Common use of Absence of Defaults and Conflicts Clause in Contracts

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary is subject (collectively, “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Final Prospectus and the Disclosure Package); (b) do not and will not result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, by-laws or other organizational documents of the Company or any Subsidiary; and (c) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary or any of their assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any Subsidiary.

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

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

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries The Fund is not in violation of its charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries Fund is a party or by which it or any of them its properties may be bound, or to which any of the property or assets of the Company or any Subsidiary Fund is subject (collectively, “"Agreements and Instruments”"), except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated herein in this Agreement and in the Registration Statement, the Disclosure Package and the Final 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 therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company Fund with its obligations hereunder under this Agreement have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Fund pursuant to, to the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, charter or the by-laws or other organizational documents of the Company Fund, or any Subsidiary; and (c) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Fund or any of their its assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 or any SubsidiaryFund.

Absence of Defaults and Conflicts. Neither None of the Company nor Simon Entities or, to the knowledge of the Operating Partnership, any of its Subsidiaries joint ventures or partnerships in which Simon Entities have an equity interest (“Property Partnerships”) is in violation of its charter, partnership agreement, limited liability company agreement, by-laws laws, certificate of limited partnership or partnership agreement or other organizational documents document, as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries each entity is a party or by which it or any of them may be bound, or to which any of the its property or assets of the Company or any Subsidiary is Property may be bound or subject (collectively, “Agreements and Instruments”), except for such violations (other than with respect to the charter, by-laws, partnership agreement, or other organizational document of the Company, the Operating Partnership or any significant subsidiary) or defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; and the Effect. The execution, delivery and performance of this Agreement Agreement, the Notes, the Indenture and any other agreement or instrument entered into or issued or to be entered into or issued by the Company or the Operating Partnership in connection with the transactions contemplated hereby or thereby or in the Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final 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 therein under the caption “Use of Proceeds”) and compliance by the Company Operating Partnership with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action action, and (a) 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 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, defaults or defaults, Repayment Events or liensLiens, charges or encumbrances that that, singly or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect, the Final Prospectus and the Disclosure Package); (b) do not and will not nor shall such action result in any violation of the provisions of the charter, OP Partnership Agreement or certificate of limited partnership agreement, limited liability company agreement, by-laws of the Operating Partnership or other the organizational documents of the Company any other Simon Entity or any Subsidiary; and (c) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company Operating Partnership, any other Simon Entity or any Subsidiary Property Partnership or any of their assets, properties or operations (operations, except in the case of this clause (c) for such violations (other than with respect to the charter, by-laws, partnership agreement, or other organizational document of the Company, the Operating Partnership or any significant subsidiary) that would not reasonably be expected to result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a material portion of such indebtedness by any Simon Entity or, to the Company or knowledge of the Operating Partnership, any SubsidiaryProperty Partnership.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is (A) in violation of its charterarticles of incorporation or bylaws, partnership agreement, limited liability company agreement, by-laws each as amended or other organizational documents or (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary of its subsidiaries is subject (collectively, “Agreements and Instruments”), except for any such defaults with respect to this clause (B) that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement Agreement, the Indenture and the Securities, the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) ), and compliance by the Company with its obligations hereunder and under the Indenture and the Securities have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or 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 or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect, the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of (I) the charterarticles of incorporation or bylaws, partnership agreementeach as amended, limited liability company agreement, by-laws or other organizational documents of the Company or any Subsidiary; and of its subsidiaries or (cII) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary of its subsidiaries or any of their assets, properties or operations (operations, except in the case of for any such violations with respect to this clause (cII) for such violations that as would not 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 or any Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. Neither the Company nor any of its the Subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, by-laws or other organizational documents or documents. Further, neither the Company nor any of the Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its 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 or any Subsidiary of the Subsidiaries is subject (collectively, “Agreements and Instruments”), ) except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement, the Deposit Agreement, the Warrant Agreement, if applicable, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement, the General Disclosure Package and the Final Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and (a) thereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary of the Subsidiaries pursuant to, the Agreements and Instruments (Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect, the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, by-laws or other organizational documents of the Company or any Subsidiary; and (c) do not and will not result in any violation 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 or any Subsidiary of the Subsidiaries or any of their assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 or any Subsidiaryof the Subsidiaries.

Absence of Defaults and Conflicts. Neither None of the Company nor any of its Subsidiaries BIP Entities is in violation of its charter, limited partnership agreement, limited liability company agreementarticles, by-charter or by laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease lease, license or other agreement or instrument to which the Company or any of its Subsidiaries the BIP Entities is a party or by which it or any of them may be bound, or to which any of the BIP Entities or the property or assets of any of the Company or any Subsidiary BIP Entities is subject (collectively, “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; and the Effect. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein therein and in the Registration StatementDisclosure Package, the Disclosure Package U.S. Prospectus and the Final Supplemented Canadian Prospectus (including the issuance authorization, issuance, sale and sale delivery of the Securities Units and Additional Units and the use of the proceeds from the sale of the Securities Units and the Additional Units as described therein in the Disclosure Package, the U.S. Prospectus and the Supplemented Canadian Prospectus under the caption “Use of Proceeds”) and compliance by the Company BIP with its obligations hereunder have has been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of any of the Company or any Subsidiary BIP Entities pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of or conflict with the provisions of the charter, limited partnership agreement, limited liability company agreement, by-charter or by laws or other organizational documents of any of the Company BIP Entities, the resolutions of the general partner, unitholders, shareholders, directors or any Subsidiary; and (c) do not and will not result in committee of directors of any violation of the BIP Entities 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 or any Subsidiary BIP Entities or any of their assets, properties or operations (except in the case of this clause (c) 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 or any SubsidiaryBIP Entities.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary subsidiary is subject (collectively, “Agreements and Instruments”), ) except for such defaults that would not reasonably be expected to result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement Agreement, the Indenture, the Securities and the Pledged Bonds and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in any preliminary prospectus and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture, the Securities and the Pledged Bonds have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in (x) any violation of the provisions of the charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents of the Company or any Subsidiary; and subsidiary or (cy) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary subsidiary or any of their assets, properties or operations (except for such violations in the case of this clause (cy) for such violations that would not reasonably be expected to result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any Subsidiarysubsidiary.

