Common use of Absence of Defaults and Conflicts Clause in Contracts

Absence of Defaults and Conflicts. Neither the Company, the Guarantor nor any Subsidiary is in violation of its articles of incorporation or by-laws or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Guarantor or any Subsidiary is a party or by which it may be bound, or to which any of the property or assets of the Company, the Guarantor or any Subsidiary is subject (collectively, the “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor with their obligations hereunder and under the Indenture and the Securities does not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Guarantor or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the articles of incorporation or by-laws of the Company, the Guarantor or any Subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 Guarantor or any Subsidiary.

Absence of Defaults and Conflicts. Neither The Company is not in violation of its Certificate of Incorporation, as amended (the Company“Charter”), or Bylaws, as amended (the Guarantor nor any Subsidiary “Bylaws”); none of the Subsidiaries is in violation of its articles charter, bylaws or other organizational documents and neither the Company nor any of incorporation or by-laws or its Subsidiaries is in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor 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 Guarantor Company or any Subsidiary is subject (collectively, the “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statutelaw or statute or any judgment, laworder, rule, rule or regulation of any court or judicial arbitrator or administrative decree, writ, judgment governmental or orderregulatory authority, except for such violations or defaults that would not not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, Agreement and the Indenture and the Securities and the consummation of the transactions contemplated herein and therein, and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor with their its obligations hereunder have been duly authorized by all necessary corporate action and under the Indenture and the Securities does 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 Guarantor Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect), ; nor will such action result in any violation of the provisions of the articles of incorporation Charter or by-laws Bylaws of the CompanyCompany or the charter, the Guarantor bylaws or other organizational document of 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 Guarantor Company or any Subsidiary or any of their assets, properties or operationsoperations (except for such violations that would not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Guarantor Company or any Subsidiary.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of its Subsidiaries is in violation of its articles of incorporation charter or by-laws or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor 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 Guarantor Company or any Subsidiary is subject (collectively, the “Agreements and Instruments”), ) except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor with their its obligations hereunder have been duly authorized by all necessary corporate action and under the Indenture and the Securities does 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 Guarantor Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults 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 articles of incorporation charter or by-laws of the Company, the Guarantor Company or any Subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 Guarantor Company or any Subsidiary.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor nor any The Company is not in violation of its Amended and Restated Certificate of Incorporation (“Charter”) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its articles organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of incorporation its Subsidiaries is in default in the performance or by-laws or in defaultobservance (nor has any event occurred which with notice, and no event has occurred that with notice or lapse of time or both would constitute such a default, default in the performance observance or observance 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 Guarantor Company or any Subsidiary is a party or by which it the Company or any Subsidiary may be bound, or to which any of the property or assets of the Company, the Guarantor Company or any Subsidiary is subject (collectively, the “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement, the Indenture and the Securities Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor with their its obligations hereunder and under the Indenture thereunder have been duly authorized by all necessary corporate action and the Securities does 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 Guarantor Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches 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 articles of incorporation Charter or by-laws Bylaws of the Company, Company or the Guarantor or organizational documents of any Subsidiary or (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 Guarantor Company or any Subsidiary.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of its subsidiaries is in violation of its articles of incorporation charter or by-laws or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor 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 Guarantor Company or any Subsidiary of its subsidiaries is subject (collectively, the “"Agreements and Instruments”"), except for such violations or defaults that would could not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not reasonably be expected to result in a Material Adverse Effect; and the . The execution, delivery and performance of this Underwriting Agreement, the applicable Terms Agreement and the Indenture and any other agreement or instrument entered into or issued or to be entered into or issued by the Securities Company and each Initial Guarantor in connection with the transactions contemplated hereby or thereby or in the Registration Statement and the Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information Statement and the Prospectus (including the issuance and sale of the Underwritten Securities and the use of the proceeds from the sale of the Underwritten Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “"Use of Proceeds”" in the Prospectus relating to such Underwritten Securities) and compliance by the Company and the each Initial Guarantor with their its obligations hereunder and under the Indenture thereunder have been duly authorized by all necessary corporate action and the Securities does 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 Guarantor Company or any Subsidiary of its subsidiaries pursuant to, the any Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect)Instruments, nor will such action result in any violation of the provisions of the articles of incorporation charter or by-laws of the Company, the Guarantor Company or any Subsidiary of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Guarantor Company or any Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. (A) Neither the Company, the Guarantor Dura nor any Subsidiary is in violation of its articles of incorporation charter or by-laws or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor 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 Guarantor Dura or any Subsidiary is subject (collectively, the “"Agreements and Instruments”), ") except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance of each of this Agreement, the Indenture International Purchase Agreement, the Warrant Agreement and the Securities 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 International Purchase Agreement, the Warrant Agreement and the Transaction Agreements and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the use Warrants as part of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”Units) and compliance by Dura, SDC and DDSI, as the Company and the Guarantor case may be, with their respective obligations hereunder under this Agreement, the International Purchase Agreement, the Warrant Agreement and under each of the Indenture Transaction Agreements to which they are a party have been duly authorized by all necessary corporate action and the Securities does 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 Guarantor Dura or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the articles of incorporation charter or by-laws of the Company, the Guarantor Dura or any Subsidiary or 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 Guarantor 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 Guarantor Dura or any Subsidiary.

Absence of Defaults and Conflicts. Neither the Company, the Parent Guarantor nor any Subsidiary of their subsidiaries is in violation of its articles of incorporation operating agreement, charter or by-laws laws, as applicable, or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Parent Guarantor or any Subsidiary of their subsidiaries is a party or by which it they or any of them may be bound, or to which any of the property or assets of the Company, the Parent Guarantor or any Subsidiary subsidiary is subject (collectively, the “Agreements and Instruments”), ) except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Parent Guarantor with their respective obligations hereunder and under the Indenture and the Securities does have been duly authorized by all necessary corporate or limited liability company 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 Parent Guarantor or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches 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 (i) the articles of incorporation operating agreement, charter or by-laws laws, as applicable, of the Company, the Parent Guarantor or any Subsidiary subsidiary or (ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Parent Guarantor or any Subsidiary subsidiary or any of their assets, properties or operations, except, with respect to section (ii) above, 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 Parent Guarantor or any Subsidiarysubsidiary.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary is in violation of its articles of incorporation or charter, by-laws or other organizational documents or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 agreementagreement (including any Credit Facility), note, lease or other agreement or instrument to which the Company, the Guarantor Company 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 Guarantor Company or any Subsidiary Subsidiary, is subject (collectively, the “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, ) except for such violations or defaults, singly or in the aggregate, that are not resulting or would not reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and by the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”Company) and compliance by the Company and the Guarantor with their its obligations hereunder have been duly authorized by all necessary corporate action and under the Indenture and the Securities does do not and will not, whether with or without the giving of notice or passage of time or both: (A) result in any violation of the provisions of the charter, by-laws or organization document of the Company or any Subsidiary, or (B) 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 Guarantor Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or breaches, defaults, Repayment Events, liens, charges or encumbrances that are not, singly or in the aggregate, resulting or would not reasonably be expected, singly or in the aggregate, to result in a Material Adverse Effect), nor will such action or result in any violation of the provisions of the articles of incorporation or by-laws of the Company, the Guarantor or any Subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality instrumentality, self-regulatory organization or other non-governmental regulatory authority (including without limitation, the rules and regulations of the Nasdaq Stock Market (“Nasdaq”)) or court, domestic or foreign, having jurisdiction over the Company, the Guarantor Company or any Subsidiary or any of their assets, properties or operations, except for such violations that are not resulting or 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 Guarantor Company or any Subsidiary.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of its Significant Subsidiaries is in violation of its articles of incorporation charter or by-laws or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor 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 Guarantor Company or any Significant Subsidiary is subject (collectively, the “Agreements and Instruments”), ) except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance of this AgreementAgreement and the Indenture, the Indenture issuance and sale of the Securities and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor with their its obligations hereunder and under the Indenture and the Securities does 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 Guarantor Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches 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 articles of incorporation charter or by-laws of the Company, the Guarantor Company or any Subsidiary or subsidiary or, except for such violations that would not result in a Material Adverse Effect, any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 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 Guarantor Company or any Subsidiarysubsidiary.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor nor any Subsidiary The Fund is not in violation of its articles declaration of incorporation trust or by-laws laws, each as amended from time to time, or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor or any Subsidiary it is a party or by which it may be bound, or to which any of the property or assets of the Company, the Guarantor or any Subsidiary Fund is subject (collectively, the “"Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, ") 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 Indenture Investment Management Agreement, the Sub-Advisory Agreement, the Administration and Accounting Services Agreement, the Custodian Services Agreement and the Securities Transfer Agency Services Agreement referred to in the Registration Statement (as used herein, the "Management Agreement," the "Sub-Advisory Agreement," the "Administration Agreement," the "Custodian Agreement" and the "Transfer Agency Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company and the Guarantor Fund with their its obligations hereunder have been duly authorized by all necessary Fund actions and under the Indenture and the Securities does 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 Guarantor or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the articles declaration of incorporation trust or by-laws of the CompanyFund, the Guarantor or any Subsidiary each as amended from time to time, or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor or any Subsidiary Fund or any of their its 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 portion of such indebtedness by the Company, the Guarantor or any SubsidiaryFund.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of its consolidated subsidiaries is (i) in violation of its articles or certificate of incorporation and bylaws, or by-laws equivalent governing documents, as applicable, or (ii) in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor Company or any Subsidiary of its consolidated 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 Guarantor Company or any Subsidiary consolidated subsidiary is subject (collectively, the “Agreements and Instruments”), ) except in the case of clause (ii) for such defaults that would not not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect Effect; notwithstanding the foregoing, no event of default has occurred and is continuing under the Company’s or its consolidated subsidiaries’ indentures or notes; neither the Company nor any of its consolidated subsidiaries is in violation of any applicable federal, state, local or foreign statute, law, rule, regulation regulation, ordinance, code, policy or rule of common law or any judicial or administrative decreeinterpretation thereof, writincluding any applicable judicial or administrative order, judgment consent, decree or orderjudgment, except for such violations that would not result not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information Statement and the Prospectus General Disclosure Package (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor with their its obligations hereunder have been duly authorized by all necessary corporate action and under the Indenture and the Securities does 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 Guarantor Company or any Subsidiary consolidated subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches breaches, defaults or defaults Repayment Events or liens, charges or encumbrances that would not not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the articles or certificate of incorporation and bylaws, or by-laws equivalent governing documents, as applicable, of the CompanyCompany (as the same are to be amended and effective prior to the Closing Time, as described in the Guarantor Registration Statement) or any Subsidiary consolidated subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor Company or any Subsidiary consolidated 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 Guarantor Company or any Subsidiaryconsolidated subsidiary.

Absence of Defaults and Conflicts. Neither None of the Company, the Guarantor nor Operating Partnership, any Subsidiary subsidiary or any Property Partnership is in violation of its articles of incorporation or charter, by-laws laws, certificate of limited partnership or partnership agreement or other organizational document, as the case may be, or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, default in the performance or observance of any material 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 Guarantor or any Subsidiary such entity is a party or by which it or any of them may be bound, or to which any of its assets or the property Properties may be bound or assets of the Company, the Guarantor or any Subsidiary is are subject (collectively, the “"Agreements and Instruments”"), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Underwriting Agreement, the Indenture applicable Terms Agreement and each applicable Warrant 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 Securities Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information Statement and the Prospectus (including the issuance and sale of the Underwritten Securities and the use of the proceeds from the sale of the Underwritten Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company and the Guarantor Operating Partnership with their obligations hereunder and under thereunder have been duly authorized by all necessary corporate or partnership action, as the Indenture case may be, and the Securities does 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 Guarantor Operating Partnership, any subsidiary or any Subsidiary Property Partnership pursuant to, the any Agreements and Instruments (Instruments, except for such conflicts, breaches or defaults breaches, defaults, events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the articles of incorporation or charter, by-laws of the CompanyCompany or the organizational documents of the Operating Partnership, the Guarantor any subsidiary or any Subsidiary Property Partnership or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor Operating Partnership, any subsidiary or any Subsidiary Property Partnership 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 Guarantor Operating Partnership, any subsidiary or any SubsidiaryProperty Partnership.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of the Subsidiaries is in violation of its articles of incorporation or charter, by-laws or other organizational documents. Further, neither the Company nor any of the Subsidiaries is in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor Company or any Subsidiary of the Subsidiaries is a party or by which it any of them may be bound, or to which any of the property or assets of the Company, the Guarantor Company or any Subsidiary of the Subsidiaries is subject (collectively, the “"Agreements and Instruments”), ") except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture Indenture, the Underwritten Securities, the Warrant Agreement, if applicable, the Investment Advisory Agreement and the Securities Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement, the Time of Sale Information Statement and the Prospectus General Disclosure Package (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and 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 and the Guarantor with their its obligations hereunder and under the Indenture and the Securities does 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 Guarantor Company or any Subsidiary of the Subsidiaries pursuant to, the Agreements and Instruments (Instruments, except for such conflicts, breaches or breaches, defaults or liens, charges or encumbrances Repayment Events 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 is a party or by which Ares may be bound, or to which any of the property or assets of Ares Management LLC ("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 articles of incorporation or charter, by-laws or other organizational documents of the Company, the Guarantor Company or any Subsidiary of the Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 Guarantor Company or any Subsidiaryof the Subsidiaries.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary MIE is in violation of its articles of incorporation or by-laws Organizational Documents (as defined below) or in default, and no event has occurred that default (or with notice the giving of notices or lapse of time or both would constitute such a 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 Guarantor Company or any Subsidiary MIE is a party or by which it either of them may be bound, or to which any of the property or assets of the Company, the Guarantor Company or any Subsidiary MIE is subject (collectively, the “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect not, individually or in violation of any applicable statutethe aggregate, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the Deposit Agreement, the Indenture and the Securities and the consummation of the transactions contemplated herein or therein and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and Ordinary Shares underlying the Securities and the use of the proceeds from the sale of the Securities as described in the Statutory Prospectus included in the Registration Statement, the Time of Sale Information General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor with their its obligations hereunder have been duly authorized by all necessary corporate action and under the Indenture and the Securities does 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 Guarantor Company or any Subsidiary MIE pursuant to, the Agreements and Instruments (except for such conflicts, breaches 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 articles of incorporation or by-laws Organizational Documents of the Company, the Guarantor Company or any Subsidiary MIE or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor Company or any Subsidiary MIE or any of their assets, properties or operations. As used herein, a “Organizational Documents” means, with respect to any person, the memorandum of association, articles of association or other organizational documents of such entity and any amendments thereto. 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 Guarantor Company or any SubsidiaryMIE.

