to believe that it may not be able to duly perform or observe all material obligations, covenants or conditions contained in the FMO Facility at any time or for any period in the fiscal year ending March 31, 2011 or obtain the proper waivers thereto; the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the 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 compliance by the Company with its obligations hereunder 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 under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Group Entity pursuant to the FMO Facility.

Absence of Defaults and Conflicts. The Neither the Company nor any Venture (as defined below) is not in violation of its charter or by-laws (or equivalent 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 or any Venture 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 or any Venture is subject (collectively, “Agreements and Instruments”"AGREEMENTS AND INSTRUMENTS") except for such defaults as that would not have a material adverse effect on the conditionnot, financial singly or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (aggregate, result in a “Material Adverse Effect”); and the . The execution, delivery and performance of this Agreement and the International Purchase Agreement and the consummation of the transactions contemplated herein in this Agreement, the International Purchase Agreement and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Disclosure Package and the Prospectus Prospectuses under the caption “Use of Proceeds”"USE OF PROCEEDS") and compliance by the Company with its obligations hereunder under this Agreement and the International Purchase 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 or any Venture pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events breaches or defaults 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 charter or by-laws (or equivalent constitutive documents) of the Company or any Venture or 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 or any Venture or any of its their assets, properties or operations. As used herein, (a) "VENTURE" means any entity in which the Company has a “Repayment Event” direct or indirect greater than 20% equity interest or voting power and (b) 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any Venture.

Absence of Defaults and Conflicts. The (A) None of the Operating Partnership, the Company or any Subsidiary is not in violation of its charter charter, bylaws, certificate of limited partnership, partnership agreement or by-laws other governing document, as the case may be, and none of such entities is or will be 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 such entity is a party or by which it such entity may be bound or affected, or to which any of the property or assets of the Company such entity is subject (collectively, “"Agreements and Instruments”) "), except for such violations or defaults as that would not have result in a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”); and (B) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Disclosure Package and the Prospectus Supplement under the caption “"Use of Proceeds”") and compliance by each of the Operating Partnership and the Company with its obligations hereunder have been duly authorized by all necessary corporate or partnership action on the part of the Operating Partnership and the Company or any Subsidiary, as the case may be, 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 Operating Partnership, the Company or any of the Subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events any Agreement or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect)Instrument, nor will such action result in any violation of the provisions charter, bylaws, certificate of limited partnership, partnership agreement or other governing document, as the charter or by-laws case may be, of the Company such entity or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality administrative or court, domestic or foreign, having jurisdiction over the Company or any of its assets, properties or operationscourt decree. 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyOperating Partnership, the Company or any of the Subsidiaries.

Absence of Defaults and Conflicts. The Company is not in violation of its charter Certificate of Incorporation, as amended (the “Charter”), or byBy-laws Laws, as amended (the “Bylaws”); none of the Subsidiaries is in violation of its charter, bylaws or other organizational documents and 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 or any 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 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 as would not have a material adverse effect on the conditionthat could not, financial singly or otherwise, or on the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries, if any, considered as one enterprise, whether or not arising in the ordinary course of business (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 (including the issuance and sale of the Securities and the use of the 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 the Company with 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 or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, Repayment Events breaches or defaults or liens, charges or encumbrances that would not could 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 charter Charter or by-laws Bylaws of the Company or the charter, bylaws or other organizational document of any 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 or any Subsidiary or any of its their assets, properties or operationsoperations (except for such violations that could 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 (through acceleration or otherwise), in each case prior to its stated maturity, of all or a portion of such indebtedness by the CompanyCompany or any Subsidiary.