Absence of Defaults and Conflicts. Neither the Company Company, the Operating Partnership nor any of its Subsidiaries their respective subsidiaries is (i) in violation of its charterOrganizational Documents (as defined below) or (ii) in default, partnership agreementand no event has occurred that, limited liability company agreementwith notice or lapse of time or both, by-laws or other organizational documents or in default would constitute such a default, in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary is subject Document (collectively, “Agreements and Instruments”as defined below), except except, in the case of clause (ii) above, for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; and the Effect. The execution, delivery and performance of this Agreement Agreement, the issuance of Securities and the consummation of the other transactions contemplated herein and therein and in the Registration Statement, the Disclosure Package and the Final Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by each of the Company and the Operating Partnership with its obligations hereunder have been duly authorized by all necessary corporate action and (a) under this Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) underunder any Company Documents, or result in the creation or imposition of any lien, charge or encumbrance Lien upon any property or assets of the Company Company, the Operating Partnership or any Subsidiary pursuant toof their respective subsidiaries, the Agreements and Instruments (except for nor will such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Final Prospectus and the Disclosure Package); (b) do not and will not action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, by-laws or other organizational documents Organizational Documents of the Company Company, the Operating Partnership or any Subsidiary; and (c) do not and will not result in any violation 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 Company or any Subsidiary of its subsidiaries or any of their respective assets, properties or operations operations. The term “Company Documents” as used herein means any contracts, indentures, guarantees, mortgages, deeds of trust, loan or credit agreements, letter of credit facilities, security agreements, bonds, notes, debentures, evidences of indebtedness, leases or other instruments or agreements to which the Company, the Operating Partnership or any of their respective subsidiaries is a party or by which the Company, the Operating Partnership or any of their respective subsidiaries is bound or to which any of the property or assets of the Company, the Operating Partnership or any of their respective subsidiaries is subject. The term “Organizational Documents” as used herein means (except a) in the case of this clause a corporation, its charter and bylaws; (b) in the case of a limited or general partnership, its partnership certificate, certificate of formation or similar organizational document and its partnership agreement; (c) for such violations that would not result in the case of a Material Adverse Effect). As used hereinlimited liability company, its articles of organization, certificate of formation or similar organizational documents and its operating agreement, limited liability company agreement, membership agreement or other similar agreement; (d) in the case of a “Repayment Event” means any event trust, its certificate of trust, certificate of formation or condition which gives similar organizational document and its trust agreement or other similar agreement; and (e) in the holder case of any noteother entity, 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 organizational and governing documents of such indebtedness by the Company or any Subsidiaryentity.

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

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries The Fund is not in --------------------------------- violation of its charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries Fund is a party or by which it or any of them its properties may be bound, or to which any of the property or assets of the Company or any Subsidiary Fund is subject (collectively, “"Agreements and Instruments”"), except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated herein in this Agreement and in the Registration Statement, the Disclosure Package and the Final 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 therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company Fund with its obligations hereunder under this Agreement have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Fund pursuant to, to the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, charter or the by-laws or other organizational documents of the Company Fund, or any Subsidiary; and (c) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Fund or any of their its assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 or any SubsidiaryFund.

Absence of Defaults and Conflicts. Neither the Company Company, the Parent Guarantor nor any of its Subsidiaries their subsidiaries is in violation of its charter, partnership operating agreement, limited liability company agreement, charter or by-laws or other organizational documents laws, as applicable, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company Company, the Parent Guarantor or any of its Subsidiaries 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 Company, the Parent Guarantor or any Subsidiary subsidiary is subject (collectively, “Agreements and Instruments”), ) except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement Agreement, the Indenture and the Securities and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Parent Guarantor with its their respective obligations hereunder and under the Indenture and the Securities have been duly authorized by all necessary corporate action or limited liability company action, as applicable, and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company Company, the Parent Guarantor or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of (i) the charter, partnership operating agreement, limited liability company agreement, charter or by-laws or other organizational documents laws, as applicable, of the Company Company, the Parent Guarantor or any Subsidiary; and subsidiary or (cii) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company Company, the Parent Guarantor or any Subsidiary subsidiary or any of their assets, properties or operations operations, except, with respect to section (except in the case of this clause (cii) 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 Company, the Parent Guarantor or any Subsidiarysubsidiary.

Absence of Defaults and Conflicts. Neither Except as disclosed in the Registration Statement, (A) neither the Company nor any of its Significant Subsidiaries is in violation of its charterArticles of Incorporation, partnership agreementRegulations of the Board of Directors, limited liability company agreementRegulations of the Executive Management Board, by-laws Share Handling Regulations or other similar organizational documents documents, (B) neither the Company nor any of its subsidiaries is in violation of any law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, Japanese or foreign, having jurisdiction over the Company or any subsidiary or any of their respective assets, properties or operations, or (C) neither the Company nor any of its subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary subsidiary is subject (collectively, “Agreements and Instruments”)) except, except in the case of clause (B) or (C) above, for such violations or defaults that would not not, singly or in the aggregate, result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement Agreement, the Indenture and the Securities and the consummation of the transactions contemplated herein and therein and in the Registration Statement, the Disclosure Package and the Final Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder under this Agreement, the Indenture and the Securities have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charterArticles of Incorporation, partnership agreementRegulations of the Board of Directors, limited liability company agreementRegulations of the Executive Management Board, by-laws Share Handling Regulations or other similar organizational documents of the Company or any Subsidiary; and (c) do not and will not result in any violation of subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic Japanese or foreign, having jurisdiction over the Company or any Subsidiary subsidiary or any of their respective assets, properties or operations (except in the case or of this clause (c) for such violations that would not result in a Material Adverse Effect)any Agreements and Instruments. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any Subsidiarysubsidiary.

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

Absence of Defaults and Conflicts. Neither Except as disclosed in the Registration Statement, (i) neither the Company nor any of its Significant Subsidiaries is in violation of its charterArticles of Incorporation, partnership agreementRegulations of the Board of Directors, limited liability company agreementRegulations of the Executive Management Board, by-laws Share Handling Regulations or other similar organizational documents documents, (ii) neither the Company nor any of its subsidiaries is in violation of any law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, Japanese or foreign, having jurisdiction over the Company or any subsidiary or any of their respective assets, properties or operations, or (iii) neither the Company nor any of its subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary subsidiary is subject (collectively, “Agreements and Instruments”)) except, except in the case of clause (ii) or (iii) above, for such violations or defaults that would not not, singly or in the aggregate, result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement Agreement, the Indenture and the Securities and the consummation of the transactions contemplated herein and therein and in the Registration Statement, the Disclosure Package and the Final Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder under this Agreement, the Indenture and the Securities have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charterArticles of Incorporation, partnership agreementRegulations of the Board of Directors, limited liability company agreementRegulations of the Executive Management Board, by-laws Share Handling Regulations or other similar organizational documents of the Company or any Subsidiary; and (c) do not and will not result in any violation of subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic Japanese or foreign, having jurisdiction over the Company or any Subsidiary subsidiary or any of their respective assets, properties or operations (except in the case or of this clause (c) for such violations that would not result in a Material Adverse Effect)any Agreements and Instruments. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any Subsidiarysubsidiary.

Absence of Defaults and Conflicts. Neither the Company nor any The Fund is not in violation --------------------------------- of its Subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries Fund is a party or by which it or any of them its properties may be bound, or to which any of the property or assets of the Company or any Subsidiary Fund is subject (collectively, “"Agreements and Instruments”"), except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated herein in this Agreement and in the Registration Statement, the Disclosure Package and the Final 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 therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company Fund with its obligations hereunder under this Agreement have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Fund pursuant to, to the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, charter or the by-laws or other organizational documents of the Company Fund, or any Subsidiary; and (c) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Fund or any of their its assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 or any SubsidiaryFund.