Absence of Defaults and Conflicts. Neither the Company, either of the Guarantor Guarantors nor any Subsidiary of their respective subsidiaries is (i) in violation of its articles charter, memorandum of incorporation association or bybye-laws or similar governing document, as applicable, (ii) in default, and no event has occurred that which, with notice or lapse of time or both both, would constitute such a default, in the due performance or observance of any term, 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 Guarantor or any Subsidiary it is a party or by which it may be bound, is bound or to which any of the property its properties or assets of the Company, the Guarantor or any Subsidiary is may be subject (collectively, the “Agreements and Instruments”) or (iii) in violation of any law, ordinance, governmental rule, regulation or court decree to which it or its property or assets may be subject, except with respect to (ii) or (iii), except for any such violations or defaults that would not result in a Material Adverse Effect be reasonably likely, singly or in violation of any applicable statutethe aggregate, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in to have a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor Guarantors with their respective obligations hereunder and under the Indenture and the Securities does 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, (i) conflict with or constitute result in a breach or violation of any of the terms or provisions of, or constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, Company or either of the Guarantor Guarantors or any Subsidiary of their respective subsidiaries pursuant to, the Agreements and Instruments Instruments, (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action ii) result in any violation of the provisions of the charter, articles or memorandum of incorporation association, organizational regulations or bybye-laws (or similar governing document) of the Company, Company or either of the Guarantor Guarantors or any Subsidiary of their respective subsidiaries or (iii) 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, Company or either of the Guarantor Guarantors or any Subsidiary of their respective subsidiaries or any of their assets, properties or operations; except for such conflict, breach, violation or default which would, for purposes of clauses (i) and (iii) above, either individually or in the aggregate, not have a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, Company or either of the Guarantor Guarantors or any Subsidiaryof their respective subsidiaries.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor nor any Subsidiary The Manager is not (i) in violation of its articles Organizational Documents or (ii) in violation of incorporation or by-laws or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, in the performance or observance of default under any existing obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan or credit agreement, notemortgage, lease or other agreement or instrument to which the Company, the Guarantor or any Subsidiary it is a party or by which it may be it, or any of its properties, is bound, except in the case of clause (ii) as would not, individually or in the aggregate, reasonably be expected to which any of the property or assets of the Company, the Guarantor or any Subsidiary is subject (collectively, the “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Manager Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, the Indenture Agreement and the Securities Transaction Agreements to which it is a party and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information Pre-Pricing Prospectus and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company Manager with its obligations under this Agreement and the Guarantor with their obligations hereunder and under the Indenture and the Securities does Transaction Agreements to which it is a party 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 violation of, or constitute a default or Manager 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 Guarantor or any Subsidiary Manager pursuant to, any contracts, indentures, mortgages, deeds of trust, loan or credit agreements, bonds, notes, debentures, evidences of indebtedness, swap agreements, hedging agreements, leases or other instruments or agreements to which the Agreements and Instruments (Manager is a party, except for such conflicts, breaches or breaches, defaults or liens, charges or encumbrances Liens that would not not, individually or in the aggregate, reasonably be expected to result in a Manager Material Adverse Effect), nor will such action result in any violation of (i) the provisions of the articles of incorporation or by-laws Organizational Documents of the CompanyManager or (ii) except as would not reasonably be expected to result in a Manager Material Adverse Effect, the Guarantor or any Subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor or any Subsidiary Manager or any of their its assets, properties or operations. As used herein, a “Manager 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 Guarantor or any SubsidiaryManager prior to its stated maturity.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Issuer nor any Subsidiary of its Subsidiaries is in violation of its articles of incorporation or by-laws respective organizational documents or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor or any Subsidiary of them is a party or by which it any of them may be bound, or to which any of the property or assets of the Company, the Guarantor or any Subsidiary of them is subject (collectively, the “Agreements and Instruments”"AGREEMENTS AND INSTRUMENTS"), except for such violations or defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and (A) the execution, delivery and performance of this Agreement, the Indenture Securities, the Exchange Indentures (if any Exchange Debentures are issued in exchange for Preferred Securities and such exchange does not cause any of the results described in clauses (1) and (2) below), and the Securities Escrow Agreement by the Issuer, and the consummation by the Issuer of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus therein (including the issuance and sale by the Issuer of the Preferred Securities and the use of the proceeds from the sale of the Preferred Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “"Use of Proceeds”" and in accordance with the Escrow Agreement), (B) and compliance by the Company and the Guarantor Issuer with their its obligations hereunder and under the Indenture Securities, (C) compliance by the Issuer with its obligations under the Exchange Indentures (if any Exchange Debentures are issued in exchange for any Preferred Securities and the Securities such exchange does not cause any of the results described in clauses (1) and (2) below), (D) compliance by the Issuer with its obligations under the Escrow Agreement and such other agreements to which it is or will notbe a party in connection with the transactions contemplated by this Agreement, (E) consummation of the Triton Acquisition, (F) the execution, delivery and performance of the Existing Credit Facility or the New Credit Facility, as applicable, and (G) the issuance and sale of the Convertible Preferred will not (1) 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 Encumbrance upon any property or assets of the Company, the Guarantor any such entity or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances Encumbrances that would not result in a Material Adverse Effect), nor will such action ) or (2) result in any violation of (x) the provisions of the articles of incorporation or by-laws respective organizational documents of the Company, the Guarantor Issuer or any Subsidiary of its Subsidiaries or (y) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor Issuer or any Subsidiary of its Subsidiaries or any of their assets, properties or operationsoperations (except for such violations that would not result in a Material Adverse Effect); PROVIDED, HOWEVER, that any obligation of the Issuer to redeem or offer to repurchase the Preferred Securities (including, without limitation, any Junior Stock Special Redemption) is subject to the restrictions set forth in the Minnesota Business Corporation Act and the terms of the Issuer's Articles of Incorporation, the Credit Facilities, the Senior COD, the Senior Indenture (if the Senior Exchange Debentures are issued), and the Indenture governing the Issuer's 9 5/8% Senior Subordinated Notes due 2008. As used herein, a “Repayment Event” "REPAYMENT EVENT" means any event or condition which that gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Guarantor any such entity or any Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of the subsidiaries is in violation of its articles declaration of incorporation trust (“Original Declaration of Trust”) or by-laws bylaws (“Original Company Bylaws”), in the case of the Company, or certificate of formation or limited liability company agreement (or like organizational documents) (each a “Subsidiary Governing Document”), in the case of any of the subsidiaries, or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor Company or any Subsidiary such subsidiary is a party or by which it may be bound, or to which any of the property or assets of the Company, the Guarantor Company or any Subsidiary of its Subsidiaries is subject (collectively, the “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, Agreement by the Indenture and the Securities Company and the consummation by the Company of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor with their its obligations hereunder have been duly authorized by all necessary trust action and under the Indenture and the Securities does 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 Guarantor Company or any Subsidiary of the subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches 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 articles Original Declaration of incorporation or by-laws Trust, the Original Company Bylaws, the amended and restated declaration of trust of the Company, as effective at the Guarantor or Closing Time (“Amended Declaration of Trust”), the amended and restated bylaws of the Company, as effective at the Closing Time (“Amended Company Bylaws”), any Subsidiary Governing Document or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 Guarantor Company or any Subsidiaryof the subsidiaries.

Absence of Defaults and Conflicts. Neither the CompanyThe Company is not in violation of its Amended and Restated Certificate of Incorporation, the Guarantor nor any as amended (“Charter”) or its Second Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its articles organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of incorporation its Subsidiaries is in default in the performance or by-laws or in defaultobservance (nor has any event occurred which with notice, and no event has occurred that with notice or lapse of time or both would constitute such a default, default in the performance observance or observance 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 Guarantor Company or any Subsidiary is a party or by which it the Company or any Subsidiary may be bound, or to which any of the property or assets of the Company, the Guarantor Company or any Subsidiary is subject (collectively, the “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement, the Indenture and the Securities Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described in the Registration Statement, the Time of Sale Information Statement and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor with their its obligations hereunder and under the Indenture thereunder have been duly authorized by all necessary corporate action and the Securities does 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 Guarantor Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches 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 articles of incorporation Charter or by-laws Bylaws of the Company, Company or the Guarantor or organizational documents of any Subsidiary or (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 Guarantor Company or any Subsidiary.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary is in violation of its articles of incorporation or charter, by-laws or other organizational documents or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 agreementagreement (including any Credit Facility), note, lease or other agreement or instrument to which the Company, the Guarantor Company 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 Guarantor Company or any Subsidiary Subsidiary, is subject (collectively, the “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, ) except for such violations or defaults, singly or in the aggregate, that are not resulting or would not reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and by the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”Company) and compliance by the Company and the Guarantor with their its obligations hereunder have been duly authorized by all necessary corporate action and under the Indenture and the Securities does do not and will not, whether with or without the giving of notice or passage of time or both: (A) result in any violation of the provisions of the charter, by-laws or organization document of the Company or any Subsidiary, or (B) 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 Guarantor Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or breaches, defaults, Repayment Events, liens, charges or encumbrances that are not, singly or in the aggregate, resulting or would not reasonably be expected, singly or in the aggregate, to result in a Material Adverse Effect), nor will such action or result in any violation of the provisions of the articles of incorporation or by-laws of the Company, the Guarantor or any Subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality instrumentality, self-regulatory organization or other non-governmental regulatory authority (including without limitation, the rules and regulations of the NASDAQ Stock Market (“NASDAQ”)) or court, domestic or foreign, having jurisdiction over the Company, the Guarantor Company or any Subsidiary or any of their assets, properties or operations, except for such violations that are not resulting or 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 Guarantor Company or any Subsidiary.

