Common use of Absence of Defaults and Conflicts Clause in Contracts

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

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

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

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

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

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

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

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

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

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

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor any of their Subsidiaries its subsidiaries is (1) in violation of its declaration of trustcharter or statute, partnership agreementas applicable, charter, bylaws or by-laws (or other similar organizational documents), as the case may be, or (2) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries is subject (collectively, “"Agreements and Instruments”) "), except as described in the Preference Offering Memorandum and except for such defaults that would not result in a Material Adverse EffectEffect or (3) 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 of its subsidiaries or any of their assets or properties, except as described in the Preference Offering Memorandum; and the execution, delivery and performance of this Agreement Agreement, the Preference Warrant Agreement, the Preference Registration Rights Agreement, the Preference Warrant Registration Rights Agreement, the Certificate of Designation, the Preference Securities, the Note Securities, the Note Agreements, and any other agreement or instrument entered into or issued or to be entered into or issued by the Company or any Designated Subsidiary in connection with the transactions contemplated hereby or thereby or in the Preference Offering Memorandum and the consummation of the transactions contemplated herein and in the Registration Statement Note Purchase Agreement and the Prospectus Preference Offering Memorandum (including the issuance and sale of the Preference Securities from time to time pursuant to this Agreement or and the Alternative Distribution Agreements Note Securities and the use of the Net Proceeds proceeds from the sale of the Preference Securities and the Note Securities as described in the Prospectus Preference Offering Memorandum under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether whethe r with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments, Instruments except for such conflicts, breaches, defaults or Repayment Events or 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 declaration of trustcharter or statute, partnership agreement, charteras applicable, or bylaws, as the case may be, by-laws (or other similar organizational documents) of the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries or any of their assetsassets or properties, properties or operationsassuming that the Chase Purchasers comply with all of its obligations under Section 6 hereof. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof its subsidiaries.

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

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

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

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

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

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

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

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

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

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

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

Absence of Defaults and Conflicts. None The issue and sale of the Company--------------------------------- Preferred Securities and the Common Securities by the Trust, the Operating Partnership compliance by the Trust with all of the provisions of this Agreement, the purchase of the Subordinated Debt Securities by the Trust, and the consummation of the transactions herein contemplated will not conflict with or result in a breach of any of their Subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws the terms or similar organizational documents, as the case may beprovisions of, or in constitute a default in the performance or observance of under, any obligationindenture, loan agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease trust or other agreement or instrument to which the Company, the Operating Partnership or any Subsidiary Trust is a party or by which it or any of them may be bound, the Trust is bound or to which any of the property or assets of the Company, the Operating Partnership or any Subsidiary Trust is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries with their respective obligations hereunder have been duly authorized by all necessary action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any Subsidiary pursuant to, the Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effectsubject, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, or bylaws, as the case may be, of the Company, the Operating Partnership Declaration or any Subsidiary statute or any order, rule or regulation of any applicable law, statute, rule, regulation, judgment, order, writ court or decree of any government, government instrumentality governmental agency or court, domestic or foreign, body having jurisdiction over the Company, the Operating Partnership or any Subsidiary Trust or any of their assetsits properties; and no consent, properties approval, authorization, order, license, certificate, permit, registration or operationsqualification of or with any such court or other governmental agency or body is required to be obtained by the Trust for the issue and sale of the Preferred Securities and the Common Securities by the Trust, the purchase of the Subordinated Debt Securities by the Trust or the consummation by the Trust of the transactions contemplated by this Agreement and the Declaration, except for such consents, approvals, authorizations, licenses, certificates, permits, registrations or qualifications as have already been obtained, or as may be required under the 1933 Act or the 1933 Act Regulations or state securities laws or under 1939 Act. As used hereinThe issuance by the Company of the Guarantees and the Subordinated Debt Securities, the compliance by the Company with all of the provisions of this Agreement, the execution, delivery and performance by the Company of the Declaration, the Subordinated Debt Securities, the Guarantee Agreements and the Indenture, and the consummation of the transactions herein and therein contemplated will not conflict with or result in a “Repayment Event” means any event breach or condition which gives the holder violation of any noteof the terms or provisions of, debenture or constitute a default under, any material indenture, loan agreement, mortgage, deed of trust, or other evidence material agreement or instrument to which the Company is a party or by which the Company is bound or to which any of indebtedness (the property or assets of the Company is subject, nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or by-laws of the Company or any person acting on statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its properties; and no consent, approval, authorization, order, license, certificate, permit, registration or qualification of or with any such holder’s behalf) court or other governmental agency or body is required for the right to require issue of the repurchase, redemption Guarantees and the Subordinated Debt Securities or repayment of all or a portion of such indebtedness the consummation by the CompanyCompany of the other transactions contemplated by this Agreement, except for such consents, approvals, authorizations, licenses, certificates, permits, registrations or qualifications as have already been obtained, or as may be required under the Operating Partnership 1933 Act or any Subsidiarythe 1933 Act Regulations or state securities laws or under the 1939 Act.