Absence of Defaults and Conflicts. Neither None of the Company nor any of its Subsidiaries Partnership Entities is in violation of its charter, limited partnership agreement, limited liability company agreementarticles, by-charter or by laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease lease, license or other agreement or instrument to which the Company or any of its Subsidiaries the Partnership Entities is a party or by which it or any of them may be bound, or to which any of the Partnership Entities or the property or assets of any of the Company or any Subsidiary Partnership Entities is subject (collectively, “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; and the Effect. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein therein and in the Registration StatementDisclosure Package, the Disclosure Package U.S. Prospectus and the Final Supplemented Canadian Prospectus (including the issuance authorization, issuance, sale and sale delivery of the Securities Units and Additional Units and the use of the proceeds from the sale of the Securities Units and the Additional Units as described therein in the Disclosure Package, the U.S. Prospectus and the Supplemented Canadian Prospectus under the caption “Use of Proceeds”) and compliance by the Company Partnership with its obligations hereunder have has been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of any of the Company or any Subsidiary Partnership Entities pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of or conflict with the provisions of the charter, limited partnership agreement, limited liability company agreement, by-charter or by laws or other organizational documents of any of the Company Partnership Entities, the resolutions of the general partner, unitholders, shareholders, directors or any Subsidiary; and (c) do not and will not result in committee of directors of any violation of the Partnership Entities 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 or any Subsidiary Partnership Entities or any of their assets, properties or operations (except in the case of this clause (c) 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 or any SubsidiaryPartnership Entities.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of the provisions of its charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party or by which it or any of them may be bound, bound or to which any of the property or assets of the Company or any Subsidiary of its subsidiaries is subject (collectively, “"Agreements and Instruments”"), except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement 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 by the Prospectus, the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final Prospectus (including the issuance and sale of the Securities Notes and the use of the proceeds from the sale of the Securities therefrom as described therein in the Prospectus under the caption “"Use of Proceeds”") and the compliance by the Company with its obligations hereunder and under the Indenture, the Notes and such other agreements or instruments have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or the passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents of the Company or any Subsidiary; and (c) do not and will not result in any violation of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary of its subsidiaries or any of their assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 or any Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. Neither None of the Company nor any of its Subsidiaries Partnership Entities is in violation of its charter, limited partnership agreement, limited liability company agreementarticles, by-charter or by laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease lease, license or other agreement or instrument to which the Company or any of its Subsidiaries the Partnership Entities is a party or by which it or any of them may be bound, or to which any of the Partnership Entities or the property or assets of any of the Company or any Subsidiary Partnership Entities is subject (collectively, “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; and the Effect. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein therein and in the Registration StatementDisclosure Package, the Disclosure Package U.S. Prospectus, the Canadian Preliminary Supplement and the Final Supplemented Canadian Prospectus (including the sale and delivery of the Exchangeable Shares and the Additional Exchangeable Shares, if any, and the authorization, issuance and sale delivery of any Units upon the Securities and the use exchange, redemption or acquisition of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”any Exchangeable Shares or Additional Exchangeable Shares, if any) and compliance by each of BEPC and the Company Partnership with its obligations hereunder have has been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of any of the Company or any Subsidiary Partnership Entities pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of or conflict with the provisions of the charter, limited partnership agreement, limited liability company agreement, by-charter or by laws or other organizational documents of any of the Company Partnership Entities, the resolutions of the general partner, unitholders, shareholders, directors or any Subsidiary; and (c) do not and will not result in committee of directors of any violation of the Partnership Entities 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 or any Subsidiary Partnership Entities or any of their assets, properties or operations (except in the case of this clause (c) 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 or any SubsidiaryPartnership Entities.

Absence of Defaults and Conflicts. Neither the --------------------------------- Company nor any of its Subsidiaries subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, by-charter or by- laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary of its subsidiaries is subject (collectively, “"Agreements and Instruments”), ") except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement Agreement, the Registration Rights Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Offering Memorandum and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final 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 therein in the Offering Memorandum under the caption “"Use of Proceeds”") and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or 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 or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect, the Final Prospectus and the Disclosure Package); (b) do not and nor will not result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, by-laws or other organizational documents of the Company or any Subsidiary; and (c) do not and will not such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary of its subsidiaries or any of their assetsassets or properties, properties or operations (except in the case of this clause (c) for such violations that which violation would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the charter or by-laws of the Company or any of its subsidiaries. No event of default exists under any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument constituting Senior Indebtedness (as defined in the Indenture). As used herein, a “"Repayment Event” " means any 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 or any Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries is consolidated subsidiaries are (A) in violation of its charterrespective articles of incorporation or bylaws, partnership agreementeach as amended, limited liability company agreement, by-laws or other organizational documents or (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries 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 or any Subsidiary its consolidated subsidiaries is subject (collectively, “Agreements and Instruments”), except for any such defaults with respect to this clause (B) that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement Agreement, the Indenture and the Securities, the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) ), and compliance by the Company with its obligations hereunder and under the Indenture and the Securities have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or 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 or any Subsidiary its consolidated subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect, the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of (I) the charterarticles of incorporation or bylaws, partnership agreementeach as amended, limited liability company agreement, by-laws or other organizational documents of the Company or any Subsidiary; and its consolidated subsidiaries, or (cII) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary its consolidated subsidiaries or any of their assets, properties or operations (operations, except in the case of for any such violations with respect to this clause (cII) for such violations that as would not 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 or any Subsidiaryits consolidated subsidiaries.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries The Fund is not in violation of its charter, partnership agreement, limited liability company agreement, declaration of trust or by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries Fund is a party or by which it or any of them its properties may be bound, or to which any of the property or assets of the Company or any Subsidiary Fund is subject (collectively, “"Agreements and Instruments”"), except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated herein in this Agreement and in the Registration Statement, the Disclosure Package and the Final 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 therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company Fund with its obligations hereunder under this Agreement have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Fund pursuant to, to the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, declaration of trust or the by-laws or other organizational documents of the Company Fund, or any Subsidiary; and (c) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Fund or any of their its assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 or any SubsidiaryFund.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries consolidated subsidiaries is (A) in violation of its charterarticles of incorporation or bylaws, partnership agreement, limited liability company agreement, by-laws each as amended or other organizational documents or (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries 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 or any Subsidiary of its consolidated subsidiaries is subject (collectively, “Agreements and Instruments”), except for any such defaults with respect to this clause (B) that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement Agreement, the Indenture and the Securities, the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) ), and compliance by the Company with its obligations hereunder and under the Indenture and the Securities have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or 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 or any Subsidiary of its consolidated subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect, the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of (I) the charterarticles of incorporation or bylaws, partnership agreementeach as amended, limited liability company agreement, by-laws or other organizational documents of the Company or any Subsidiary; and of its consolidated subsidiaries or (cII) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary of its consolidated subsidiaries or any of their assets, properties or operations (operations, except in the case of for any such violations with respect to this clause (cII) for such violations that as would not 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 or any Subsidiaryof its consolidated subsidiaries.