Absence of Defaults and Conflicts. Neither the CompanyThe Company is not in violation of its second amended and restated articles of incorporation (as amended and restated, the Guarantor nor any Subsidiary “Charter”), or amended and restated bylaws (as amended and restated, the “Bylaws”); none of the Subsidiaries is in violation of its articles charter, bylaws or other organizational documents; neither the Company nor any of incorporation or by-laws or its Subsidiaries is in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor 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 Guarantor Company or any Subsidiary is subject (collectively, the “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statutelaw or statute or any judgment, laworder, rule, rule or regulation of any court or judicial arbitrator or administrative decree, writ, judgment governmental or orderregulatory authority, except for such violations or defaults that would not not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities Agreement and the consummation of the transactions contemplated herein herein, and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor with their its obligations hereunder have been duly authorized by all necessary corporate action and under the Indenture and the Securities does 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 Guarantor Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect), ; nor will such action result in any violation of the provisions of the articles of incorporation Charter or by-laws Bylaws of the CompanyCompany or the charter, the Guarantor bylaws or other organizational document of 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 Guarantor Company or any Subsidiary or any of their assets, properties or operationsoperations (except for such violations that would not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Guarantor Company or any Subsidiary.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor PSEG nor any Subsidiary of its Subsidiaries is in violation of its articles Amended and Restated Certificate of incorporation Incorporation, other organization document or by-laws or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor PSEG 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 Guarantor PSEG or any Subsidiary of its Subsidiaries is subject (collectively, the “"Agreements and Instruments”"), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations 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 Indenture and any other agreement or instrument entered into or issued or to be entered into or issued by PSEG in connection with the Securities 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, the Time of Sale Information Statement and the Prospectus (including the issuance and sale of the Underwritten Securities and the use of the proceeds from the sale of the Underwritten Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company and the Guarantor PSEG with their its obligations hereunder and under the Indenture thereunder have been duly authorized by all necessary corporate action and the Securities does 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 Guarantor PSEG or any Subsidiary of its subsidiaries pursuant to, the any Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect)Instruments, nor will such action result in any violation of the provisions of the articles of incorporation charter or by-laws of the Company, the Guarantor PSEG or any Subsidiary of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor PSEG 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 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Guarantor PSEG or any Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of its subsidiaries is (i) in violation of its articles charter, memorandum of incorporation association or bybye-laws or similar governing document, as applicable, (ii) in default, and no event has occurred that which, with notice or lapse of time or both both, would constitute such a default, in the due performance or observance of any term, 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 Guarantor or any Subsidiary it is a party or by which it may be bound, is bound or to which any of the property its properties or assets of the Company, the Guarantor or any Subsidiary is may be subject (collectively, the “Agreements and Instruments”) or (iii) in violation of any law, ordinance, governmental rule, regulation or court decree to which it or its property or assets may be subject, except with respect to (ii) or (iii), except for any such violations or defaults that would not result in a Material Adverse Effect be reasonably likely, singly or in violation of any applicable statutethe aggregate, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in to have a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”” and in the Disclosure Package) and compliance by the Company and the Guarantor with their respective obligations hereunder and under the Indenture and the Securities does 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, (i) conflict with or constitute result in a breach or violation of any of the terms or provisions of, or constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Guarantor Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments Instruments, (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action ii) result in any violation of the provisions of the articles charter, memorandum of incorporation association or bybye-laws (or similar governing document) of the Company, the Guarantor Company or any Subsidiary of its subsidiaries or (iii) 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 Guarantor Company or any Subsidiary subsidiary or any of their assets, properties or operations; except for such conflict, breach, violation or default which would, for purposes of clauses (i) and (iii) above, either individually or in the aggregate, not have a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Guarantor Company or any Subsidiarysubsidiary.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary is in violation of its articles of incorporation charter, bylaws or by-laws other organizational documents or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 agreementagreement (including any Credit Facility), note, lease or other agreement or instrument to which the Company, the Guarantor Company 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 Guarantor Company or any Subsidiary Subsidiary, is subject (collectively, the “Agreements and Instruments”), ) except for such defaults violations or defaults, singly or in the aggregate, that are not resulting or would not reasonably be expected to result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse EffectChange; and the execution, delivery and performance of this Agreement, the Indenture and the Securities Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information Pricing Disclosure Package and the Prospectus (including the issuance and sale of the Public Securities and by the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”Company) and compliance by the Company and the Guarantor with their its obligations hereunder have been duly authorized by all necessary corporate action and under the Indenture and the Securities does do not and will not, whether with or without the giving of notice or passage of time or both: (A) result in any violation of the provisions of the Company’s articles of incorporation (the “Charter”), the Company’s Certificate of Designation 7.75% Series A Cumulative Convertible Preferred Shares (the “Certificate of Designation”) or the Company’s bylaws (the “Bylaws”) or any other organization document of the Company or any Subsidiary, or (B) 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 Guarantor Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or breaches, defaults, Repayment Events, liens, charges or encumbrances that are not, singly or in the aggregate, resulting or would not reasonably be expected, singly or in the aggregate, to result in a Material Adverse EffectChange), nor will such action or result in any violation of the provisions of the articles of incorporation or by-laws of the Company, the Guarantor or any Subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality instrumentality, self-regulatory organization or other non-governmental regulatory authority (including without limitation, the rules and regulations of the NASDAQ Stock Market (“Nasdaq”)) or court, domestic or foreign, having jurisdiction over the Company, the Guarantor Company or any Subsidiary or any of their assets, properties or operations, except for such violations that are not resulting or 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 behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Guarantor Company or any Subsidiary.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of its subsidiaries is in violation of its articles of incorporation or charter, by-laws or other organizational documents or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor Company or any Subsidiary of its subsidiaries is a party or by which it may be bound, bound or to which any of the property or assets of the Company, the Guarantor Company or any Subsidiary is of its subsidiaries may be subject (collectively, the “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance of this 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 Disclosure Package and the Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor with their its obligations hereunder have been duly authorized by all necessary corporate action and under the Indenture and the Securities does 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 Guarantor Company or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that that, individually 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 articles of incorporation charter or by-laws of the Company, the Guarantor Company or any Subsidiary of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 Guarantor Company or any Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. Neither The Company is not in violation of its Articles of Amendment and Restatement (as amended or supplemented through the Companydate of this Agreement, the Guarantor nor any “Charter”) or its Amended and Restated Bylaws (the “Bylaws”). No Subsidiary is in violation of its articles organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of incorporation its Subsidiaries is in default in the performance or by-laws or in defaultobservance (nor has any event occurred which with notice, and no event has occurred that with notice or lapse of time or both would constitute such a default, default in the performance observance or observance 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 Guarantor Company or any Subsidiary is a party or by which it the Company or any Subsidiary may be bound, or to which any of the property or assets of the Company, the Guarantor Company or any Subsidiary is subject (collectively, the “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement, the Indenture and the Securities Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor with their its obligations hereunder and under the Indenture thereunder have been duly authorized by all necessary corporate action and the Securities does 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 Guarantor Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches 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 articles of incorporation Charter or by-laws Bylaws of the Company, Company or the Guarantor or organizational documents of any Subsidiary or (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 Guarantor Company or any Subsidiary.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of its subsidiaries is in violation of its articles of incorporation charter or by-laws or similar organizational documents or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor Company or any Subsidiary of its subsidiaries is a party or by which it any of them may be bound, bound or to which any of the property or assets of the Company, the Guarantor Company or any Subsidiary of its subsidiaries is subject (collectively, the “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect ) or has violated or is in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor with their obligations hereunder and under the Indenture and the Securities does not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Guarantor or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the articles of incorporation or by-laws of the Company, the Guarantor or any Subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the CompanyCompany or any of the subsidiaries or any of their assets or properties, except in each case for such violations and defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of the Transaction Documents and any other agreement or instrument entered into or issued or to be entered into or issued by the Company or any of the Guarantors in connection with the transactions contemplated hereby or thereby or in the Disclosure Package and the Prospectus and the consummation of the transactions contemplated herein and in the Disclosure Package and the Prospectus, as the case may be (including the issuance and sale of the Notes, the Guarantor issuance of the Guarantees, and the use of the proceeds from the sale of the Securities as described in the Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by each of the Company and the Guarantors with its respective obligations hereunder have been duly authorized by all necessary corporate, limited liability 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 a Repayment Event (as defined below) under, or, except as referred to in the Disclosure Package and the Prospectus, result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments except for such conflicts, breaches or defaults or liens, charges or encumbrances that, singly or in the aggregate, would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Company or any of its subsidiaries or, in any material respect, any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Guarantor Company or any Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of the Subsidiaries is in violation of its articles of incorporation or charter, by-laws or other organizational documents. Further, neither the Company nor any of the Subsidiaries is in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor Company or any Subsidiary of the Subsidiaries is a party or by which it any of them may be bound, or to which any of the property or assets of the Company, the Guarantor Company or any Subsidiary of the Subsidiaries is subject (collectively, the “Agreements and Instruments”), ) except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture Indenture, the Underwritten Securities, the Warrant Agreement, if applicable, the Investment Advisory Agreement and the Securities Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement, the Time of Sale Information Statement and the Prospectus General Disclosure Package (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and 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 and the Guarantor with their its obligations hereunder and under the Indenture and the Securities does 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 Guarantor Company or any Subsidiary of the Subsidiaries pursuant to, the Agreements and Instruments (Instruments, except for such conflicts, breaches or breaches, defaults or liens, charges or encumbrances Repayment Events 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 Xxxx 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 articles of incorporation or charter, by-laws or other organizational documents of the Company, the Guarantor Company or any Subsidiary of the Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 Guarantor Company or any Subsidiaryof the Subsidiaries.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of its subsidiaries is in violation of its articles of incorporation charter or by-laws bylaws or its partnership agreement, as the case may be, or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor Company or any Subsidiary of its subsidiaries is a party or by which it any of them may be bound, or to which any of the property respective properties or assets of the Company, the Guarantor Company or any Subsidiary subsidiary is subject (collectively, the “"Agreements and Instruments”"), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in have a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities to repay borrowings under the Revolving Credit Agreement dated as of December 14, 1999 among the Company, the banks named therein, The Bank of New York, as agent and swing line bank, First Union National Bank, as syndication agent, Xxxxx Fargo Bank, National Association, as documentation agent, Bank of Montreal as co-agent and BNY Capital Markets, Inc., as arranger, as amended by Amendment No. 1 thereto dated as of January 21, 2000 and extended pursuant to the Extension Agreement dated April 25, 2001 (as so amended and extended, the "Acquisition Credit Agreement"), as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company and the Guarantor with their its obligations hereunder have been duly authorized by all necessary corporate action and under the Indenture and the Securities does 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 Guarantor Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (any Agreement or Instrument, except for such conflicts, breaches or defaults or liens, charges or encumbrances that that, individually or in the aggregate, would not result in have a Material Adverse Effect), nor will such action result in any violation of the provisions of the articles of incorporation charter or by-laws bylaws of the Company, the Guarantor or any Subsidiary Company or any applicable law, statute, rule, regulation, or governmental or court judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 Guarantor Company or any Subsidiarysubsidiary of the Company or any of its subsidiaries.

Absence of Defaults and Conflicts. Neither The Company is not in violation of its Articles of Amendment and Restatement (as amended or supplemented through the Companydate of this Agreement, the Guarantor nor any “Charter”) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its articles organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of incorporation its Subsidiaries is in default in the performance or by-laws or in defaultobservance (nor has any event occurred which with notice, and no event has occurred that with notice or lapse of time or both would constitute such a default, default in the performance observance or observance 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 Guarantor Company or any Subsidiary is a party or by which it the Company or any Subsidiary may be bound, or to which any of the property or assets of the Company, the Guarantor Company or any Subsidiary is subject (collectively, the “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement, the Indenture and the Securities Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor with their its obligations hereunder and under the Indenture thereunder have been duly authorized by all necessary corporate action and the Securities does 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 Guarantor Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches 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 articles of incorporation Charter or by-laws Bylaws of the Company, Company or the Guarantor or organizational documents of any Subsidiary or (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 Guarantor Company or any Subsidiary.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of the Subsidiaries is in violation of its articles respective charter of incorporation or by-laws or other constituent or organizational documents or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor 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 Guarantor Company or any Subsidiary is subject (collectively, the “"Agreements and Instruments”), ") except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, each of the Indenture Principal Agreements and the Securities Structuring Documents and the consummation of the transactions contemplated herein and in each of the Principal Agreements, the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus Prospectuses under the caption “"Use of Proceeds”") and the Structuring Documents, and compliance by the Company or any Subsidiary with its or their obligations under each of the Principal Agreements and the Guarantor with their obligations hereunder Structuring Documents have been duly authorized by all necessary corporate action and under the Indenture received all approvals from any governmental or regulatory body and the Securities does sanction or consent of its shareholders 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 Guarantor Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the articles of incorporation charter or by-laws or other constituent or organizational documents or business license or other organizational document of the Company, the Guarantor Company or any Subsidiary or any applicable treaty, 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 Guarantor Company or any Subsidiary or any of their assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which that gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Guarantor Company or any Subsidiary.

Absence of Defaults and Conflicts. Neither The issue and sale of the Securities, the execution and delivery by the Company or the Guarantor, as the case may be, of, and the performance by the Company and the Guarantor of all their obligations under, the Indenture, this Agreement and the Securities will not (x) contravene the provisions of the Memorandum and Articles of Association or similar constituent document of the Company, the Guarantor nor or any Significant Subsidiary, (y) contravene applicable laws of Ireland or the United States, including any state thereof or the District of Columbia having jurisdiction over the Company, the Guarantor or any Significant Subsidiary is except for such contraventions as would not individually or in the aggregate reasonably be expected to have a material adverse effect on the business, financial condition or results of operations of the Guarantor and its subsidiaries taken as a whole or (z) conflict with or result in a material breach or violation of its articles any of incorporation the terms or by-laws provisions of, or in defaultconstitute a material default under, and no event has occurred that with notice or lapse of time or both would constitute such a default, in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease agreement or other agreement or instrument to which the Company, the Guarantor or any Significant Subsidiary is a party or by which it may be bound, or to which any of the property or assets of the Company, the Guarantor or any Significant Subsidiary is subject (collectively, the “Agreements and Instruments”), bound except for such defaults that agreements the contravention of which would not result in a Material Adverse Effect not, individually or in violation the aggregate, reasonably be expected to have a material adverse effect on the business, financial condition or results of any applicable statuteoperations of the Guarantor and its subsidiaries taken as a whole; and no consent, lawapproval, ruleauthorization, regulation or judicial or administrative decree, writ, judgment or order, except license, registration or qualification of or with any such court or governmental agency or body is required for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus (including the issuance issue and sale of the Securities and or the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”) and compliance consummation by the Company or the Guarantor of the transactions contemplated by this Agreement or the Indenture, except (A) such consents, approvals, authorizations, orders, licenses, registrations or qualifications as have been obtained by the Company or the Guarantor, as applicable, and are in full force and effect, (B) as may be required under the blue sky (or similar) laws of any jurisdiction in which the Securities are offered or sold and (C) the filing with, and the Guarantor with their obligations hereunder and under the Indenture and the Securities does not and will notapproval by, 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 NYSE of the Company, the Guarantor or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the articles of incorporation or by-laws of the Company, the Guarantor or any Subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 Guarantor or any SubsidiaryListing Application.