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

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

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

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

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

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

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

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

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

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

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

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

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their Subsidiaries Subsidiary (A) is in violation of its declaration of trust, partnership agreement, charter, bylaws by-laws, certificate of limited partnership or similar partnership agreement or other organizational documentsdocument, as the case may be, or (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any Subsidiary such entity is a party or by which it or any of them may be bound, or to which any of the its property or assets of the Company, the Operating Partnership may be bound or any Subsidiary is subject (collectively, “"Agreements and Instruments”"), except (with respect to clause (B) except only) for such violations or defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Underwriting Agreement, the applicable Terms Agreement and each applicable Warrant Agreement and Deposit Agreement 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 Registration Statement and the Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Underwritten Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Underwritten Securities as described in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, Company and the Operating Partnership and their Subsidiaries with their respective its obligations hereunder and thereunder have been duly authorized by all necessary action corporate or partnership action, 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 assets, properties or assets operations of the Company, the Operating Partnership or any Subsidiary pursuant to, the any Agreements and Instruments, except for such conflicts, breaches, defaults or defaults, Repayment Events 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 declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, Company or the organizational documents of the Operating Partnership or any Subsidiary or of (B) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any Subsidiary or any of their assets, properties or operations, except (with respect to clause (B) only) for such violations that would not have a Material Adverse Effect. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a material portion of such indebtedness by the Company, the Operating Partnership or any Subsidiary.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership Simon Entities or any of their Subsidiaries Property Partnership is in violation of its declaration of trust, partnership agreement, charter, bylaws by-laws, certificate of limited partnership or similar partnership agreement or other organizational documentsdocument, as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any Subsidiary each entity is a party or by which it or any of them may be bound, or to which any of the its property or assets of the Company, the Operating Partnership or any Subsidiary is Portfolio Property may be bound or subject (collectively, “"Agreements and Instruments”) "), except for such violations (other than with respect to the charter, by-laws, partnership agreement, or other organizational document of the Companies, as the case may be) or defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Underwriting Agreement, the applicable Terms Agreement and each applicable Warrant Agreement and Deposit Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the Companies or the Operating Partnership in connection with the transactions contemplated hereby or thereby or in the Registration Statement and the Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Underwritten Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Underwritten Securities as described in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, Companies and the Operating Partnership and their Subsidiaries with their respective its obligations hereunder and thereunder have been duly authorized by all necessary action corporate or partnership action, 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 assets, properties or assets operations of the Company, the Operating Partnership Companies or any Subsidiary other Simon Entity or any Property Partnership pursuant to, the any Agreements and Instruments, except for such conflicts, breaches, defaults or defaults, Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, or bylaws, as the case may be, by-laws of the Company, Companies or the Operating Partnership organizational documents of any other Simon Entity or any Subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the CompanyCompanies, the Operating Partnership any other Simon Entity or any Subsidiary - 10 - Property Partnership or any of their assets, properties or operations, except for such violations (other than with respect to the charter, by-laws, partnership agreement, or other organizational document of the Companies, as the case may be) that would not have a Material Adverse Effect. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a material portion of such indebtedness by the CompanyCompanies, the Operating Partnership any other Simon Entity or any SubsidiaryProperty Partnership.