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

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

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries the subsidiaries is in violation of its charterdeclaration of trust (“Original Declaration of Trust”) or bylaws (“Original Company Bylaws”), partnership agreementin the case of the Company, or certificate of formation or limited liability company agreementagreement (or like organizational documents) (each a “Subsidiary Governing Document”), by-laws or other organizational documents in the case of any of the subsidiaries, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries such 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 or any Subsidiary of its Subsidiaries is subject (collectively, “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate trust action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary of the subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charterOriginal Declaration of Trust, partnership agreementthe Original Company Bylaws, limited liability company agreement, by-laws or other organizational documents the amended and restated declaration of trust of the Company, as effective at the 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 Subsidiary; and (c) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary of the subsidiaries or any of their assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 or any Subsidiaryof the subsidiaries.

Absence of Defaults and Conflicts. Neither the The Company nor any of its Subsidiaries is not in violation of its charter, partnership agreement, limited liability company agreement, Articles of Incorporation or by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property assets, properties or assets operations of the Company or any Subsidiary is subject (collectively, “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; and the Change. The execution, delivery and performance of this Agreement Agreement, each applicable Terms Agreement, the Indenture, the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Registration Statement, the General Disclosure Package and the Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Final Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”therein) and compliance by the Company with its obligations hereunder and thereunder have been duly authorized by all necessary corporate Company action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Company or any Subsidiary pursuant to, the any Agreements and Instruments (except for Instruments, nor will such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Final Prospectus and the Disclosure Package); (b) do not and will not action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, organizational documents or by-laws or other organizational documents of the Company or any Subsidiary; and (c) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary or any of their its assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 or any SubsidiaryCompany.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is (A) in violation of its charterarticles of incorporation or bylaws, partnership agreementeach as amended, limited liability company agreement, by-laws or other organizational documents or (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary of its subsidiaries is subject (collectively, “Agreements and Instruments”), except for any such defaults with respect to this clause (B) that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement Agreement, the Indenture and the Securities, the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) ), and compliance by the Company with its obligations hereunder and under the Indenture and the Securities have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or 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 or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect, the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of (I) the charterarticles of incorporation or bylaws, partnership agreementeach as amended, limited liability company agreement, by-laws or other organizational documents of the Company or any Subsidiary; and of its subsidiaries, or (cII) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary of its subsidiaries or any of their assets, properties or operations (operations, except in the case of for any such violations with respect to this clause (cII) for such violations that as would not 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 or any Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is (A) in violation of its charterrespective articles of incorporation or bylaws or similar constitutive documents, partnership agreementeach as amended, limited liability company agreement, by-laws or other organizational documents or (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary of its subsidiaries is subject (collectively, “Agreements and Instruments”), except for any such defaults with respect to this clause (B) that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement Agreement, the Indenture and the Securities, the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) ), and compliance by the Company with its obligations hereunder and under the Indenture and the Securities have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or 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 or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect, the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of (I) the charterarticles of incorporation or bylaws, partnership agreementeach as amended, limited liability company agreement, by-laws or other organizational documents of the Company or any Subsidiary; and of its subsidiaries, or (cII) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary of its subsidiaries or any of their assets, properties or operations (operations, except in the case of for any such violations with respect to this clause (cII) for such violations that as would not 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 or any Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries The Fund is not in violation of its charter, partnership agreement, limited liability company agreement, declaration of trust or by-laws or other organizational documents laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary Fund is subject (collectively, “"Agreements and Instruments”), ") except for such violations or defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement, the Investment Management Agreement, the Administration Agreement, the Custody Agreement, the Stock Transfer Agency Agreement and the Auction Agency Agreement referred to in the Registration Statement (as used herein, the "Management Agreement," the "Administration Agreement," the "Custody Agreement," and the "Stock Transfer Agency Agreement" and the "Auction Agency Agreement" respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final Prospectus Statement (including the issuance and sale of the Securities AMPS and the use of the proceeds from the sale of the Securities AMPS as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance performance by the Company with Fund of its obligations hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with violate or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflictsviolations, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, declaration of trust or by-laws or other organizational documents of the Company Fund or any Subsidiary; and (c) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Fund or any of their its assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect). As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any SubsidiaryFund.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries The Fund is not in violation of its charter, partnership agreement, limited liability company agreement, agreement and declaration of trust or by-laws or other organizational documents laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary Fund is subject (collectively, “Agreements and Instruments”), ) except for such violations or defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement, the Investment Management Agreement, the Portfolio Management Agreement, the Custodian Agreement and the Transfer Agency Services Agreement referred to in the Registration Statement (as used herein, the “Investment Management Agreement,” the “Portfolio Management Agreement,” the “Custodian Agreement” and the “Transfer Agency Services Agreement,” respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company Fund with its obligations hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, agreement and declaration of trust or by-laws or other organizational documents of the Company Fund or any Subsidiary; and (c) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Fund or any of their its assets, properties or operations (except operations, other than State securities or “blue sky” laws applicable in connection with the case purchase and distribution of the Securities by the Underwriters pursuant to this clause (c) for such violations that would not result in a Material Adverse Effect)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 behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any SubsidiaryFund.

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

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary of its subsidiaries is subject (collectively, “"Agreements and Instruments”), ") except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect, the Disclosure Package and the Final Prospectus; and the execution, delivery and performance of this Agreement, the Indenture, the Registration Rights Agreement and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Offering Memorandum and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final 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 therein in the Offering Memorandum under the caption “"Use of Proceeds”") and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or 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 or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect, the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents of the Company or any Subsidiary; and (c) do not and will not result in any violation of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary of its subsidiaries or any of their assets, properties assets or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)properties. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or debenture, other evidence of indebtedness or preferred stock (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 or preferred stock by the Company or any Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries The Trust is not in violation of its charter, partnership agreement, limited liability company agreement, declaration of trust or by-laws or other organizational documents laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary Trust is subject (collectively, “"Agreements and Instruments”), ") except for such violations or defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement, the Management Agreement, the Sub-Advisory Agreement, the Custodian Agreement and the Transfer Agent and Service Agreement referred to in the Registration Statement (as used herein, the "Management Agreement," the "Sub-Advisory Agreement", the "Custodian Agreement" and the "Transfer Agency Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company Trust with its obligations hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Trust pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, declaration of trust or by-laws or other organizational documents of the Company Trust or any Subsidiary; and (c) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Trust or any of their its assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 or any SubsidiaryTrust.