Absence of Defaults and Conflicts. Neither 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 Guarantor Company nor any Subsidiary of its Significant Subsidiaries or Insurance Subsidiaries is in violation of its articles of incorporation or charter, by-laws or code of regulations; none of the Trust, the Company or any subsidiary of the Company is in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor 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 Guarantor or any Subsidiary is subject (collectively, the “"Agreements and Instruments”"), except for such defaults that would under Agreements and Instruments that, in the reasonable judgment of the Company, are not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not expected to result in a Material Adverse Effect; and the execution, delivery and performance of this Agreementthe Operative Documents by the Trust or the Company, as the case may be, the Indenture issuance, sale and delivery of the Capital Securities and the Securities and Subordinated Debt Securities, the consummation of the transactions contemplated herein and in by the Registration StatementOperative Documents, the Time of Sale Information and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company Trust and the Guarantor Company with their obligations hereunder the terms of the Operative Documents to which they are a party have been duly authorized by all necessary corporate action on the part of the Company and, on the Closing Date, will have been duly authorized by all necessary action on the part of the Trust and under the Indenture and the Securities does 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 Guarantor 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 or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect)Instruments, nor will such action result in any violation of the provisions of the articles of incorporation or charter, by-laws or code of regulations of the Company, the Guarantor 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 Guarantor 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 Guarantor Company or any Subsidiaryof its Significant Subsidiaries or Insurance Subsidiaries prior to its scheduled maturity.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of its Subsidiaries is in violation of its articles of incorporation charter or by-laws or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, default in the performance or observance of any obligation, agreement, covenant or condition contained in any contractcontract (including, but not limited to, the Amended and Restated Delta Connection Agreement, dated as of September 8, 2005, by and between SkyWest Airlines, Inc. and Delta Air Lines, Inc., the Second Amended and Restated Delta Connection Agreement, dated as of September 8, 2005, by and between ASA and Delta Air Lines, Inc. and the United Express Agreement, dated as of July 31, 2003, as amended, by and between SkyWest Airlines, Inc. and United Air Lines, Inc.), indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Guarantor 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 Guarantor Company or any Subsidiary is subject (collectively, the “"Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, ") 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 Indenture and the Securities Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company and the Guarantor with their its obligations hereunder have been duly authorized by all necessary corporate action and under the Indenture and the Securities does 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 Guarantor Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches 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 articles of incorporation charter or by-laws of the Company, the Guarantor Company or any Subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 Guarantor Company or any Subsidiary.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor nor any The Company is not in violation of its Amended and Restated Certificate of Incorporation (“Charter”) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its articles organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of incorporation its Subsidiaries is in default in the performance or by-laws or in defaultobservance (nor has any event occurred which with notice, and no event has occurred that with notice or lapse of time or both would constitute such a default, default in the performance observance or observance 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 Guarantor Company or any Subsidiary is a party or by which it the Company or any Subsidiary may be bound, or to which any of the property or assets of the Company, the Guarantor Company or any Subsidiary is subject (collectively, the “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement, the Indenture and the Securities Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described in the Registration Statement, the Time of Sale Information Statement and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor with their its obligations hereunder and under the Indenture thereunder have been duly authorized by all necessary corporate action and the Securities does 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 Guarantor Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches 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 articles of incorporation Charter or by-laws Bylaws of the Company, Company or the Guarantor or organizational documents of any Subsidiary or (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 Guarantor Company or any Subsidiary.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of its subsidiaries is in violation of its articles of incorporation charter or by-laws (or other organizational documents) or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor 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 Guarantor Company or any Subsidiary of its subsidiaries is subject (collectively, the “Agreements and Instruments”), except for such violations or defaults that would could not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not reasonably be expected to result in a Material Adverse Effect; and the . The execution, delivery and performance of this Underwriting Agreement, the applicable Terms Agreement and the Indenture and any other agreement or instrument entered into or issued or to be entered into or issued by the Securities Company and each Guarantor in connection with the transactions contemplated hereby or thereby or in the Registration Statement, the Prospectus and the Disclosure Package and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information Prospectus and the Prospectus Disclosure Package (including the issuance and sale of the Underwritten Securities and the use of the proceeds from the sale of the Underwritten Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”” in the Prospectus and the Disclosure Package relating to such Underwritten Securities) and compliance by the Company and the each Guarantor with their respective obligations hereunder and under the Indenture thereunder have been duly authorized by all necessary corporate action and the Securities does 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 Guarantor Company or any Subsidiary of its subsidiaries pursuant to, the any Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect)Instruments, nor will such action result in any violation of the provisions of the articles of incorporation charter or by-laws (or other organizational documents) of the Company, the Guarantor Company or any Subsidiary of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor Company or any Subsidiary of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Guarantor Company or any Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. Neither None of the Company, the Guarantor Company nor any Subsidiary of the Guarantors is in violation of its articles of incorporation limited partnership agreement, articles, charter or by-by laws or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease lease, license or other agreement or instrument to which any of the Company, Company or the Guarantor or any Subsidiary Guarantors is a party or by which it or any of them may be bound, or to which any of the Company or the Guarantors or the property or assets of any of the Company, Company or the Guarantor or any Subsidiary Guarantors is subject (collectively, the “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, the Securities, the Indenture and the Securities and the consummation of the transactions contemplated herein therein and in the Registration Statement, the Time of Sale Information Disclosure Package and the Prospectus (including the issuance authorization, issuance, sale and sale delivery of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by each of the Company and the Guarantor Guarantors with their its obligations hereunder has been duly authorized by all necessary action and under the Indenture and the Securities does do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of any of the Company, Company or the Guarantor or any Subsidiary Guarantors pursuant to, the Agreements and Instruments (except for such conflicts, breaches 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 or conflict with the provisions of the articles of incorporation limited partnership agreement, charter or by-by laws of any of the CompanyCompany or the Guarantors, the Guarantor resolutions of the general partner, unitholders, shareholders, directors or any Subsidiary committee of directors of any of the Company or the Guarantors or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or instrumentality, court, domestic or foreign, or stock exchange having jurisdiction over any of the Company, Company or the Guarantor or any Subsidiary Guarantors or any of their assets, properties or operationsoperations (except for such violations or conflicts that would not result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by any of the Company, Company or the Guarantor or any SubsidiaryGuarantors.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary is in violation of its articles of incorporation charter, bylaws or by-laws other organizational documents or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 agreementagreement (including any Credit Facility), note, lease or other agreement or instrument to which the Company, the Guarantor Company 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 Guarantor Company or any Subsidiary Subsidiary, is subject (collectively, the “Agreements and Instruments”), ) except for such defaults violations or defaults, singly or in the aggregate, that are not resulting or would not reasonably be expected to result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse EffectChange; and the execution, delivery and performance of this Agreement, the Indenture and the Securities Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information Pricing Disclosure Package and the Prospectus (including the issuance and sale of the Public Securities and by the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”Company) and compliance by the Company and the Guarantor with their its obligations hereunder have been duly authorized by all necessary corporate action and under the Indenture and the Securities does do not and will not, whether with or without the giving of notice or passage of time or both: (A) result in any violation of the provisions of the Company’s articles of incorporation (the “Charter”), the Company’s Certificate of Designation 8.25% Series A Cumulative Redeemable Perpetual Preferred Shares (the “Certificate of Designation”) or the Company’s bylaws (the “Bylaws”) or any other organization document of the Company or any Subsidiary, or (B) 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 Guarantor Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or breaches, defaults, Repayment Events, liens, charges or encumbrances that are not, singly or in the aggregate, resulting or would not reasonably be expected, singly or in the aggregate, to result in a Material Adverse EffectChange), nor will such action or result in any violation of the provisions of the articles of incorporation or by-laws of the Company, the Guarantor or any Subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality instrumentality, self-regulatory organization or other non-governmental regulatory authority (including without limitation, the rules and regulations of the NASDAQ Stock Market (“Nasdaq”)) or court, domestic or foreign, having jurisdiction over the Company, the Guarantor Company or any Subsidiary or any of their assets, properties or operations, except for such violations that are not resulting or 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 behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Guarantor Company or any Subsidiary.

Absence of Defaults and Conflicts. Neither the CompanyThe Company is not in violation of its Amended and Restated Certificate of Incorporation, the Guarantor nor any as amended (“Charter”) or its Second Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its articles organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of incorporation its Subsidiaries is in default in the performance or by-laws or in defaultobservance (nor has any event occurred which with notice, and no event has occurred that with notice or lapse of time or both would constitute such a default, default in the performance observance or observance 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 Guarantor Company or any Subsidiary is a party or by which it the Company or any Subsidiary may be bound, or to which any of the property or assets of the Company, the Guarantor Company or any Subsidiary is subject (collectively, the “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement, the Indenture and the Securities Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described in the Registration Statement, the Time of Sale Information Statement and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor with their its obligations hereunder and under the Indenture thereunder have been duly authorized by all necessary corporate action and the Securities does 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 Guarantor Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches 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 articles of incorporation Charter or by-laws Bylaws of the Company, Company or the Guarantor or organizational documents of any Subsidiary or (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 Guarantor Company or any Subsidiary.

Absence of Defaults and Conflicts. Neither the CompanyNone of Gold Xxxx, the Guarantor nor New Gold Xxxx or any Subsidiary of their respective subsidiaries is in violation of its articles of incorporation or their respective charter, by-laws laws, or similar organizational documents, or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor or any Subsidiary it is a party or by which it may be bound, or to which any of the property or assets of the CompanyGold Xxxx, the Guarantor New Gold Xxxx or any Subsidiary of their respective subsidiaries is subject (collectively, the “Agreements and Instruments”), ) except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture execution, delivery and performance of the Securities and Plan of Conversion, the consummation of the transactions contemplated herein in this Agreement and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Of Proceeds”) ), the consummation of the transactions contemplated in the Plan of Conversion (including the consummation of the Conversion and the issuance of the Member Securities), and the compliance by the Company Gold Xxxx and New Gold Xxxx with their respective obligations under this Agreement and the Guarantor with their obligations hereunder Plan of Conversion has been duly authorized by all necessary corporate action and under the Indenture and the Securities does not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the CompanyGold Xxxx, the Guarantor New Gold Xxxx or any Subsidiary of their respective subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches 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 articles of incorporation or charter, by-laws laws, or similar organizational documents, of the CompanyGold Xxxx, the Guarantor New Gold Xxxx or any Subsidiary of their respective subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the CompanyGold Xxxx, the Guarantor or any Subsidiary New Gold Xxxx or any of their respective subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the CompanyGold Xxxx, the Guarantor New Gold Xxxx or any Subsidiaryof their respective subsidiaries.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of its subsidiaries is in violation of its articles of incorporation charter or by-laws or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor 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 Guarantor Company or any Subsidiary of its subsidiaries is subject (collectively, the “Agreements and Instruments”), ) except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities and the consummation of the transactions contemplated herein and in the Registration Statement, Statement and any other agreement or instrument entered into or issued or to be entered into or issued by the Time of Sale Information Company in connection with the transactions contemplated hereby or thereby or in the Registration Statement and the Prospectus consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor with their its obligations hereunder and under the Indenture thereunder, have been duly authorized by all necessary corporate action and the Securities does 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 Guarantor Company or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, 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 articles of incorporation charter or by-laws of the Company, the Guarantor Company or any Subsidiary of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 Guarantor Company or any Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. Neither the Company, Adviser nor the Guarantor nor any Subsidiary Administrator is in violation of its articles certificate of incorporation limited partnership or by-laws certificate of formation, as applicable, or limited partnership operating agreement or limited liability company operating agreement, as applicable, or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor 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 Guarantor or any Subsidiary is subject (collectively, the “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable law, statute, law, rule, regulation regulation, judgment, order or judicial or administrative decree, writ, judgment or order, 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 Indenture Investment Advisory Agreement and the Securities Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement, the Time of Sale Information Pricing Disclosure Package and the Prospectus (including the issuance and sale of the Securities and Underlying Securities and the use of the proceeds from the sale of the Securities and Underlying Securities as described in the Registration Statement, the Time of Sale Information Pricing Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor Adviser with their its obligations hereunder and under the Indenture Investment Advisory Agreement and by the Securities does 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 Guarantor or any Subsidiary Administrator pursuant to, the Agreements and Instruments (to such Agreement except for such conflicts, breaches violations or defaults or liens, charges or encumbrances 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, nor will such action result in any violation of the provisions of the articles of incorporation limited partnership or by-laws limited liability company operating agreement, as applicable, of the CompanyAdviser or Administrator, the Guarantor 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 Guarantor 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 Guarantor or any Subsidiaryas applicable.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor nor any Subsidiary The Fund is not in violation of its articles declaration of incorporation trust or by-laws laws, each as amended from time to time, or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor or any Subsidiary it is a party or by which it may be bound, or to which any of the property or assets of the Company, the Guarantor or any Subsidiary Fund is subject (collectively, the “"Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, ") 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 Indenture Investment Management Agreement, each Sub-Advisory Agreement, the Administration and Accounting Services Agreement, the Custodian Services Agreement and the Securities Transfer Agency Services Agreement referred to in the Registration Statement (as used herein, the "Management Agreement," the "Sub-Advisory Agreements," the "Administration Agreement," the "Custodian Agreement" and the "Transfer Agency Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company and the Guarantor Fund with their its obligations hereunder have been duly authorized by all necessary Fund actions and under the Indenture and the Securities does 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 Guarantor or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the articles declaration of incorporation trust or by-laws of the CompanyFund, the Guarantor or any Subsidiary each as amended from time to time, or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor or any Subsidiary Fund or any of their its 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 portion of such indebtedness by the Company, the Guarantor or any SubsidiaryFund.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor nor any Subsidiary The Fund is not in violation of its articles agreement and declaration of incorporation trust or by-laws laws, each as amended from time to time, or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor or any Subsidiary it is a party or by which it may be bound, or to which any of the property or assets of the Company, the Guarantor or any Subsidiary Fund is subject (collectively, the “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, ) 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 Indenture Investment Advisory Agreement dated as of [•], 2007 between the Fund and the Securities Investment Adviser (the “Investment Advisory Agreement”), the Amended and Restated Master Custodian Agreement dated as of February 25, 2005 and effective as of [•], 2007, between the Fund and State Street Bank and Trust Company (the “Custodian Agreement”) and the Shareholder Transfer Agency and Service Agreement dated as of October 7, 2002 and effective as of [•], 2007, between the Fund and State Street Bank and Trust Company (the “Transfer Agency Agreement”) and any other material agreements and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor Fund with their its obligations hereunder have been duly authorized by all necessary corporate action and under the Indenture and the Securities does 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 Guarantor or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the articles agreement and declaration of incorporation trust or by-laws of the CompanyFund, the Guarantor or any Subsidiary each as amended from time to time, or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 Guarantor or any SubsidiaryFund.

Absence of Defaults and Conflicts. Neither The Company is not in violation of its Charter or By-laws; none of the Company, the Guarantor nor any Subsidiary Subsidiaries is in violation of its articles charter or bylaws and neither the Company nor any of incorporation or by-laws or its Subsidiaries is in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor 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 Guarantor Company or any Subsidiary is subject (collectively, the “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, ) 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, the Indenture Agreement and the Securities Deposit Agreement and the consummation of the transactions contemplated herein and therein, and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor with their its obligations hereunder and under the Indenture Deposit Agreement have been duly authorized by all necessary corporate action and the Securities does 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 Guarantor Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result result, singly or in the aggregate, in a Material Adverse Effect), ; nor will such action result in any violation of the provisions of the articles Charter or By-laws of incorporation the Company or the charter or by-laws of the Company, the Guarantor 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 governmental agency or body or court, domestic or foreignforeign (each a “Governmental Entity”), having jurisdiction over the Company, the Guarantor Company or any Subsidiary or any of their assets, properties or operationsoperations (except for such violations that would not result, singly or in the aggregate, 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 Guarantor Company or any Subsidiary.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor nor any Subsidiary is in violation of its articles of incorporation or by-laws or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Guarantor or any Subsidiary is a party or by which it may be bound, or to which any of the property or assets of the Company, the Guarantor or any Subsidiary is subject (collectively, the “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect Effect, or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor with their obligations hereunder and under the Indenture and the Securities does not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Guarantor or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the articles of incorporation or by-laws of the Company, the Guarantor or any Subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 Guarantor or any Subsidiary.