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

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

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership Company or any of their Subsidiaries subsidiary thereof is in violation of its declaration of trustcharter or by-laws, partnership agreement, charter, bylaws agreement or similar organizational documents, as the case may be, other constitutive documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary subsidiary thereof is a party or by which it or any of them may be bound, or to which any of the property assets, properties or assets operations of the Company, the Operating Partnership Company or any Subsidiary subsidiary thereof is subject (collectively, “"Agreements and Instruments”) "), except for such defaults that would not reasonably be expected to result in a Material Adverse Effect; and the Change. The execution, delivery and performance of the Terms Agreement (including the provisions of this Agreement Agreement), the issuance and sale of the Offered Securities as contemplated herein and in the Prospectus, the consummation of the transactions transaction contemplated herein and in the Registration Statement and the Prospectus (including including, without limitation, the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements Offered Securities, and the use of the Net Proceeds proceeds from the sale of the Offered Securities as described in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary action and thereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Company, the Operating Partnership Company or any Subsidiary subsidiary thereof pursuant to, the any Agreements and Instruments, Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result in a Material Adverse EffectChange); provided, however, that (i) the use of the proceeds for purposes other than the repayment of the Auction Rate Reset Preferred Securities (the "RHINOS") issued by ACE RHINOS Trust within 90 days after the Closing Date would, unless waived, constitute a violation of the instruments governing the RHINOS and the underlying subordinated notes, and (ii) the pledge of securities in support of the Company's guaranty of the subordinated notes underlying the RHINOS would, unless waived, constitute a violation of covenants under the Company's bank credit facilities; nor will such action result in any violation of the provisions of the declaration of trustcharter or by-laws, partnership agreementagreement or other constitutive documents of the Company or any subsidiary thereof or, charter, or bylaws, as to the case may be, best knowledge of the Company, the Operating Partnership or any Subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary subsidiary thereof or over any of their assets, properties or operations, except for such violations under any applicable law, statute, rule, regulation, judgement, order, writ or decree as would not reasonably be expected to result in a Material Adverse Change. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiarysubsidiary thereof.

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

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

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

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

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

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

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

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor any of their Subsidiaries its subsidiaries is in violation of its declaration of trust, charter or bylaws or its partnership agreement, charter, bylaws or similar organizational documents, as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property respective properties or assets of the Company, the Operating Partnership Company or any Subsidiary subsidiary is subject (collectively, “"Agreements and Instruments”) "), except for such defaults that would not result in have a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the U.S. Purchase Agreement and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus therein (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities to repay borrowings under the Revolving Credit Agreement dated as of November 29, 1994, among the Company, the banks named therein and The Bank of New York, as agent, as amended by the First Amendment to the Revolving Credit Agreement, dated as of January 26, 1995, the Second Amendment to the Revolving Credit Agreement, dated as of December 4, 1995, the Third Amendment to the Revolving Credit Agreement, dated as of March 7, 1997, and the Fourth Amendment to the Revolving Credit Agreement dated April 28, 1997 (as so amended, the "Acquisition Credit Agreement"), as described in the Prospectus Prospectuses under the caption “"Use of Proceeds”" but excluding any use of proceeds to fund any property acquisitions or for other general corporate purposes for which specific corporate authorization may be required) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary subsidiary pursuant to, the Agreements and Instrumentsany Agreement or Instrument, except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that that, individually or in the aggregate, would not result in have a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Company or any Subsidiary or of any applicable law, statute, rule, regulation, or governmental or court judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any Subsidiary or any of their assets, properties or 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 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiarysubsidiary of the Company or any of its subsidiaries.