Absence of Defaults and Conflicts. Neither Upon completion of the Company nor Formation Transactions, none of the Company, the Operating Partnership or any of its Subsidiaries is will be in violation of its declaration of trust, charter, by-laws, partnership agreement, certificate of limited liability company agreement, by-laws partnership or other organizational documents governing document, as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company Company, the Operating Partnership or any of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the Initial Properties or any other property or assets of the Company Company, the Operating Partnership or any Subsidiary is subject (collectively, “the "Agreements and Instruments”), ") except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement and the 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 Disclosure Package and the Final Prospectus Statement (including the issuance and sale of the Securities Securities, the consummation of the Formation Transactions, and the use of the proceeds from the sale of the Securities as described therein in the Prospectuses under the caption “"Use of Proceeds”") and compliance by each of the Company and the Operating Partnership with its obligations hereunder under this Agreement and the U.S. Purchase Agreement have been duly authorized by all necessary corporate action or partnership action, as the case may be, and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the Initial Properties or any other property or assets of the Company Company, the Operating Partnership or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the declaration of trust, charter, by-laws, partnership agreement, certificate of limited liability company agreement, by-laws partnership or other organizational documents governing document, as the case may be, of the Company Company, the Operating Partnership or any Subsidiary; and (c) do not and will not result in any violation of Subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company Company, the Operating Partnership or any Subsidiary subsidiary or any of their assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 Company, the Operating Partnership or any Subsidiary.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary of its subsidiaries is subject (collectively, “"Agreements and Instruments”"), except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Offering Memorandum and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final 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 therein in the Offering Memorandum under the caption “"Use of Proceeds”") and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or 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 or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (Instruments, except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect, the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents of the Company or any Subsidiary; and (c) do not and will not result in any violation of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary of its subsidiaries or any of their assets, properties assets or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)properties. As used herein, a “"Repayment Event” " means any event or condition condi- tion 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 or any Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries the Founding Companies or their respective subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, any Founding Company or any of its Subsidiaries their respective subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary subsidiary is subject (collectively, “"Agreements and Instruments”), ") except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; and the Effect. The execution, delivery and performance of this Agreement Agreement, the U.S. Purchase Agreement, and the Acquisition Agreements and the consummation of the transactions contemplated herein in this Agreement, the U.S. Purchase Agreement and in the Registration Statement, the Disclosure Package and the Final Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectuses under the caption “"Use of Proceeds”") and compliance by the Company with its obligations hereunder under this Agreement, the U.S. Purchase Agreement and the Acquisition Agreements have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, any Founding Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents of the Company, any Founding Company or any Subsidiary; and (c) do not and will not result in any violation of subsidiary thereof 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, any Founding Company or any Subsidiary subsidiary thereof or any of their assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 or any Subsidiary.,

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries nor, to the actual knowledge of the Company, Triumph or any of its subsidiaries, is in violation of its charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries, or, to the actual knowledge of the Company, Triumph or any of its subsidiaries, is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary subsidiary, or Triumph or any of its subsidiaries, is subject (collectively, “Agreements and Instruments”), ) except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration StatementStatement (including the entering into of the senior secured credit facilities in the aggregate amount of $625 million (the “Senior Credit Facilities”), the Disclosure Package consummation of the Merger and the Final Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary subsidiary, or, to the actual knowledge of the Company, Triumph or any of its subsidiaries, pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents of the Company or any Subsidiary; and (c) do not and will not result in subsidiary, or, to the actual knowledge of the Company, Triumph or any violation of its subsidiaries, or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary subsidiary or, to the actual knowledge of the Company, Triumph or any of its subsidiaries, or any of their assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 or any Subsidiarysubsidiary.

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

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary of its subsidiaries is subject (collectively, “Agreements and Instruments”), ) except for such defaults that would not not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect, the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents of the Company or any Subsidiary; and (c) do of its subsidiaries or, except such violations that, individually or in the aggregate, would not and will not reasonably be expected to result in any violation of a Material Adverse Effect, any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary of its subsidiaries or any of their assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 or any Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries The Depositor is not in violation of its charter, partnership agreement, limited liability company agreement, by-laws or other organizational documents agreement or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument Agreement and Instrument with respect to which the Company or any of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary is subject (collectively, “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final Prospectusit; and the execution, delivery and performance by the Depositor of the Depositor Agreements, this Agreement and the Securities, the consummation of the transactions contemplated herein and or therein, in the Registration Statement, Preliminary Prospectus or in the Disclosure Package and the Final Prospectus (including the issuance and sale of the Securities Notes to the Underwriter pursuant to the terms of this Agreement and the use of the proceeds from the sale of the Securities therefrom as described therein under the caption heading “Use of Proceeds”” in the Prospectus) and compliance by the Company it with its obligations hereunder and thereunder have been duly and validly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge mortgage, pledge, charge, encumbrance, adverse claim or encumbrance other security interest (collectively, “Liens”) upon any of its property or assets of pursuant to the Company Depositor Agreements or any Subsidiary pursuant to, the Agreements and Instruments (except for Liens permitted by the Basic Documents, nor will such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Final Prospectus and the Disclosure Package); (b) do not and will not action result in any violation of the provisions of the charter, partnership agreement, its limited liability company agreement, by-laws agreement or other organizational documents of the Company or any Subsidiary; and (c) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Depositor or any of their its assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)operations. As used herein, a “Repayment Event” means means, with respect to any Bank Entity, any 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 such Bank Entity and “Agreements and Instruments” means, with respect to any Bank Entity, any obligation, agreement, covenant or condition contained in any Subsidiarycontract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which such Bank Entity is a party or by which it may be bound, or to which any of its properties, operations or assets is subject.