Absence of Defaults and Conflicts. Neither of the Company, the Guarantor Issuers nor any Subsidiary of their Subsidiaries is in violation of its articles of incorporation charter, regulations or by-laws or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor Issuers 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 Guarantor Issuers or any Subsidiary of their Subsidiaries is subject (collectively, the “Agreements and Instruments”), ) except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture Indenture, the Guaranty and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Issuers in connection with the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”) and compliance by each of the Company and the Guarantor Issuers with their its obligations hereunder and under the Indenture Indenture, the Guaranty and the Securities does 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 Guarantor Issuers or any Subsidiary of their Subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches breaches, defaults or defaults 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 articles of incorporation charter or by-laws of the Company, the Guarantor Issuers or any Subsidiary of their Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor Issuers or any Subsidiary of their 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 Guarantor Issuers or any Subsidiaryof their Subsidiaries.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of its subsidiaries is in violation of its articles of incorporation charter or by-laws or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor 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 Guarantor Company or any Subsidiary of its subsidiaries is subject (collectively, the “Agreements and Instruments”), ) except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in reasonably be expected to have a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture Indenture, the Securities and the Securities Capped Call Confirmations and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) ,” and the issuance of shares of Common Stock upon conversion of the Securities), and compliance by the Company and the Guarantor with their its obligations hereunder and under the Indenture Indenture, the Securities and the Securities does Capped Call Confirmations 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 Guarantor Company or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches 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 articles of incorporation charter or by-laws of the Company, the Guarantor Company or any Subsidiary of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor Company or any Subsidiary of its subsidiaries or any of their material assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Guarantor Company or any Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor nor any Subsidiary The Fund is not in violation --------------------------------- of its articles agreement and declaration of incorporation trust or by-laws laws, each as amended from time to time, or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor or any Subsidiary it is a party or by which it may be bound, or to which any of the property or assets of the Company, the Guarantor or any Subsidiary Fund is subject (collectively, the “"Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, ") 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 Indenture Investment Advisory Agreement dated as of November [ ], 2005 between the Fund and the Securities Investment Adviser (the "Investment Advisory Agreement"), the Custodian Contract dated as of August 19, 2002, effective as of November [ ], 2005, between the Fund and State Street Bank and Trust Company (the "Custodian Agreement") and the Shareholder Transfer Agency and Service Agreement dated as of October 7, 2002, effective as of November [ ], 2005, between the Fund and State Street Bank and Trust Company (the "Transfer Agency Agreement") and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company and the Guarantor Fund with their its obligations hereunder have been duly authorized by all necessary corporate action and under the Indenture and the Securities does 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 Guarantor or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the articles agreement and declaration of incorporation trust or by-laws of the CompanyFund, the Guarantor or any Subsidiary each as amended from time to time, or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Guarantor or any SubsidiaryFund.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of its Subsidiaries is in violation of its articles of incorporation charter or by-laws or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor Company or any Subsidiary of its Subsidiaries is a party or by which it or any or them may be bound, or to which any of the property or assets of the Company, the Guarantor Company or any Subsidiary of its Subsidiaries is subject (collectively, the “Agreements and Instruments”"AGREEMENTS AND INSTRUMENTS"), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture Indenture, the Registration Rights Agreement, the Bank Amendment and the Securities 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 connection with the Acquisitions and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus Offering Memorandum under the caption “"Use of Proceeds”") and compliance by each of the Company and the Guarantor Issuers with their its respective obligations hereunder and under the Indenture and the Securities does do not and will not, whether with or without the giving of notice or passage pas- sage 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 Guarantor Company or any Subsidiary of its Subsidiaries pursuant to, to the Agreements and Instruments (Instruments, except for such conflicts, breaches or defaults or liens, charges or encumbrances that are cured prior to the Closing Time or 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 articles of incorporation charter or by-laws of the Company, the Guarantor Company or any Subsidiary of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor Company or any Subsidiary of its Subsidiaries or any of their assets, properties assets or operationsproperties. 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 right, pursuant to the express written provisions thereof, to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Guarantor Company or any Subsidiaryof its Subsidiaries.

Absence of Defaults and Conflicts. Neither None of the Company, the Guarantor nor Company or any Subsidiary of its subsidiaries is (i) in violation of its articles of incorporation or by-laws or in defaultOrganizational Documents, and no event has occurred that with notice or lapse of time or both would constitute such a default, in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Guarantor or any Subsidiary is a party or by which it may be bound, or to which any of the property or assets of the Company, the Guarantor or any Subsidiary is subject (collectively, the “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or ii) in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor with their obligations hereunder and under the Indenture and the Securities does not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Guarantor or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the articles of incorporation or by-laws of the Company, the Guarantor or any Subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor Company or any Subsidiary of its subsidiaries or any of their respective assets, properties or operationsoperations or (iii) in breach or default (or with or without the giving of notice or the passage of time or both, would be in breach or default) in the performance or observance of any obligation, agreement, covenant or condition contained in any Company Document, except in the case of clauses (ii) or (iii) for such violations, breaches or defaults that would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. As used hereinThe execution, delivery and performance by the Company and the Guarantors of the Transaction Documents and the consummation of the transactions contemplated therein and in the Preliminary Offering Memorandum, the General Disclosure Package and the Offering Memorandum (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Preliminary Offering Memorandum and the Offering Memorandum under the caption “Use of Proceeds”) and compliance by the Company and the Guarantors with their obligations under the Transaction Documents 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, Termination Event or Repayment Event under, or result in the creation or imposition of any Lien upon any property or assets of the Company or any of its subsidiaries pursuant to, any Company Documents except for any such conflict, breach, Termination Event, Repayment Event” means , or Lien that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or as would not materially adversely affect the ability of the Company and the Guarantors to consummate the transactions contemplated herein. Such actions will not result in any event violation of (i) the provisions of the Organizational Documents of the Company or condition which gives the holder any of its subsidiaries or (ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any notegovernment, debenture government instrumentality or other evidence of indebtedness (court, domestic or foreign, having jurisdiction over the Company or any person acting on such holder’s behalf) of the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Guarantor Guarantors or any Subsidiaryof its or their respective assets, properties or operations except in the case of clause (ii) as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or as would not materially adversely affect the ability of the Company and the Guarantors to consummate the transactions contemplated herein.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor nor any Subsidiary The Fund is not in violation of its articles of incorporation charter or by-laws laws, or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor or any Subsidiary it is a party or by which it may be bound, or to which any of the property or assets of the Company, the Guarantor or any Subsidiary Fund is subject (collectively, the “Agreements and InstrumentsAGREEMENTS AND INSTRUMENTS”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, ) except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, any Purchase Agreements, the Indenture Investment Advisory Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Agreement and the Securities 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 “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated herein in the Offering Agreements and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities Shares to the Investors and the use of the proceeds from the sale of the Securities Shares as described in the Registration Statement, the Time of Sale Information General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company Fund with its obligations thereunder have been duly authorized by all necessary corporate action and the Guarantor with their obligations hereunder and under the Indenture and the Securities does 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 Guarantor or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the articles of incorporation charter or by-laws of the Company, the Guarantor or any Subsidiary Fund or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 Guarantor or any SubsidiaryFund.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of its subsidiaries is (i) in violation of its articles of incorporation operating agreement, charter, bylaws or by-laws other comparable governing document or (ii) in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor 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 Guarantor Company or any Subsidiary of its subsidiaries is subject (collectively, the “Agreements and Instruments”), except with respect to clause (ii) for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, the Indenture , the Notes 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 Securities Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information General Disclosure Package and the Prospectus (including the issuance and sale of the Securities Notes and the use of the proceeds from the sale of the Securities Notes as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor with their its obligations hereunder and under the Indenture thereunder have been duly authorized by all necessary limited liability company action and the Securities does 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 Guarantor Company or any Subsidiary of its subsidiaries pursuant to, the any Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the articles of incorporation charter or by-laws bylaws of the Company, the Guarantor Company or any Subsidiary of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 Guarantor Company or any Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor nor any Subsidiary The Trust is not in violation of its articles agreement and declaration of incorporation trust or by-laws laws, each as amended from time to time, or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor or any Subsidiary it is a party or by which it may be bound, or to which any of the property or assets of the Company, the Guarantor or any Subsidiary Trust is subject (collectively, the “"Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, ") 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 Indenture Management Agreement, the Administration Agreement, the Custodian Agreement and the Securities Transfer Agency and Service Agreement referred to in the Registration Statement (as used herein, the "Management Agreement," the "Administration Agreement", the "Custodian Agreement" and the "Transfer Agency Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company and the Guarantor Trust with their its obligations hereunder have been duly authorized by all necessary corporate action and under the Indenture and the Securities does 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 Guarantor or any Subsidiary Trust pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation (except for such violations that will not result in a Material Adverse Effect) of the provisions of the articles agreement and declaration of incorporation trust or by-laws of the CompanyTrust, the Guarantor or any Subsidiary each as amended from time to time, or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor or any Subsidiary Trust or any of their its assets, properties or operations, other than State securities or "blue sky" laws applicable in connection with the purchase and distribution of the Securities by the Underwriters pursuant to this Agreement. 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 Guarantor or any SubsidiaryTrust.

Absence of Defaults and Conflicts. Neither None of the Company, the Guarantor nor any Subsidiary DB Entities is (A) in violation of its articles of incorporation constituent documents, charter or by-laws or (B) in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor or any Subsidiary DB Entities 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 Guarantor or any Subsidiary DB Entity is subject (collectively, the “Agreements and Instruments”), except for such violations or defaults that would not result in have a Material Adverse Effect or in violation material adverse effect on the ability of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the relevant DB Entity to perform its obligations under the Transaction Documents (as defined below). The execution, delivery and performance by the DB Entities of this Agreement, the Indenture Trust Agreement, the LLC Agreement, the Guarantees, the Initial Obligation, the Services Agreement among the Guarantor, the Trust and the Company to be dated on or about February •, 2008, the Subordinated Deposit Agreement between the Company and the Guarantor to be dated on or about February •, 2008 and the Agency Agreement among the Trust, the Company, The Bank of New York and Deutsche Bank Trust Company Americas to be dated on or about February •, 2008 (collectively, the “Transaction Documents”) and the Securities and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”) and compliance by the Trust, the Company and the Guarantor with their respective obligations hereunder and under the Indenture Transaction Documents and the Securities does 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, DB Entities or any subsidiary of the Guarantor or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches 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 (A) the provisions of the articles of incorporation constituent documents, charter or by-laws of the Company, DB Entities or any subsidiary of the Guarantor or any Subsidiary or (B) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, DB Entities or any subsidiary of the Guarantor or any Subsidiary or any of their assets, properties or operationsoperations (except, with respect to (B), for such violations that would not result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Guarantor DB Entities or any Subsidiarysubsidiary of the Guarantor.

Absence of Defaults and Conflicts. Neither The Company is not in violation of its Amended Articles of Incorporation, as amended, (the Company“Charter”), or Amended and Restated Regulations, as amended (the Guarantor nor any Subsidiary “Bylaws”); none of the Subsidiaries is in violation of its articles charter, bylaws or other organizational documents and neither the Company nor any of incorporation or by-laws or its Subsidiaries is in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor 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 Guarantor Company or any Subsidiary is subject (collectively, the “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statutelaw or statute or any judgment, law, rule, regulation or judicial or administrative decree, writ, judgment or order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except in each case for such violations or defaults that would not not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities Agreement and the consummation of the transactions contemplated herein and therein, and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor with their its obligations hereunder have been duly authorized by all necessary corporate action and under the Indenture and the Securities does 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 Guarantor Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect), ; nor will such action result in any violation of the provisions of the articles of incorporation Charter or by-laws Bylaws of the CompanyCompany or the charter, the Guarantor bylaws or other organizational document of 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 Guarantor Company or any Subsidiary or any of their assets, properties or operationsoperations (except for such violations that would not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Guarantor Company or any Subsidiary.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor nor any Subsidiary The Fund is not in violation of its articles Certificate of incorporation Trust, Declaration of Trust or by-laws or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor or any Subsidiary Fund is a party or by which it may be bound, or to which any of the property or assets of the Company, the Guarantor or any Subsidiary Fund is subject (collectively, the “Agreements and Instruments”), ) except for such defaults that would do not result in a involve Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations Fund Agreements (as defined below) and material instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement or the Investment Advisory Agreement dated as of March 28, 2005 among the Fund and the Adviser (the “Management Agreement”), the Indenture Custodian Agreement dated as of March 28, 2005 among the Fund and the Securities Custodian, the Registrar, Transfer Agent and Registrar Service Agreement dated as of March 31, 2005 between the Fund and American Stock Transfer & Trust Company, and the Automatic Dividend Reinvestment and Voluntary Cash Purchase Plan (each, a “Material Fund Agreement”) and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor Fund with their its obligations hereunder and under the Indenture Securities have been duly authorized by all necessary corporate action and the Securities does 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 Guarantor or any Subsidiary Fund pursuant to, the Agreements and Instruments any Material Fund Agreement (except for such conflicts, breaches or breaches, defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the articles Certificate of incorporation Trust, Declaration of Trust or by-laws of the Company, the Guarantor or any Subsidiary Fund or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor or any Subsidiary Fund or any of their its assets, properties or operations. As used herein, except for violations that would not result in a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Guarantor or any SubsidiaryMaterial Adverse Effect.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of its subsidiaries is in violation of its articles of incorporation charter or by-laws bylaws or its partnership agreement, as the case may be, or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor Company or any Subsidiary of its subsidiaries is a party or by which it any of them may be bound, or to which any of the property respective properties or assets of the Company, the Guarantor Company or any Subsidiary subsidiary is subject (collectively, the “"Agreements and Instruments”"), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in have a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities to repay borrowings under the Revolving Credit Agreement dated as of December 14, 1999 among the Company, the banks named therein, The Bank of New York, as agent and swing line bank, First Union National Bank, as syndication agent, Xxxxx Fargo Bank, National Association, as documentation agent, Bank of Montreal as co-agent and BNY Capital Markets, Inc., as arranger, as amended by Amendment No. 1 thereto dated as of January 21, 2000 and extended pursuant to the Extension Agreement dated April 25, 2001 (as so amended and extended, and as the same may have been further amended or extended, the "Acquisition Credit Agreement"), as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company and the Guarantor with their its obligations hereunder have been duly authorized by all necessary corporate action and under the Indenture and the Securities does 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 Guarantor Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (any Agreement or Instrument, except for such conflicts, breaches or defaults or liens, charges or encumbrances that that, individually or in the aggregate, would not result in have a Material Adverse Effect), nor will such action result in any violation of the provisions of the articles of incorporation charter or by-laws bylaws of the Company, the Guarantor or any Subsidiary Company or any applicable law, statute, rule, regulation, or governmental or court judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 Guarantor Company or any Subsidiarysubsidiary of the Company or any of its subsidiaries.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor nor any Subsidiary The Fund is not in violation of its articles of incorporation charter or by-laws laws, or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor or any Subsidiary it is a party or by which it may be bound, or to which any of the property or assets of the Company, the Guarantor or any Subsidiary Fund is subject (collectively, the “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, "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 AgreementAgreement and any Purchase Agreements (collectively, the Indenture and the Securities "OFFERING AGREEMENTS") and the consummation of the transactions contemplated herein in the Offering Agreements and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities Shares to the Investors and the use of the proceeds from the sale of the Securities Shares as described in the Registration Statement, the Time of Sale Information General Disclosure Package and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company Fund with its obligations thereunder have been duly authorized by all necessary corporate action and the Guarantor with their obligations hereunder and under the Indenture and the Securities does 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 Guarantor or any Subsidiary Fund pursuant to, the Agreements and Instruments 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 or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the articles of incorporation charter or by-laws of the Company, the Guarantor or any Subsidiary Fund or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 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 Guarantor or any SubsidiaryFund.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of its subsidiaries is in violation of its articles of incorporation constating documents or by-laws or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease lease, license or other agreement or instrument to which the Company, the Guarantor 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 Guarantor Company or any Subsidiary subsidiary is subject (collectively, the “Agreements and Instruments”), ) except for such defaults that would not result in a Material Adverse Effect individually or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result the aggregate in a Material Adverse Effect; and the execution, delivery and performance of this Underwriting Agreement, the Indenture and the Securities and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information U.S. Prospectus and the Canadian Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information U.S. Prospectus and the Canadian Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor with their its obligations hereunder and under the Indenture and the Securities does do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Guarantor Company or any Subsidiary of its subsidiaries or pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result individually or in the aggregate in a Material Adverse Effect), nor will such action result in any violation of the provisions of the articles of incorporation constating documents or by-laws of the Company, the Guarantor Company or any Subsidiary subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor Company or any Subsidiary subsidiary or any of their assets, properties or operationsoperations which violation would 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 Guarantor Company or any Subsidiaryof the subsidiaries.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of its subsidiaries is in violation of its articles of incorporation charter or by-laws or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor 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 Guarantor Company or any Subsidiary subsidiary is subject (collectively, the “"Agreements and Instruments”"), except for such defaults under Agreements and Instruments that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture Agreement and the Securities U.S. Purchase Agreement and the consummation of the transactions contemplated herein in this Agreement, the U.S. Purchase Agreement and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus Prospectuses under the caption “"Use of Proceeds”" and the completion of the Recapitalization) and compliance by the Company and the Guarantor CHS with their obligations hereunder under this Agreement and the U.S. Purchase Agreement have been duly authorized by all necessary corporate action and, after giving effect to the use of proceeds as contemplated in the Prospectuses under the Indenture and the Securities does caption "Use of Proceeds," 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 Guarantor CHS or any Subsidiary of their subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not reasonably be expected to result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the articles of incorporation charter or by-laws of the Company, the Guarantor CHS or any Subsidiary or of their subsidiaries or, any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor CHS or any Subsidiary of their 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 Guarantor CHS or any Subsidiaryof their subsidiaries.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor nor any Subsidiary The Company is not in violation of its articles of incorporation charter or by-laws bylaws or in default, and no event has occurred that default (or with the giving of notice or lapse of time or both would constitute such a 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 Guarantor or any Subsidiary Company is a party or by which it may be bound, or to which any of the property or assets of the Company, the Guarantor or any Subsidiary Company is subject (collectively, the “"Agreements and Instruments”), ") except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the . The Company's execution, delivery and performance of this Agreement, the Indenture and the Securities Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “"How We Intend to Use the Proceeds of Proceeds”This Offering") and compliance by the Company and the Guarantor with their its obligations hereunder have been duly authorized by all necessary corporate action and under the Indenture and the Securities does 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 Guarantor or any Subsidiary Company pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or breaches, defaults, 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 articles of incorporation charter or by-laws bylaws of the Company, the Guarantor or any Subsidiary Company or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Guarantor or any Subsidiary.