Absence of Defaults and Conflicts. None of Neither the CompanyCompany nor its subsidiary, the Operating Partnership nor Stripes Holdings or any of their Subsidiaries its Subsidiaries, is in violation of its declaration of trustcharter or by-laws, limited liability company agreement, partnership agreement, charter, bylaws agreement or similar other organizational documents, as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or its subsidiary or Stripes Holdings or any Subsidiary of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or its subsidiary or Stripes Holdings or any Subsidiary of its Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and Securities, the use of the Net Proceeds proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”,” and the Corporate Reorganization) and compliance by the Company, the Operating Partnership Company and their Subsidiaries Stripes Holdings with 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, the Operating Partnership Company or its subsidiary or Stripes Holdings or any Subsidiary of its Subsidiaries pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may belimited liability company agreement, partnership agreement or other organizational documents of the Company, the Operating Partnership Company or its subsidiary or Stripes Holdings or any Subsidiary of its Subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or its subsidiary or Stripes Holdings or any Subsidiary of its Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or its subsidiary or Stripes Holdings or any Subsidiaryof its Subsidiaries.

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

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

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their the Subsidiaries is in violation of (i) its declaration of trust, partnership agreement, charter, bylaws respective Organizational Documents or similar organizational documents, as the case may be, or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contractCompany Document, indentureexcept, mortgagesolely as to clause (ii), deed of trust, loan (a) as disclosed in the Disclosure Package and the Final Prospectus or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any Subsidiary is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any Subsidiary is subject (collectively, “Agreements and Instruments”b) except for such defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement Statement, the Pricing Prospectus and the Final Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds net proceeds received by the Company from the sale of the Securities as described in the Pricing Prospectus and the Final Prospectus under the caption “Use of Proceeds”) and compliance by the Company, Company and the Operating Partnership and their Subsidiaries with their respective obligations hereunder under this Agreement have been or will be duly authorized by all necessary action (corporate or other) 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, the Operating Partnership or any Subsidiary of the Subsidiaries pursuant toto any Company Documents, except as disclosed in the Registration Statement, the Agreements Pricing Prospectus and Instruments, the Final Prospectus and except for such conflicts, breaches, defaults or defaults, Repayment Events or liens, charges or encumbrances Liens that would not result in a Material Adverse EffectEffect or which would not reasonably be expected to materially and adversely affect the properties or assets thereof or the consummation of the transactions contemplated in this Agreement, nor will such action result in any violation of the provisions of (i) the declaration of trust, partnership agreement, charter, or bylaws, as the case may be, Organizational Documents of the Company, the Operating Partnership or any Subsidiary of the Subsidiaries or of (ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any Subsidiary the Subsidiaries or any of their respective assets, p roperties or operations, except, in the case of clause (ii), (a) as disclosed in the Disclosure Package and the Final Prospectus and (b) for such violations that would not result in a Material Adverse Effect, or that would not reasonably be expected to materially and adversely affect the properties or operations. As used hereinassets thereof that, individually or in the aggregate are material to the Company and its subsidiaries, taken as a “Repayment Event” means any event whole, or condition which gives that would not materially and adversely affect the holder consummation of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any Subsidiarytransactions contemplated in this Agreement.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their Subsidiaries The Company is not in violation of its declaration Restated Certificate of trust, partnership agreement, charter, bylaws Incorporation or similar organizational documents, as the case may be, By-Laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any Subsidiary it is a party or by which it or any of them may be bound, or to which any of the its property or assets of the Company, the Operating Partnership or any Subsidiary is subject (collectively, “Agreements and Instruments”) or, except as disclosed in the Registration Statement, in violation of any law, ordinance, governmental rule, regulation or court decree to which it or its property or assets may be subject except for such defaults or violations (other than with respect to its Restated Certificate of Incorporation or By-laws) that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement Agreement, the Indenture and the Senior Notes, and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements Senior Notes and the use of the Net Proceeds proceeds from the sale of the Securities Senior Notes as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder and under the Indenture and the Senior 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, the Operating Partnership or any Subsidiary Company pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration Restated Certificate of trust, partnership agreement, charter, Incorporation or bylaws, as the case may be, By-Laws of the Company, the Operating Partnership Company or any Subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any Subsidiary Company or any of their its assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, other than such events or conditions that are contemplated by the Operating Partnership or any Subsidiaryterms of this Agreement and the Indenture.