Absence of Defaults and Conflicts. Neither the Company nor any The Fund is not in violation --------------------------------- of its Subsidiaries is in violation declaration of its charter, partnership agreement, limited liability company agreement, trust or by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries Fund is a party or by which it or any of them its properties may be bound, or to which any of the property or assets of the Company or any Subsidiary Fund is subject (collectively, “"Agreements and Instruments”"), except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations" respectively) and the consummation of the transactions contemplated herein in this Agreement and in the Registration Statement, the Disclosure Package and the Final 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 therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company Fund with its obligations hereunder under this Agreement have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Fund pursuant to, to the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, declaration of trust or the by-laws or other organizational documents of the Company Fund, or any Subsidiary; and (c) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Fund or any of their its assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 or any SubsidiaryFund.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, by-laws or other organizational documents Organizational Documents (as defined below) or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary is subject Document (collectively, “Agreements and Instruments”as defined below), except for such defaults that would not not, individually or in the aggregate, result in a Material Adverse Effect or that are otherwise specifically disclosed in Effect. The execution and delivery of, and the Registration Statementperformance by the Company of its obligations under, this New Notes Purchase Agreement, the Disclosure Package New Notes Indenture and the Final Prospectus; and the executionNew Notes, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statementtherein, the Disclosure Package and the Final Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default default, Termination Event or Repayment Event (each as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance Lien upon any property or assets of the Company or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (any Company Documents, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances Liens that would not neither, individually or in the aggregate, result in a Material Adverse Effect nor materially and adversely affect the performance by the Company of its obligations under this New Notes Purchase Agreement or that are otherwise specifically disclosed in the Registration StatementNew Notes Indenture, the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of (i) the provisions of the charter, partnership agreement, limited liability company agreement, by-laws or other organizational documents Organizational Documents of the Company or any Subsidiary; and of its subsidiaries or (cii) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary of its subsidiaries or any of their respective assets, properties or operations (except operations, except, in the case of this clause (c) ii), for such violations that would not neither, individually or in the aggregate, result in a Material Adverse Effect)Effect nor materially and adversely affect the performance by the Company of its obligations under this New Notes Purchase Agreement. As used hereinFor the purposes hereof, a the following capitalized terms shall have the following meanings: (A) “Repayment EventCompany Documents” means any event all other contracts, indentures, mortgages, deeds of trust, loan or condition which gives the holder credit agreements, bonds, notes, debentures, evidences of any noteindebtedness, debenture swap agreements, hedging agreements, leases or other evidence of indebtedness (instruments or any person acting on such holder’s behalf) the right agreements to require the repurchase, redemption or repayment of all or a portion of such indebtedness by which the Company or any Subsidiary.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, including the Existing Indentures and any other instruments, agreements and documents filed or incorporated by reference as exhibits to the Annual Report or any subsequent report filed by the Company under the Exchange Act pursuant to Rule 601(b)(10) of Regulation S-K of the Commission; provided that if

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents partnership agreement, as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease lease, license or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party or by which it or any of them its subsidiaries may be bound, or to which any of the property or assets of the Company or any Subsidiary of its subsidiaries is subject (collectively, “Agreements and Instruments”), ) except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement Agreement, the Indenture and the Securities and the consummation of the transactions contemplated herein herein, therein and in the Registration Statement, the General Disclosure Package and the Final Prospectus Prospectuses (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the General Disclosure Package and the Final Prospectuses under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breachesbreaches or defaults, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of or conflict with the provisions of the charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents of the Company or any Subsidiary; and (c) do not and will not result in any violation 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 or any Subsidiary of its subsidiaries or any of their assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 or any Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. Neither None of the Company nor Company, the Operating Partnership, any of its Subsidiaries subsidiary or any Property Partnership is in violation of its charter, partnership agreement, limited liability company agreement, by-laws laws, certificate of limited partnership or partnership agreement or other organizational documents document, as the case may be, or in 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 or any of its Subsidiaries 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 or any Subsidiary is are subject (collectively, “"Agreements and Instruments”"), except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; and the Effect. The execution, delivery and performance of this Agreement Agreement, the Purchase Agreement, and any other agreement or instrument entered into or issued or to be entered into or issued by the Company or the Operating Partnership in connection with the transactions contemplated hereby or thereby or in the Registration Statement and the Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package Statement and the Final Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein under the caption “"Use of Proceeds”") and compliance by the Company and the Operating Partnership with its their obligations hereunder and thereunder have been duly authorized by all necessary corporate action or partnership action, as the case may be, and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Company Company, the Operating Partnership, any subsidiary or any Subsidiary Property Partnership pursuant to, the any Agreements and Instruments (Instruments, except for such conflicts, breaches, defaults or Repayment Events defaults, events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect, the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, by-laws of the Company or other the organizational documents of the Company Operating Partnership, any subsidiary or any Subsidiary; and (c) do not and will not result in any violation of 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 Company, the Operating Partnership, any subsidiary or any Subsidiary Property Partnership or any of their assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 Company, the Operating Partnership, any subsidiary or any SubsidiaryProperty Partnership.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries consolidated subsidiaries is (A) in violation of its charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents or (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries 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 or any Subsidiary of its consolidated subsidiaries is subject (collectively, “Agreements and Instruments”), except for any such defaults with respect to this clause (B) that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement Agreement, the Indenture and the Securities, the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) ), and compliance by the Company with its obligations hereunder and under the Indenture and the Securities have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or 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 or any Subsidiary of its consolidated subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect, the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of (A) the charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents of the Company or any Subsidiary; and of its consolidated subsidiaries or (cB) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary of its consolidated subsidiaries or any of their assets, properties or operations (operations, except in the case of for any such violations with respect to this clause (cB) for such violations that as would not 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 or any Subsidiaryof its consolidated subsidiaries.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries, nor, to the knowledge of the Company, North Star, is in violation of its charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease lease, license or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries or North Star, as the case may be, is a party or by which it or any of them its subsidiaries or North Star, as the case may be, may be bound, or to which any of the property or assets of the Company or any Subsidiary of its subsidiaries or North Star, as the case may be, is subject (collectively, “"Agreements and Instruments”), ") except for such violations or defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; and the Effect. The execution, delivery and performance of this Agreement Agreement, the Asset Purchase Agreements and the Gerdau S.A. Subscription Agreement, and the consummation of the transactions ▇▇▇ ▇▇▇▇▇▇ctions contemplated herein and therein and in the Registration Statement, the Disclosure Package U.S. Prospectus and the Final Canadian 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 therein in the U.S. Prospectus and the Canadian Prospectus under the caption “"Use of Proceeds”) "), and compliance by the Company with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breachesbreaches or defaults, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such actions result in any violation of or conflict with the provisions of the charter, partnership agreement, limited liability company agreement, articles or by-laws or other organizational documents of the Company or any Subsidiary; and (c) do not and will not result in any violation of subsidiary 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 the Company or any Subsidiary subsidiary or any of their assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 or any Subsidiarysubsidiary.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary subsidiary is subject (collectively, “"Agreements and Instruments”), ") except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement Agreement, the Pricing Agreement, the Registration Rights Agreement, the Indenture and the Securities (including the issuance of the shares of Common Stock issuable upon conversion of the Securities) and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final Prospectus hereunder (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Offering Memorandum under the caption “"Use of Proceeds”") and compliance by the Company with its obligations hereunder under this Agreement, the Pricing Agreement, the Registration Rights Agreement, the Indenture and the Securities have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents of the Company or any Subsidiary; and (c) do not and will not result in any violation of subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary subsidiary or any of their assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 or any Subsidiarysubsidiary.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is (A) in violation of its charter, partnership agreement, limited liability company agreement, charter or by-laws laws, or other organizational documents (B) except for such defaults that would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary subsidiary is subject (collectively, “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; ) and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Final Prospectus (including the offering, issuance and sale of the Securities pursuant to this Agreement and the use of the proceeds from the sale of the Securities as described therein in the Statutory Prospectus and the Prospectus under the caption “Use of Proceeds”) and in the Concurrent Debt Offering and compliance by the Company with its obligations hereunder hereunder, have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not be reasonably likely to result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in (C) any violation of the provisions of the charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents of the Company or any Subsidiary; and subsidiary or (cD) do not and will not except for such defaults that would not, individually or in the aggregate, reasonably be expected to result in any a Material Adverse Effect, a violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary subsidiary or any of their assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 or any Subsidiarysubsidiary of the Company.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries The Fund is not in violation of its charter, partnership agreement, limited liability company agreement, agreement and declaration of trust or by-laws or other organizational documents laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary Fund is subject (collectively, “"Agreements and Instruments”), ") except for such violations or defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement, the Investment Management Agreement, the Portfolio Management Agreement, the Custodian Agreement and the Transfer Agency Services Agreement referred to in the Registration Statement (as used herein, the "Investment Management Agreement," the "Portfolio Management Agreement," the "Custodian Agreement" and the "Transfer Agency Services Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company Fund with its obligations hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, agreement and declaration of trust or by-laws or other organizational documents of the Company Fund or any Subsidiary; and (c) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Fund or any of their its assets, properties or operations (except operations, other than State securities or "blue sky" laws applicable in connection with the case purchase and distribution of the Securities by the Underwriters pursuant to this clause (c) for such violations that would not result in a Material Adverse Effect)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 or any SubsidiaryFund.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries The Fund is not in violation of --------------------------------- its charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries Fund is a party or by which it or any of them its properties may be bound, or to which any of the property or assets of the Company or any Subsidiary Fund is subject (collectively, “"Agreements and Instruments”"), except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated herein in this Agreement and in the Registration Statement, the Disclosure Package and the Final 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 therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company Fund with its obligations hereunder under this Agreement have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Fund pursuant to, to the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, charter or the by-laws or other organizational documents of the Company Fund, or any Subsidiary; and (c) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Fund or any of their its assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 or any SubsidiaryFund.