Absence of Defaults and Conflicts. Neither The Purchasers and the Company, the Guarantor nor any Subsidiary is CKX Subsidiaries are not in violation of its their respective articles of incorporation incorporation, memorandum of association, certificate of formation, bylaws, operating agreement or by-laws other organizational documents or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, agreement, lien, indenture, mortgage, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Guarantor or any Subsidiary it is a party or by which it may be is bound, or to which any either of the property or assets of the Company, the Guarantor CKX or any Subsidiary of the CKX Subsidiaries is subject (collectively, the “Agreements and Instruments”), except for such defaults that would where the violation could not result in reasonably be expected to have a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effectmaterial adverse effect; and the execution, execution and delivery of and performance of under this Agreement, the Indenture Transaction Documents and the Securities any other Agreements and Instruments, and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus or therein (including without limitation the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”CKX Shares) and compliance by the Company CKX and the Guarantor CKX Subsidiaries with their respective obligations hereunder and under the Indenture and the Securities does 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, of or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance Encumbrance upon any property or assets of the Company, the Guarantor Purchasers or any CKX Subsidiary pursuant to, the to such Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect)Instruments, nor will such action actions result in any violation of the or require any notice, consent or waiver or trigger any change of control provisions of the articles of incorporation or by-laws formation, bylaws, operating agreement or other organizational documents of the Company, the Guarantor CKX or any CKX Subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality court or court, domestic or foreign, governmental authority having jurisdiction over the CompanyCKX, the Guarantor or any CKX Subsidiary or any of their assets, properties respective assets 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 Guarantor or any Subsidiaryproperties.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor nor any Subsidiary The Fund is not in violation of its articles agreement and declaration of incorporation trust or by-laws laws, each as amended from time to time, or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor or any Subsidiary it is a party or by which it may be bound, or to which any of the property or assets of the Company, the Guarantor or any Subsidiary Fund is subject (collectively, the “"Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, ") 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 Indenture Investment Advisory Agreement dated as of [ ], 2004 between the Fund and the Securities Investment Adviser (the "Investment Advisory Agreement"), the Investment Management Agreement dated as of [ ], 2004 among the Fund, the Investment Adviser and the Investment Manager (the "Investment Management Agreement"), the Custodian Contract dated as of [ ], 2004 between the Fund and The Bank of New York (the "Custodian Agreement") and the Registrar, Transfer Agency and Service Agreement dated as of [ ], 2004 between the Fund and The Bank of New York (the "Stock Transfer Agency Agreement") and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company and the Guarantor Fund with their its obligations hereunder and have been duly authorized by all necessary action under the Indenture Delaware Statutory Trust Act (the "Delaware Act") and the Securities does 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 Guarantor or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation (except for such violations that will not result in a Material Adverse Effect) of the provisions of the articles agreement and declaration of incorporation trust or by-laws of the CompanyFund, the Guarantor or any Subsidiary each as amended from time to time, or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor or any Subsidiary Fund or any of their its assets, properties or operations, other than State securities or "blue sky" laws applicable in connection with the purchase and distribution of the Securities by the Underwriters pursuant to this Agreement. 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 Guarantor or any SubsidiaryFund.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of its subsidiaries is in violation of its articles of incorporation charter or by-laws or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor 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 Guarantor Company or any Subsidiary subsidiary is subject (collectively, the “"Agreements and Instruments”), ") except for such defaults that would could not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture Indenture, the New Senior Secured Credit Facilities, the DTC Agreement and the Securities Stock Purchase Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement, the Time of Sale Information and the Prospectus Statement after giving pro forma effect to all such transactions collectively (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “"Use of Proceeds”" and the issuance of the shares of Underlying Common Stock issuable upon conversion of the Securities) and compliance by the Company and the Guarantor with their its obligations hereunder and under the Indenture and the Securities does 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 Guarantor Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches breaches, defaults or defaults Repayment Events or liens, charges or encumbrances that would that, singly or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect), nor will such action result in any violation (except for such violations that, singly or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect) of the provisions of the articles of incorporation charter or by-laws of the Company, the Guarantor Company or any Subsidiary subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 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 Guarantor Company or any Subsidiarysubsidiary.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor nor any Subsidiary The Fund is not in violation of its articles of incorporation the Articles or by-laws laws, each as amended or supplemented to date, or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor or any Subsidiary Fund is a party or by which it may be bound, or to which any of the property or assets of the Company, the Guarantor or any Subsidiary Fund is subject (collectively, the “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, ) except for such violations or defaults (A) that do not involve Offering Agreements (as defined below) and (B) that would not not, individually or in the aggregate, result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture Investment Advisory Agreement dated as of October 3, 1994, as amended May 19, 1999, the Amended and Restated Master Custodian Agreement dated as of July 2, 2001, and the Securities Transfer Agency and Service Agreement, dated as of January 1, 2011, as amended from time to time, last amended on July 1, 2016, referred to in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” and the “Transfer Agency Agreement,” respectively and collectively the “Offering Agreements”) and the consummation of the transactions contemplated herein in the Offering Agreements and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described in the Registration Statement, the Time of Sale Information Preliminary Prospectus and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company Fund with its obligations thereunder have been duly authorized by all necessary corporate action and the Guarantor with their obligations hereunder and under the Indenture and the Securities does 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 Guarantor or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or breaches, defaults or liens, charges or encumbrances that would not not, individually or in the aggregate, result in a Material Adverse Effect), nor will such action result in (i) any violation of the provisions of the articles of incorporation Articles or by-laws of the Company, the Guarantor Fund or any Subsidiary or (ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor or any Subsidiary Fund or any of their its assets, properties or operations, except with respect to (ii) only, for such violations that would not, individually or in the aggregate, result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Guarantor or any SubsidiaryFund.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of its subsidiaries is in violation of its articles of incorporation charter or by-laws or other constituting or organizational document or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor 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 Guarantor Company or any Subsidiary subsidiary is subject (collectively, the “"Agreements and Instruments”), ") except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Registration Rights Agreement, the Indenture and the Securities and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus Offering Memorandum (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus Offering Memorandum under the caption “"Use of Proceeds”" and the issuance of the shares of Common Stock issuable upon conversion of the Securities) and compliance by the Company and the Guarantor with their its obligations hereunder hereunder, and under the Indenture Indenture, the Registration Rights Agreement and the Securities does not Securities, have been duly authorized by all necessary corporate action and will do 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 Guarantor Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the articles of incorporation charter or by-laws or other constituting or organizational instrument as in effect on the date hereof of the Company, the Guarantor Company or any Subsidiary subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor Company or any Subsidiary subsidiary or any of their assets, properties or operations, except for any such violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of law which would not result in a Material Adverse Effect. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Guarantor Company or any Subsidiarysubsidiary.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor nor any Subsidiary The Fund is not in violation of its articles agreement and declaration of incorporation trust or by-laws laws, each as amended from time to time, or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor or any Subsidiary it is a party or by which it may be bound, or to which any of the property or assets of the Company, the Guarantor or any Subsidiary Fund is subject (collectively, the “"Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, ") 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 Indenture Investment Advisory Agreement dated as of [ ], 2004 between the Fund and the Securities Investment Adviser (the "Management Agreement"), the Sub-Advisory Agreement dated as of [ ], 2004 among the Fund, the Investment Adviser and the Investment Sub-Adviser (the "Sub-Advisory Agreement"), the Custodian Contract dated as of [ ], 2004 between the Fund and [ ] (the "Custodian Agreement") and the Registrar, Transfer Agency and Service Agreement dated as of [ ], 2004 between the Fund and [ ] (the "Transfer Agency Agreement") and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company and the Guarantor Fund with their its obligations hereunder and have been duly authorized by all necessary action under the Indenture Delaware Statutory Trust Act (the "Delaware Act") and the Securities does 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 Guarantor or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation (except for such violations that will not result in a Material Adverse Effect) of the provisions of the articles agreement and declaration of incorporation trust or by-laws of the CompanyFund, the Guarantor or any Subsidiary each as amended from time to time, or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor or any Subsidiary Fund or any of their its assets, properties or operations, other than State securities or "blue sky" laws applicable in connection with the purchase 5 and distribution of the Securities by the Underwriters pursuant to this Agreement. 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 Guarantor or any SubsidiaryFund.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, UAP or the Guarantor nor any UAP Subsidiary is in violation of its articles of incorporation charter or by-laws or partnership agreement, as the case may be, or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease lease, license or other agreement or instrument to which the Company, the Guarantor Company or any Subsidiary of its subsidiaries or UAP or any of its subsidiaries is a party or by which it or any of its subsidiaries or UAP or any of its subsidiaries may be bound, or to which any of the property or assets of the Company, the Guarantor Company or any Subsidiary of its subsidiaries or UAP or any of its subsidiaries is subject (collectively, the “Agreements and Instruments”), ) except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a UAP Material Adverse Effect, as the case may be; and the execution, delivery and performance of this Agreement, the Indenture Agreement and the Securities Merger Agreement and the consummation of the transactions contemplated herein herein, therein and in the Registration Statement, the Time of Sale Information General Disclosure Package and the Prospectus Final Prospectuses (including the issuance and sale of the Securities Offered Shares and the use of the proceeds from the sale of the Securities Offered Shares as described in the Registration Statement, the Time of Sale Information General Disclosure Package and the Prospectus Final Prospectuses under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor with their its obligations hereunder and under the Indenture Merger Agreement have been duly authorized by all necessary corporate action and the Securities does 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) other than Repayment Events for UAP or its subsidiaries arising from the UAP Acquisition under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Guarantor Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults 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 or conflict with the provisions of the articles of incorporation charter or by-laws of the Company, the Guarantor Company or any Subsidiary of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, or stock exchange, having jurisdiction over the Company, the Guarantor 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 Guarantor Company or any Subsidiaryof its subsidiaries or by UAP or any of its subsidiaries, as the case may be.

Absence of Defaults and Conflicts. Neither the Company, the Parent Guarantor nor any Subsidiary of their subsidiaries is in violation of its articles of incorporation operating agreement, charter or by-laws laws, as applicable, or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Parent Guarantor or any Subsidiary of their subsidiaries is a party or by which it they or any of them may be bound, or to which any of the property or assets of the Company, the Parent Guarantor or any Subsidiary subsidiary is subject (collectively, the “Agreements and Instruments”), ) except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Parent Guarantor with their respective obligations hereunder and under the Indenture and the Securities does have been duly authorized by all necessary corporate or limited liability company 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 Parent Guarantor or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches 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 (i) the articles of incorporation operating agreement, charter or by-laws by‑laws, as applicable, of the Company, the Parent Guarantor or any Subsidiary subsidiary or (ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Parent Guarantor or any Subsidiary subsidiary or any of their assets, properties or operations, except, with respect to section (ii) above, 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 Parent Guarantor or any Subsidiarysubsidiary.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of its subsidiaries is in violation of its articles of incorporation charter or by-laws or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor 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 Guarantor Company or any Subsidiary of its subsidiaries is subject (collectively, the “"Agreements and Instruments”"), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations 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 the Indenture and any other agreement or instrument entered into or issued or to be entered into or issued by the Securities 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, the Time of Sale Information Statement and the Prospectus (including the issuance and sale of the Underwritten Debt Securities and the use of the proceeds from the sale of the Underwritten Debt Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company and the Guarantor with their its obligations hereunder and under the Indenture thereunder have been duly authorized by all necessary corporate action and the Securities does 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 Guarantor Company or any Subsidiary of its subsidiaries pursuant to, the any Agreements and Instruments (except for such conflicts, breaches or defaults breaches, defaults, events or liens, charges or encumbrances that would not result in a Material Adverse Effect), ) nor will such action result in any violation of the provisions of the articles of incorporation charter or by-laws of the Company, the Guarantor Company or any Subsidiary of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Guarantor Company or any Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. Neither None of the Simon Entities or, to the knowledge of the Company, the Guarantor nor any Subsidiary joint ventures or partnerships in which Simon Entities have an equity interest (“Property Partnerships”) is in violation of its articles of incorporation or charter, by-laws laws, certificate of limited partnership or partnership agreement or other organizational document, as applicable, or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor or any Subsidiary each entity is a party or by which it any of them may be bound, or to which any of the its property or assets of the Company, the Guarantor or any Subsidiary is Property may be bound or subject (collectively, the “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 or any significant subsidiary) or defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the Indenture Company and the Securities 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, the Time of Sale Information and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities therefrom as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor Operating Partnership with their obligations hereunder and under the Indenture thereunder have been duly authorized by all necessary action, and the Securities does 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 Guarantor Operating Partnership or any Subsidiary other Simon Entity or any Property Partnership pursuant to, the any Agreements and Instruments (Instruments, except for such conflicts, breaches breaches, defaults, Repayment Events or defaults 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 articles of incorporation charter or by-laws of the Company, the Guarantor OP Partnership Agreement or certificate of limited partnership of the Operating Partnership or the organizational documents of any Subsidiary other Simon Entity or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 knowledge of the Company, the Guarantor or any SubsidiaryProperty Partnership.