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

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor any of their Subsidiaries its subsidiaries is (A) in violation of its declaration articles of trust, partnership agreement, charter, incorporation or bylaws or similar other organizational documents, each as amended as of the case may be, date hereof or (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults that would not not, individually or in the aggregate, reasonably be expected to result in 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 from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, Company and the Operating Partnership and their Subsidiaries Bank with 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, the Operating Partnership Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration articles of trust, partnership agreement, charter, incorporation or bylaws, as the case may be, bylaws or other organizational documents of the Company, the Operating Partnership Company or any Subsidiary subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary subsidiary or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness or 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 of all or a portion of such note, debenture or other evidence of indebtedness or obligation by the Company, the Operating Partnership Company or any Subsidiarysubsidiary.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor any of their Subsidiaries its subsidiaries is in violation of its declaration of trustcharter, by-laws, operating agreement or partnership agreement, charter, bylaws or similar organizational documents, as the case may beapplicable, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and filing with the SDAT of the August 2017 Articles Supplementary and the December 2017 Reclassification Articles Supplementary, 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 from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds to the Company from the sale of the Securities as described in the Prospectus therein under the caption “Use of Proceeds”) and compliance by the Company, Company and the Operating Partnership and their Subsidiaries with their respective obligations hereunder have been duly authorized by all necessary action and 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, the Operating Partnership Company or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trustcharter, by-laws, partnership agreement, charter, agreement or bylaws, as the case may be, operating agreement of the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries or any of their assets, properties or operationsoperations except for such violations of any law, statute, rule, regulation, judgment, order, writ or decree that would not result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof its subsidiaries.

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

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

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

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership Xxxxxxx Oil and Gas or any of their Subsidiaries Xxxxxxx Oil and Gas's subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws respective charter or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Xxxxxxx Oil and Gas or any Subsidiary of Xxxxxxx Oil and Gas's subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Xxxxxxx Oil and Gas or any Subsidiary of Xxxxxxx Oil and Gas's subsidiaries is subject (collectively, “"Agreements and Instruments”) "), except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the transactions contemplated herein herein, in the Transaction Documents and in the Registration Statement and the Prospectus (including the issuance of the Securities in the Share Exchange and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”Agreement) and compliance by each of the Company, the Operating Partnership Company and their Subsidiaries Xxxxxxx Oil and Gas with their its respective obligations hereunder and pursuant to 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, the Operating Partnership Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Xxxxxxx Oil and Gas or any Subsidiary subsidiary of Xxxxxxx Oil and Gas or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Xxxxxxx Oil and Gas or any Subsidiary subsidiary of Xxxxxxx Oil and Gas 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 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Xxxxxxx Oil and Gas or any Subsidiarysubsidiary of Xxxxxxx Oil and Gas.

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

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

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor any of their its Subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries is subject (collectively, “"Agreements and Instruments”") except for such defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement Agreement, the Registration Rights Agreement, the DTC Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Offering Memorandum, and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus Offering Memorandum (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the Prospectus Offering Memorandum under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder 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 a Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect), nor will such action result in any violation of (A) the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries or of (B) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries or any of their assetsassets or properties, properties or operationsin the case of this clause (B), except for such violation that would not result in a Material Adverse Effect. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof its Subsidiaries.

Absence of Defaults and Conflicts. (A) None of the Company, the Operating Partnership or any of their Subsidiaries Subsidiary is in violation of its declaration charter, bylaws, certificate of trustlimited partnership, partnership agreement, charter, bylaws agreement or similar organizational documentsother 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, the Operating Partnership or any Subsidiary such entity is a party or by which it or any of them such entity may be boundbound or affected, or to which any of the property or assets of the Company, the Operating Partnership or any Subsidiary such entity is subject (collectively, “"Agreements and Instruments”) "), except for such violations or defaults that would not result in 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 and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the Prospectus Supplement under the caption “"Use of Proceeds”") and compliance by each of the Company, Company and the Operating Partnership and their Subsidiaries with their respective its obligations hereunder have been duly authorized by all necessary corporate or partnership action on the part of the Company, the Operating Partnership 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 Company, the Operating Partnership or any Subsidiary of the Subsidiaries pursuant to, the Agreements and Instruments, except for such conflicts, breaches, defaults any Agreement or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse EffectInstrument, nor will such action result in any violation of the provisions charter, bylaws, certificate of the declaration of trustlimited partnership, partnership agreement, charter, agreement or bylawsother governing document, as the case may be, of the Company, the Operating Partnership such entity or any Subsidiary or of 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, the Operating Partnership or any Subsidiary or any of their 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 of all or a portion of such indebtedness by the Company, the Operating Partnership or any Subsidiaryof the Subsidiaries.