Absence of Defaults and Conflicts. Neither None of the Company nor Company, the Operating Partnership or any of its Subsidiaries their subsidiaries is in violation of its charterdeclaration of trust, partnership agreement, limited liability company agreementcharter, by-laws bylaws or other similar organizational documents documents, as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company Company, the Operating Partnership or any of its Subsidiaries 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 Company, the Operating Partnership or any Subsidiary subsidiary is subject (collectively, “Agreements and Instruments”), ) except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement Agreement, the Capped Call Confirmations and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Final Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”) and compliance by the Company Company, the Operating Partnership and their subsidiaries with its their respective obligations hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company Company, the Operating Partnership or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charterdeclaration of trust, partnership agreement, limited liability company agreementcharter, by-laws or other organizational documents bylaws, as the case may be, of the Company Company, the Operating Partnership or any Subsidiary; and (c) do not and will not result in any violation subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company Company, the Operating Partnership or any Subsidiary subsidiary or any of their assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company Company, the Operating Partnership or any Subsidiarysubsidiary. No event of default or default with notice and/or lapse of time that would constitute an event of default in respect of the December Securities has occurred and is continuing.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary of its subsidiaries is subject (collectively, “"Agreements and Instruments”), ") except for such defaults that would not result in or have a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement Agreement, the Registration Rights Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Offering Memorandum and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final 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 therein in the Offering Memorandum under the caption “"Use of Proceeds”") and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or 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 or any Subsidiary of its subsidiaries pursuant to, any of the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that that, singly or in the aggregate, would not result in or have a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect, the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents of the Company or any Subsidiary; and (c) do not and will not result in any violation of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary of its subsidiaries or any of their assetsassets or properties, properties or operations (except in the case of this clause (c) for such violations that would not result in or have a Material Adverse Effect). As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any Subsidiary.gives

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, by-laws constituting or other organizational documents operative document or agreement or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party party, or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary of its subsidiaries is subject (collectively, “"Agreements and Instruments”), ") except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in Effect; the Registration Statementissue and sale of the Shares, the Disclosure Package and the Final Prospectus; and the execution, delivery and performance of this Agreement Agreement, [the International Underwriting Agreement], the Shares 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, thereby or in the Prospectus and the consummation of the transactions contemplated herein herein, therein and in the Registration Statement, the Disclosure Package and the Final Prospectus (including the issuance and sale of the Securities Shares by the Company hereunder [and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”) and International Underwriting Agreement]), the compliance by the Company with its obligations hereunder [and under the International Underwriting Agreement] have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or 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 or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect, the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, by-laws constituting or other organizational documents operative document or agreement of the Company or any Subsidiary; and (c) do not and will not result in any violation of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary of its subsidiaries or any of their assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any Subsidiary.assets or

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

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary subsidiary is subject (collectively, “Agreements and Instruments”), ) except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement Agreement, the Indenture, the First Supplemental Indenture, the Securities and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Final Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture, the First Supplemental Indenture and the Securities have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, by-laws or other organizational documents of the Company or any Subsidiary; and (c) do not and will not result in any violation of subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary subsidiary or any of their assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 or any Subsidiarysubsidiary.

Absence of Defaults and Conflicts. Neither the Company nor --------------------------------- any of its Subsidiaries subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party or by which it or any of them may be bound, bound or to which any of the property or assets of the Company or any Subsidiary is of its subsidiaries may be subject (collectively, “"Agreements and Instruments”"), except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or 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 or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that that, individually or in the aggregate, would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect, the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents of the Company or any Subsidiary; and (c) do not and will not result in any violation of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary of its subsidiaries or any of their assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 or any Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, charter or by-laws or other constituting or organizational documents document or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary subsidiary is subject (collectively, “"Agreements and Instruments”), ") except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement Agreement, the Registration Rights Agreement, the Indenture and the Securities and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final 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 therein in the 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 with its obligations hereunder hereunder, and under the Indenture, the Registration Rights Agreement and the Securities, have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, charter or by-laws or other constituting or organizational documents instrument as in effect on the date hereof of the Company or any Subsidiary; and (c) do not and will not result in any violation of subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary subsidiary or any of their assets, properties or operations (operations, except in the case for any such violation of this clause (c) for such violations that 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 or any Subsidiarysubsidiary.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary subsidiary is subject (collectively, “"Agreements and Instruments”"), except for (a) with respect to the Company's subsidiaries other than the Subsidiaries, such violations that would not result in a Material Adverse Effect, and (b) such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement and the U.S. Purchase Agreement by the Company or ▇▇▇▇▇▇▇, the consummation by the Company or its subsidiaries of the transactions contemplated herein in this Agreement and the U.S. Purchase Agreement, the Related Transactions and the transactions contemplated in the Registration Statement, the Disclosure Package and the Final Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectuses under the caption “"Use of Proceeds”) "), and compliance by the Company and its subsidiaries with its their obligations hereunder under this Agreement, the U.S. Purchase Agreement, the Merger Agreement, the New Bank Credit Agreement, the Supplemental Indenture and the Dealer Manager Agreement, have been duly authorized by all necessary corporate action by the Company or its subsidiaries, as the case may be, except for any required approval of the Merger by the stockholders of the Company, which approval will be obtained prior to the Closing Date, and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (except for (A) such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that (B) such liens, charges, or encumbrances as are otherwise specifically disclosed created in connection with the Registration Statementexecution, delivery and performance of the Final Prospectus and New Bank Credit Facility or the Disclosure Package); (b) do not and Other Secured Agreements, nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents of the Company or any Subsidiary; and (c) do not and will not result in any violation of subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary subsidiary or any of their assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 or any Subsidiarysubsidiary.