Absence of Defaults and Conflicts. Neither None of the Company, the Guarantor nor Simox XxXxxxxxx Entities or any Subsidiary Property Partnership is in violation of its articles of incorporation or charter, by-laws laws, certificate of limited partnership or partnership agreement or other organizational document, as the case may be, or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor 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 Guarantor or any Subsidiary is SDG Property may be bound or subject (collectively, the “"Agreements and Instruments”"), except for such violations or defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, the Indenture Remarketing Agreement, the Securities, the Indenture, the Registration Rights Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the Securities Operating Partnership 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, the Time of Sale Information and the Prospectus Offering Memorandum (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company and the Guarantor Operating Partnership with their its obligations hereunder and under the Indenture thereunder have been duly authorized by all necessary partnership action, and the Securities does 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 assets, properties or assets operations of the Company, the Guarantor Operating Partnership or any Subsidiary other Simox XxXxxxxxx Entity or any Property Partnership pursuant to, the any Agreements and Instruments (Instruments, except for such conflicts, breaches or defaults breaches, 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 articles partnership agreement and certificate of incorporation or by-laws limited partnership of the Company, Operating Partnership or the Guarantor or organizational documents of any Subsidiary other Simox XxXxxxxxx Xxxity or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the CompanyOperating Partnership, the Guarantor any other Simox XxXxxxxxx Xxxity or any Subsidiary Property Partnership or any of their assets, properties or operations, except for such violations that would not have a Material 15 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 CompanyOperating Partnership, the Guarantor any other Simox XxXxxxxxx Xxxity or any SubsidiaryProperty Partnership.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of its Subsidiaries, nor any Joint Venture, is (i) in violation of its articles of incorporation or charter, by-laws laws, operating agreement, partnership agreement or other applicable organizational documents, as the case may be, or (ii) in defaultdefault in the performance or observance nor has any event occurred which with notice, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor Company or any Subsidiary of its subsidiaries or any Joint Venture 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 Guarantor Company or any Subsidiary subsidiary or any Joint Venture is subject (collectively, the “Agreements and Instruments”)) except, except in the case of clause (ii) above, for such violations or defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor with their its obligations hereunder have been duly authorized by all necessary corporate action, and under the Indenture and the Securities does 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 Guarantor Company or any Subsidiary subsidiary or Joint Venture pursuant to, the Agreements and Instruments (except for such conflicts, breaches breaches, defaults or defaults 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 (Y) the provisions of the articles of incorporation or charter, by-laws laws, operating agreement, partnership agreement or other applicable organizational documents, as the as may be, of the Company, the Guarantor Company or any Subsidiary or Joint Venture or (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 Guarantor Company or any Subsidiary subsidiary or Joint Venture or any of their assets, properties or operationsoperations except, in the case of clause (Z), for such violations that would not reasonably be expected to result in a Material Adverse Effect. The Company and each subsidiary and Joint Venture is currently in compliance with all laws, statutes, rules, regulations, judgments, orders, writs or decrees of any government, government instrumentality or court, domestic or foreign, that are applicable to it and its properties, except where failure thereof 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 Guarantor Company or any Subsidiarysubsidiary or Joint Venture.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of its subsidiaries is in violation of its articles of incorporation or charter, by-laws laws, operating agreement or partnership agreement, as applicable, or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor 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 Guarantor Company or any Subsidiary of its subsidiaries is subject (collectively, the “Agreements and Instruments”), ) except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and filing with the SDAT of the Series B Articles Supplementary, the execution, delivery and filing with the SDAT of the Initial Increase Articles Supplementary, the execution, delivery and filing with the SDAT of the Further Increase Articles Supplementary (if required), the execution, delivery and performance of this Agreement, the Indenture and the Securities Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information General Disclosure Package and the Prospectus (including the issuance issuance, sale and sale delivery of the Securities and the use of the proceeds to the Company from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus therein under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor Operating Partnership with their respective obligations hereunder have been duly authorized by all necessary action and under the Indenture and the Securities does 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 Guarantor Company or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches 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 articles of incorporation or charter, by-laws laws, partnership agreement or operating agreement of the Company, the Guarantor Company or any Subsidiary of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 Guarantor Company or any Subsidiaryof its subsidiary.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor nor any Subsidiary --------------------------------- of its Subsidiaries is in violation of its articles of incorporation charter or by-laws or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor 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 Guarantor Company or any Subsidiary of its Subsidiaries is subject (collectively, the “"Agreements and Instruments”), ") except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture International Purchase Agreement, and the Securities Combination Agreements by the Company, and the consummation of the transactions contemplated herein in this Agreement, the International Purchase Agreement, the Combination Agreements, and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus Prospectuses under the caption “"Use of Proceeds”) "), and compliance by the Company with its obligations under this Agreement, the International Purchase Agreement, and the Guarantor with their obligations hereunder Combination Agreements have been duly authorized by all necessary corporate action and under the Indenture and the Securities does 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 Guarantor Company or any Subsidiary of its Subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults 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 articles of incorporation charter or by-laws of the Company, the Guarantor Company or any Subsidiary of its Subsidiaries or (ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 Guarantor Company or any Subsidiaryof its Subsidiaries.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor nor any Subsidiary The Fund is not in violation of its articles agreement and declaration of incorporation trust or by-laws laws, or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor or any Subsidiary it is a party or by which it may be bound, or to which any of the property or assets of the Company, the Guarantor or any Subsidiary Fund is subject (collectively, the “"Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, ") 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 Indenture Management Agreement, the Sub-Advisory Agreement, the Administration Agreement, the Custodian Agreement and the Securities Transfer and Dividend Disbursing Agent and Registrar Agreement referred to in the Registration Statement (as used herein, the "Management Agreement," the "Sub-Advisory Agreement," the "Administration Agreement," the "Custodian Agreement" and the "Transfer and Dividend Disbursing Agency and Registrar Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company and the Guarantor Fund with their its obligations hereunder have been duly authorized by all necessary corporate action and under the Indenture and the Securities does 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 Guarantor or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the articles agreement and declaration of incorporation trust or by-laws of the Company, the Guarantor or any Subsidiary Fund or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor or any Subsidiary Fund or any of their its assets, properties or operations, other than State securities or "blue sky" laws applicable in connection with the purchase and distribution of the Securities by the Underwriters pursuant to this Agreement. 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 Guarantor or any SubsidiaryFund.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of its Subsidiaries is in violation of its articles of incorporation (i) their respective charter or by-laws or (ii) in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor 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 Guarantor Company or any Subsidiary subsidiary is subject (collectively, the “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 result in a Material Adverse Effect not, individually or in violation of any applicable statutethe aggregate, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus (including the Company’s issuance and sale of the Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the its use of the proceeds Net Proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and 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 and the Guarantor with their its obligations hereunder have been or will be duly authorized by all necessary corporate action and under the Indenture and the Securities does 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 Guarantor Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (except as disclosed in the Registration Statement and the Prospectus and for such conflicts, breaches 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 articles of incorporation charter or by-laws of the Company, the Guarantor Company or any Subsidiary subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 Guarantor Company or any Subsidiarysubsidiary.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor nor any Subsidiary The Fund is not (i) in violation of its articles of incorporation charter or by-laws laws, or (ii) in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor or any Subsidiary it is a party or by which it may be bound, or to which any of the property or assets of the Company, the Guarantor or any Subsidiary Fund is subject (collectively, the “Agreements and InstrumentsAGREEMENTS AND INSTRUMENTS”)) except, except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except with respect to this clause (ii) for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture Investment Advisory Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Administration Agreement and the Securities Fund Accounting 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 “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated herein in the Offering Agreements and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described in the Registration Statement, the Time of Sale Information General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company Fund with its obligations thereunder have been duly authorized by all necessary corporate action and the Guarantor with their obligations hereunder and under the Indenture and the Securities does 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 Guarantor or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the articles of incorporation charter or by-laws of the Company, the Guarantor or any Subsidiary Fund or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 Guarantor or any SubsidiaryFund.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor nor any Subsidiary The Fund is not in violation of its articles agreement and declaration of incorporation trust or by-laws laws, each as amended from time to time, or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor or any Subsidiary it is a party or by which it may be bound, or to which any of the property or assets of the Company, the Guarantor or any Subsidiary Fund is subject (collectively, the “"Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, ") 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 Indenture Investment Advisory Agreement dated as of [ ], 2004 between the Fund and the Securities Investment Adviser (the "Management Agreement"), the Sub-Advisory Agreement dated as of [ ], 2004 among the Fund, the Investment Adviser and the Investment Manager (the "Sub-Advisory Agreement"), the Custodian Contract dated as of [ ], 2004 between the Fund and The Bank of New York (the "Custodian Agreement") and the Registrar, Transfer Agency and Service Agreement dated as of [ ], 2004 between the Fund and The Bank of New York (the "Transfer Agency Agreement") and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company and the Guarantor Fund with their its obligations hereunder and have been duly authorized by all necessary action under the Indenture Delaware Statutory Trust Act (the "Delaware Act") and the Securities does 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 Guarantor or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation (except for such violations that will not result in a Material Adverse Effect) of the provisions of the articles agreement and declaration of incorporation trust or by-laws of the CompanyFund, the Guarantor or any Subsidiary each as amended from time to time, or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor or any Subsidiary Fund or any of their its assets, properties or operations, other than State securities or "blue sky" laws applicable in connection with the purchase and distribution of the Securities by the Underwriters pursuant to this Agreement. 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 Guarantor or any SubsidiaryFund.

Absence of Defaults and Conflicts. Neither None of the CompanyBorrower, the Guarantor ------------------------------------- Guarantors nor any Subsidiary of their respective Subsidiaries (as defined below) is in violation of its articles of incorporation or by-laws constitutional documents or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor or any Subsidiary it is a party or by which it may be bound, or to which any of the its property or assets of the Company, the Guarantor or any Subsidiary is subject (collectively, the “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or ordersubject, except for such violations or defaults that would not individually or in the aggregate result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture Notes and the Securities Debenture and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information Notes and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration StatementDebenture, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company Borrower and the Guarantor Guarantors with their respective obligations hereunder and under the Indenture Notes and the Securities does Debenture have been duly authorized by all necessary corporate action, do not require the consent of any person (except such consents as have been obtained) 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 under any such contract, mortgage, deed of trust, loan or Repayment Event (as defined below) undercredit agreement, note, lease or other agreement or instrument referred to above, or, other than under the Debenture, result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, Borrower or the Guarantor or any Subsidiary pursuant to, the Agreements and Instruments Guarantors (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not individually or in the aggregate result in a Material Adverse Effect)) or permit any person to exercise any rights of pre-emption (except such as has been exercised or waived under the Existing Shareholders Agreement and the Existing Articles) or to terminate, accelerate the performance required by, or accelerate the maturity of any indebtedness or obligation of the Borrower or either Guarantor, nor will such action result in any violation of the provisions of the articles of incorporation or by-laws of the Company, the Guarantor or any Subsidiary Existing Articles or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, Borrower or the Guarantor or any Subsidiary Guarantors or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Guarantor or any Subsidiary.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of its subsidiaries is in violation of its articles of incorporation or by-laws Organizational Documents (as defined below) or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor Company or any Subsidiary of its subsidiaries is a party or by which it any of them may be bound, or to which any of the property or assets of the Company, the Guarantor Company or any Subsidiary of its subsidiaries is subject (collectively, the “"Agreements and Instruments”," which term, as used herein, includes, without limitation, the Company Documents and the Telecom Documents), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the offering, issuance and sale of the Securities Securities, the Holdings Transactions, Telecom Transactions, Preferred Stock Exchange, Reverse Split, Cashless Exercise and Warrant Purchase, and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company with its obligations under this Agreement have been duly authorized by all necessary action, corporate or other, and the Guarantor with their obligations hereunder and under the Indenture and the Securities does 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 Guarantor Company or any Subsidiary of its subsidiaries pursuant to, the any Agreements and Instruments (except except, solely in the case of Agreements or Instruments other than the Company Documents and the Telecom Documents, for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the articles of incorporation or by-laws Organizational Documents of the Company, the Guarantor or any Subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 Guarantor or any Subsidiary.its

Absence of Defaults and Conflicts. Neither The Company is not in violation of its Articles of Restatement, as amended (the Company“Charter”), or Bylaws, as amended (the Guarantor nor any Subsidiary “Bylaws”); none of the Subsidiaries is in violation of its articles charter, bylaws or other organizational documents and neither the Company nor any of incorporation or by-laws or its Subsidiaries is in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor 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 Guarantor Company or any Subsidiary is subject (collectively, the “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statutelaw or statute or any judgment, laworder, rule, rule or regulation of any court or judicial arbitrator or administrative decree, writ, judgment governmental or orderregulatory authority, except for such violations or defaults that would not not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect; . No event of default under that certain indenture dated as of April 23, 2012, between the Company and U.S. Bank National Association, as trustee, as supplemented by a supplemental indenture entered into by the Company and the trustee on April 6, 2015, or default with notice and/or lapse of time that would constitute an event of default in respect of the Company’s Senior Notes due April 15, 2025 has occurred and is continuing. The execution, delivery and performance of this Agreement, Agreement and the Indenture and the Securities and the consummation of the transactions contemplated herein and therein, and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor with their its obligations hereunder have been duly authorized by all necessary corporate action and under the Indenture and the Securities does 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 Guarantor Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect), ; nor will such action result in any violation of the provisions of the articles of incorporation Charter or by-laws Bylaws of the CompanyCompany or the charter, the Guarantor bylaws or other organizational document of 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 Guarantor Company or any Subsidiary or any of their assets, properties or operationsoperations (except for such violations that would not, singly or in the aggregate, reasonably be expected to, result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Guarantor Company or any Subsidiary.