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

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

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

Absence of Defaults and Conflicts. (i) None of the Company, the Operating Partnership Company or any of their Subsidiaries Subsidiary is in violation of its declaration charter, by-laws, certificate of trustformation, limited liability company or operating agreement, partnership agreement, charter, bylaws agreement or similar other organizational documents, as applicable, (ii) none of the case may be, Company or any of its Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries is subject (collectively, “Agreements and Instruments”"AGREEMENTS AND INSTRUMENTS") except for such defaults that would not result in a Material Adverse Effect; , and (iii) the execution, delivery and performance of this Agreement, the Indenture, the Series A Notes, the Series B Notes, the Subsidiary Guarantee Agreement and the Registration Rights Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the Company or the Subsidiary Guarantors in connection with the transactions contemplated hereby or thereby or in the Final Offering Memorandum and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus Final Offering Memorandum (including including, without limitation, the issuance and sale of the Securities from time to time pursuant to this Agreement or Series A Notes, the Alternative Distribution Agreements consummation of the merger of Camelot Merger, Inc., a wholly owned subsidiary of the Company, with and into ChipPAC as described in the Final Offering Memorandum (the "MERGER"), the use of the Net Proceeds proceeds from the sale of the Securities Series A Notes as described in the Prospectus Final Offering Memorandum under the caption “"Use of Proceeds”" and the consummation of the tender offer for all of the 12 3/4% Senior Subordinated Notes due 2009 of ChipPAC International Company Limited as described in the Final Offering Memorandum (the "TENDER OFFER")) and compliance by the Company, Company and the Operating Partnership and their Subsidiaries Subsidiary Guarantors with their respective obligations hereunder have been duly authorized by all necessary action corporate or other organizational action, as applicable, and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or result in the occurrence and continuance of a Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries pursuant to, the Agreements and Instruments, Instruments except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect, nor will such action result in (x) any violation of the provisions of the declaration charter, by-laws, certificate of trustformation, limited liability company or operating agreement, partnership agreement, charter, agreement or bylawsother organizational document of the Company or the Subsidies, as the case may be, of the Company, the Operating Partnership applicable or any Subsidiary or of (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, the Operating Partnership Company or any Subsidiary of its Subsidiaries or any of their assets, properties or operationsoperations except, with respect to Clause (y), for such actions that would not have a Material Adverse Effect. 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 of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof its Subsidiaries prior to the stated maturity of such indebtedness.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor any of their its Significant Subsidiaries (as defined below) is (i) in violation of its declaration of trust, partnership agreement, charter, bylaws charter or by-laws or similar organizational documents, as the case may be, documents or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its Significant Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary of its Significant Subsidiaries is subject (collectively, “Agreements and Instruments”) except for ), except, with respect to clause (ii), such defaults that would not reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement Agreement, each of the Transaction Documents and the consummation of the transactions contemplated herein therein and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and Shares, the use of the Net Proceeds 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, Company with its obligations under this Agreement and each of the Operating Partnership and their Subsidiaries with their respective obligations hereunder Transaction Documents have been duly authorized by all necessary corporate action and do not and will notnot conflict with, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any Subsidiary of its Significant Subsidiaries pursuant to, the Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that are described in the Pricing Disclosure Package or the Prospectus or would not reasonably be expected to result in a Material Adverse Effect, nor will such action result in any violation of (y) the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Company or any Subsidiary or of (z) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any Subsidiary Company or any of their its assets, properties or operations, except, with respect to clause (z), any such violation 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 of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any of its Significant Subsidiaries. As used in this subsection and elsewhere in this Agreement, “Significant Subsidiary.” has the meaning set forth in Rule 1-02 of Regulation S-X.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor any of their its Subsidiaries is in violation of its declaration charter or by-laws. Neither the Company nor any of trust, partnership agreement, charter, bylaws or similar organizational documents, as the case may be, or its subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary subsidiary is subject (collectively, “"Agreements and Instruments”") except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the other Operative Documents, the entry by the Company into the Purchase Contracts underlying the Income PRIDES, the issuance of the Shares and the sale of the Shares pursuant to the Purchase Contracts, and the consummation of the transactions contemplated herein herein, in the other Operative Documents and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements Securities, and the use of the Net Proceeds proceeds from the sale of the Securities as described in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their Subsidiaries Company with their respective its obligations hereunder and under the other Operative 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, the Operating Partnership Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments, Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Company or any Subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any governmentcourt, government instrumentality insurance regulatory authority or courtother governmental agency or body, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary or any of their assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiarysubsidiary.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor any of their its Subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any Subsidiary is subject (collectively, “"Agreements and Instruments”) "), except for such defaults that as would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, the International Purchase Agreement and the applicable Terms Agreements and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Registration Statement and the Prospectuses and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus Prospectuses (including the issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds proceeds from the sale of the Securities as described in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, Company with its obligations under this Agreement and the Operating Partnership and their Subsidiaries with their respective obligations hereunder 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 assets, properties or assets operations of the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries pursuant to, the any Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events defaults, events or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, or bylaws, as the case may be, of the Company, the Operating Partnership or any Subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any Subsidiary of its Subsidiaries or any of their assetsassets or properties, properties which violation would result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the charter or operationsby-laws of the Company or any of its Subsidiaries. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiary.