Absence of Defaults and Conflicts. Neither None of the CompanyIssuers or any "significant subsidiary" of the Company (as such term is defined in Rule 1-02 of Regulation S-X (each a "SUBSIDIARY" and, collectively, the Guarantor nor any Subsidiary "SUBSIDIARIES") and each of which is listed on SCHEDULE C hereto) is in violation of its articles of incorporation or charter, by-laws or other organizational documents or is in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor Issuers or any Subsidiary of the Subsidiaries is a party or by which it any of them may be bound, or to which any of the property or assets of any of the Company, the Guarantor Issuers or any Subsidiary is subject (collectively, the “Agreements and Instruments”), "AGREEMENTS AND INSTRUMENTS") except for such defaults that would not result in have a Material Adverse Effect material adverse effect on the condition, financial or otherwise, or in violation the results of any applicable statuteoperations or business affairs of the Company and its Subsidiaries, lawtaken as a whole, rule, regulation whether or judicial or administrative decree, writ, judgment or order, except for such violations that would not result arising in the ordinary course of business (a Material Adverse Effect"MATERIAL ADVERSE EFFECT"); and the execution, delivery and performance of this Agreement, the Indenture and the Securities Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Trust Preferred Securities and the use of the proceeds from the sale of the Trust Preferred Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “"Use of Proceeds”") and compliance by each of the Company and the Guarantor Issuers with their its obligations hereunder have been duly authorized by all necessary corporate or other action and under the Indenture and the Securities does do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of any of the Company, the Guarantor Issuers or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults breaches, 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 articles of incorporation or charter, by-laws or other organizational documents of any of the Company, the Guarantor Issuers or any Subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over any of the Company, the Guarantor Issuers or any Subsidiary or any of their assets, properties or operations. As used herein, a “Repayment Event” "REPAYMENT EVENT" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by any of the Company, the Guarantor Issuers or any Subsidiary.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor nor any Subsidiary The Fund is not in violation of its articles agreement and declaration of incorporation trust or by-laws laws, each as amended from time to time, or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor or any Subsidiary it is a party or by which it may be bound, or to which any of the property or assets of the Company, the Guarantor or any Subsidiary Fund is subject (collectively, the “"Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, ") 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 Indenture Investment Advisory Agreement dated as of [ ], 2005 between the Fund and the Securities Investment Adviser (the "Advisory Agreement"), the Sub-Advisory Agreement dated as of [ ], 2005 among the Fund, the Investment Adviser and the Sub-Adviser (the "Sub-Advisory Agreement"), the Custodian Contract dated as of [ ], 2005 between the Fund and The Bank of New York (the "Custodian Agreement") and the Registrar, Transfer Agency and Service Agreement dated as of [ ], 2005 between the Fund and The Bank of New York (the "Transfer Agency Agreement") and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company and the Guarantor Fund with their its obligations hereunder have been duly authorized by all necessary trust action and under the Indenture and the Securities does 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 Guarantor or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation (not including for these purposes any such violations that will not result in a Material Adverse Effect) of the provisions of the articles agreement and declaration of incorporation trust or by-laws of the CompanyFund, the Guarantor or any Subsidiary each as amended from time to time, or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor or any Subsidiary Fund or any of their its assets, properties or operations, other than State securities or "blue sky" laws applicable in connection with the purchase and distribution of the Securities by the Underwriters pursuant to this Agreement. 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 Guarantor or any SubsidiaryFund.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of its Subsidiaries is (A) in violation of its articles of incorporation charter or by-laws or (B) in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor 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 Guarantor Company or any Subsidiary is subject (collectively, the “Agreements and Instruments”), ) except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance of this AgreementUnderwriting Agreement by the Company and its banking Subsidiary Merchants Bank of Indiana, an Indiana state chartered bank (the Indenture and the Securities “Bank”) and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor Bank with their obligations hereunder have been duly authorized by all necessary corporate action and under the Indenture and the Securities does 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 Guarantor Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the articles of incorporation charter or by-laws of the Company, the Guarantor Company or any Subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 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 Guarantor Company or any Subsidiary.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor nor any Subsidiary The Fund is not in violation of its articles of incorporation the Articles or by-laws laws, each as amended or supplemented to date, or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor or any Subsidiary Fund is a party or by which it may be bound, or to which any of the property or assets of the Company, the Guarantor or any Subsidiary Fund is subject (collectively, the “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, ) except for such violations or defaults (A) that do not involve Offering Agreements (as defined below) and (B) that would not not, individually or in the aggregate, result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture Investment Advisory Agreement dated as of June 27, 1994, as amended May 19, 1999, between the Fund and the Securities Adviser, the Mutual Fund Custody and Services Agreement dated as of September 10, 2001 between Fund and The Bank of New York Mellon Corporation and the Transfer Agency and Service Agreement, dated as of January 1, 2011 among the Fund, Computershare Trust Company, N.A. and Computershare Inc., referred to in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement” and the “Transfer Agency Agreement,” respectively and collectively the “Offering Agreements”) and the consummation of the transactions contemplated herein in the Offering Agreements and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described in the Registration Statement, the Time of Sale Information Preliminary Prospectus and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company Fund with its obligations thereunder have been duly authorized by all necessary corporate action and the Guarantor with their obligations hereunder and under the Indenture and the Securities does 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 Guarantor or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or breaches, defaults or liens, charges or encumbrances that would not not, individually or in the aggregate, result in a Material Adverse Effect), nor will such action result in (i) any violation of the provisions of the articles of incorporation Articles or by-laws of the Company, the Guarantor Fund or any Subsidiary or (ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor or any Subsidiary Fund or any of their its assets, properties or operations, except with respect to (ii) only for such violations that would not, individually or in the aggregate, result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Guarantor or any SubsidiaryFund.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of the Designated Subsidiaries is in violation of its articles of incorporation charter or by-laws or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor 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 Guarantor Company or any Subsidiary of its Designated Subsidiaries is subject (collectively, the “Agreements and Instruments”), ) except for such defaults that would not result in a Material Adverse Effect not, singly or in violation of any applicable statutethe aggregate, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture Transaction Documents and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Disclosure Package and the Securities Final Offering Memorandum and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information Disclosure Package and the Prospectus Final Offering Memorandum (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information Disclosure Package and the Prospectus Final Offering Memorandum under the caption “Use of Proceeds”” and the issuance of the shares of Common Stock issuable upon conversion of the Securities) and compliance by the Company and the Guarantor with their its obligations hereunder and under the Indenture and the Securities does 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 Guarantor Company or any Subsidiary of the Designated Subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not not, singly or in the aggregate, result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the articles of incorporation charter or by-laws of the Company, the Guarantor Company or any Subsidiary of the Designated Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 Guarantor Company or any Subsidiaryof the Designated Subsidiaries.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of its Significant Subsidiaries is in violation of its articles memorandum of incorporation or byassociation, bye-laws or other constitutional documents; neither the Company nor any of its subsidiaries is in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor 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 Guarantor Company or any Subsidiary subsidiary is subject (collectively, the “Agreements and Instruments”), ) except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”Securities) and compliance by the Company and the Guarantor with their its obligations hereunder have been duly authorized by all necessary corporate action and under the Indenture and the Securities does 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 Guarantor Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches breaches, defaults or defaults 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 articles memorandum of incorporation or byassociation, bye-laws or other constitutional documents of the Company, the Guarantor Company or any Significant Subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, court having jurisdiction over the Company, the Guarantor 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 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 Guarantor Company or any Subsidiary.subsidiary prior to the stated contractual maturity of such indebtedness. Back to Contents

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of its Subsidiaries is in violation of its articles of incorporation or charter, by-laws or other organizational documents or in default (or, with the giving of notice, would be in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, ) (“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 Guarantor 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 Guarantor Company or any Subsidiary is subject (collectively, the “Agreements and Instruments”), ) except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations Defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor with their its obligations hereunder and under the Indenture and the Securities does 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, not conflict with or constitute a breach of, or default 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 Guarantor Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches breaches, Defaults or defaults Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse EffectEffect or will not have a material adverse effect on the ability of the Company to perform its obligations under the Agreement, the Indenture or the Securities or consummate the transactions contemplated hereby and thereby), nor will such action result in any violation of the provisions of the articles of incorporation or charter, by-laws or other organizational documents of the Company, the Guarantor Company or any Subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree (collectively, “Law”) of the State of Delaware or the United States or any member state of the European Union having jurisdiction over the Company or any Subsidiary, or, to the knowledge of the Company, of any applicable Law of any other government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor 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 gives, or with the giving of notice would give, 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 Guarantor Company or any Subsidiary.

Absence of Defaults and Conflicts. Neither None of the Company, the Guarantor nor Company or any Subsidiary of its subsidiaries is (A) in violation of its articles of incorporation respective charter or by-laws or similar organizational documents; (B) in default, and no event has occurred that that, with notice or lapse of time or both both, would constitute such a default, in the due performance or observance of any obligation, agreementterm, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease agreement or other agreement or instrument to which the Company, the Guarantor Company or any Subsidiary of its subsidiaries is a party or by which it may be bound, the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company, the Guarantor Company or any Subsidiary of its subsidiaries is subject subject; or (collectively, the “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or C) in violation of any applicable statutelaw or statute or any judgment, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except rule or regulation of the Commission or any other federal, state or local or other governmental or regulatory agency, authority or instrumentality or court or arbitrator (“Other Agency”) having jurisdiction over the Company or any of its subsidiaries or any of their respective properties, except, in the case of clauses (B) and (C) above, for any such violations default or violation that would not not, individually or in the aggregate, result in a Material Adverse Effect; and the issuance and sale of the Securities (including the issuance of the Underlying Securities upon conversion thereof), the execution, delivery and performance by the Company and each of the Guarantors of this Agreement, the Indenture and the Securities Securities, the issuance and performance of the Guarantees by each of the Guarantors, and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information General Disclosure Package and the Prospectus Offering Memorandum (including the offering, issuance and sale of the Securities pursuant to this Agreement and the use of the proceeds to the Company from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus therein under the caption “Use of Proceedsproceeds”) and compliance by the Company and the Guarantor Guarantors with their respective obligations hereunder and under the Indenture and the Securities does do not and will not, whether with or without the giving of notice or passage of time or both, not (X) conflict with or constitute result in a breach or violation of any of the terms or provisions of, or constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Guarantor Company or any Subsidiary of its subsidiaries pursuant toto any indenture, note, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Agreements and Instruments Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action Y) result in any violation of the provisions of the articles of incorporation charter or by-laws or similar organizational documents of the Company, the Guarantor Company or any Subsidiary of its subsidiaries or (Z) result in the violation of any law or statute or any applicable law, statute, rule, regulation, judgment, order, writ rule or decree regulation of the Commission or any government, government instrumentality or court, domestic or foreign, Other Agency having jurisdiction over the Company, the Guarantor Company or any Subsidiary of its subsidiaries or any of their respective properties or assets, properties except, in the case of clauses (X) and (Y) above, for any such conflict, breach or operations. As used hereinviolation that would not, individually or in the aggregate result in a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Guarantor or any SubsidiaryMaterial Adverse Effect.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary of its subsidiaries is in violation of its articles of incorporation or by-laws Organizational Documents (as defined below) or in default, and no event has occurred that default (or with the giving of notice or lapse of time or both would constitute such a 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 Guarantor 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 Guarantor Company or any Subsidiary is subject subject, including, without limitation, the agreements listed on Exhibit B hereto (collectively, the “Agreements and Instruments”), ) except for such defaults that would not result in a Material Adverse Effect not, individually or in violation of any applicable statutethe aggregate, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the Deposit Agreement, the Indenture and the Securities and the consummation of the transactions contemplated herein or therein and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the Common Shares represented by the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, Statutory Prospectus included in the Time of Sale Information General Disclosure Package and the Prospectus under the caption heading “Use of Proceeds”) and compliance by the Company and the Guarantor with their its obligations hereunder have been duly authorized by all necessary corporate action and under the Indenture and the Securities does 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 Guarantor Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches 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 articles of incorporation or by-laws Organizational Documents of the Company, the Guarantor Company or any Subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor Company or any Subsidiary or any of their assets, properties or operations. As used herein, a “Organizational Documents” means, with respect to any person, the memorandum of association, articles of association, articles of incorporation, certificate of incorporation, bylaws and any charter, partnership agreements, joint venture agreements or other organizational documents of such entity and any amendments thereto. 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 Guarantor Company or any Subsidiary.

Absence of Defaults and Conflicts. Neither the Company, the Guarantor Company nor any Subsidiary is in violation of any provision of its articles of incorporation charter or by-laws or in default, and no event has occurred that with notice or lapse of time or both would constitute such a default, 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 Guarantor 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 Guarantor Company or any Subsidiary is subject subject, including, without limitation, the agreements described in paragraph (xiii) below (collectively, the “"Agreements and Instruments”), ") except for such defaults that would not result have been waived or suspended as described in a Material Adverse Effect the Prospectus or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations that would not reasonably be expected to, individually or in the aggregate, result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the Time of Sale Information and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Option Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company and the Guarantor with their its obligations hereunder and under the Indenture and the Securities does 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 Guarantor Company or any Subsidiary pursuant to, any of the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not reasonably be expected to result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the articles of incorporation charter or by-laws of the Company, the Guarantor Company or any Subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor Company or any Subsidiary or any of their assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which that gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any Subsidiary. Each of the Agreements and Instruments is in full force and effect and is valid and enforceable by and against the Company or any of the Subsidiaries, as the case may be, and, to the knowledge of the Company, the Guarantor other parties thereto, in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or any Subsidiarysimilar laws affecting the enforcement of creditors' rights generally and by general equitable principles.