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

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor any of their Subsidiaries its subsidiaries is in violation of its declaration respective articles of trustincorporation, partnership agreement, charter, charter or bylaws or similar organizational governing documents, except to the extent such violation, conflict, breach or default would not adversely affect the transactions contemplated hereby or have a Material Adverse Effect. The Company and each of its subsidiaries have conducted and are conducting their business so as to comply in all material respects with all applicable statutes, regulations and administrative and court decrees. None of the case may be, Company or any subsidiary of the Company is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any Subsidiary it is a party or by which it or any of them may be bound, bound or to which any of the property its properties or assets of the Company, the Operating Partnership or any Subsidiary is subject (collectively, “"Agreements and Instruments”) "), except for such defaults under Agreements and Instruments that would not individually or in the aggregate result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement by the Company, the issuance, sale and delivery of the Shares, the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities from time to time pursuant to by this Agreement or the Alternative Distribution Agreements and the use of the Net Proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) Agreement, and compliance by the Company, Company and the Operating Partnership and their Subsidiaries Bank Subsidiary with their respective obligations hereunder the terms of this Agreement have been duly authorized by all necessary corporate action on the part of the Company and the Bank Subsidiary and do not and will not, whether with or without the giving of notice or passage of time or both, violate, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any any, security interest, mortgage, pledge, lien, charge charge, encumbrance, claim or encumbrance equitable right upon any property properties or assets of the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries pursuant to, any of the Agreements and Instruments, except for to the extent such conflictsviolation, breachesconflict, defaults breach or Repayment Events or liens, charges or encumbrances that default would not result individually or in the aggregate adversely affect the transactions contemplated hereby or have a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration articles of trust, partnership agreementincorporation, charter, bylaws or bylaws, as the case may be, similar governing documents of the Company, the Operating Partnership Company or any Subsidiary of its subsidiaries or any violation by the Company or any of its subsidiaries of any applicable 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 Office of Thrift Supervision (the "OTS") and the FDIC, having jurisdiction over the Company, the Operating Partnership or any Subsidiary Company or any of its subsidiaries or their assets, respective properties or operationsassets (collectively, "Governmental Entities"), except to the extent such violation, conflict, breach or default would not individually or in the aggregate adversely affect the transactions contemplated hereby or have a Material Adverse Effect. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any Subsidiaryof its subsidiaries prior to its scheduled maturity.