Absence of Defaults and Conflicts. The Company is not in violation of its certificate of incorporation (“Charter”), or its bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries Subsidiary is in violation of its charter, partnership agreement, limited liability company agreement, by-laws or other organizational documents or in default in the performance or observance (nor has any event occurred which with notice, lapse of time, or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary is subject (collectively, “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; and the . The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Registration Statement, the Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary pursuant to, the Agreements and Instruments (except for Instruments, nor will such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Final Prospectus and the Disclosure Package); (b) do not and will not action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, by-laws Charter or other organizational documents Bylaws of the Company or the organizational documents of any Subsidiary; Subsidiary (including, without limitation, partnership and (c) do not and will not result in any violation of limited liability company agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary or any of their assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any Subsidiaryoperations.

Absence of Defaults and Conflicts. Neither the Company or ICG LP nor any of its Subsidiaries their subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company Company, ICG LP or any of its Subsidiaries 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 Company, ICG LP or any Subsidiary subsidiary is subject (collectively, “Agreements and Instruments”), ) except for such defaults that would not reasonably be expected to result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement and the Reorganization Agreements and the consummation of the transactions contemplated herein and therein and in the Registration Statement, the Disclosure Package and the Final Prospectus Statement (including the issuance and sale of the Securities and Securities, the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and ICG LP with its their respective obligations hereunder and under the Reorganization Agreements, to the extent it is a party to such agreements, have been duly authorized by all necessary corporate or other action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company Company, ICG LP or any Subsidiary of their subsidiaries pursuant to, the Agreements and Instruments or the Reorganization Agreements (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of (i) the charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents of the Company or any Subsidiary; and subsidiary or (cii) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary subsidiary or any of their assets, properties or operations (operations, except in the case of this clause (cii) for such violations that would not reasonably be expected to result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any Subsidiary.Repayment

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

Absence of Defaults and Conflicts. Neither the Company Operating Partnership nor any of its Subsidiaries Subsidiary is (A) in violation of its charter, partnership agreement, limited liability company agreement, by-laws laws, certificate of limited partnership or partnership agreement or other organizational documents document, as the case may be, or (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries 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 may be bound or any Subsidiary is subject (collectively, “"Agreements and Instruments”"), except (with respect to clause (B) only) for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; and the Effect. The execution, delivery and performance of this Agreement Underwriting Agreement, the applicable Terms Agreement, the Indenture and any other agreement or instrument entered into or issued or to be entered into or issued by the Operating Partnership in connection with the transactions contemplated hereby or thereby or in the Registration Statement and the Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package Statement and the Final 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 therein under the caption “"Use of Proceeds”") and compliance by the Company Operating Partnership with its obligations hereunder and thereunder have been duly authorized by all necessary corporate partnership action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Company Operating Partnership or any Subsidiary pursuant to, the any Agreements and Instruments (Instruments, except for such conflicts, breaches, defaults or defaults, Repayment Events (as defined below) or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect, the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of (A) the charter, partnership agreement, limited liability company agreement, by-laws or other the organizational documents of the Company Operating Partnership or any Subsidiary; and Subsidiary or (cB) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company Operating Partnership or any Subsidiary or any of their assets, properties or operations operations, except (except in the case of this with respect to clause (cB) only) for such violations that would not result in have a Material Adverse Effect). As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a material portion of such indebtedness by the Company Operating Partnership or any Subsidiary.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries The Fund is not in --------------------------------- violation of its charter, partnership agreement, limited liability company agreement, declaration of trust or by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries Fund is a party or by which it or any of them its properties may be bound, or to which any of the property or assets of the Company or any Subsidiary Fund is subject (collectively, “"Agreements and Instruments”"), except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations" respectively) and the consummation of the transactions contemplated herein in this Agreement and in the Registration Statement, the Disclosure Package and the Final 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 therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company Fund with its obligations hereunder under this Agreement have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Fund pursuant to, to the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, declaration of trust or the by-laws or other organizational documents of the Company Fund, or any Subsidiary; and (c) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Fund or any of their its assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 or any SubsidiaryFund.

Absence of Defaults and Conflicts. Neither the Company Operating Partnership nor any of its Subsidiaries Subsidiary is in violation of its charter, partnership agreement, limited liability company agreement, by-laws laws, certificate of limited partnership or partnership agreement or other organizational documents document, as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries 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 may be bound or any Subsidiary is subject (collectively, “"Agreements and Instruments”"), except for such violations or defaults that would not result in a Material Adverse Effect or and except that are otherwise specifically disclosed in no representation is made as to whether there has been any default under the Registration Statement, the Disclosure Package Agreements and the Final Prospectus; and the Instruments with regard to insurance coverage for acts of terrorism. The execution, delivery and performance of this Agreement Underwriting Agreement, the applicable Terms Agreement, the Indenture and any other agreement or instrument entered into or issued or to be entered into or issued by the Operating Partnership in connection with the transactions contemplated hereby or thereby or in the Registration Statement and the Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package Statement and the Final 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 therein under the caption “"Use of Proceeds”") and compliance by the Company Operating Partnership with its obligations hereunder and thereunder have been duly authorized by all necessary corporate partnership action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Company Operating Partnership or any Subsidiary pursuant to, the any Agreements and Instruments (Instruments, except for such conflicts, breaches, defaults or defaults, Repayment Events (as defined below) or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect, the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, by-laws or other the organizational documents of the Company Operating Partnership or any Subsidiary; and (c) do not and will not result in any violation of 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 Operating Partnership or any Subsidiary or any of their assets, properties or operations (operations, except in the case of this clause (c) for such violations that would not result in have a Material Adverse Effect). As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a material portion of such indebtedness by the Company Operating Partnership or any Subsidiary.

Absence of Defaults and Conflicts. Neither the Company or ICG LP nor any of its Subsidiaries their subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company Company, ICG LP or any of its Subsidiaries 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 Company, ICG LP or any Subsidiary subsidiary is subject (collectively, “Agreements and Instruments”), ) except for such defaults that would not reasonably be expected to result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement and the Reorganization Agreements and the consummation of the transactions contemplated herein and therein and in the Registration Statement, the Disclosure Package and the Final Prospectus Statement (including the issuance and sale of the Securities and Securities, the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and ICG LP with its their respective obligations hereunder and under the Reorganization Agreements, to the extent it is a party to such agreements, have been duly authorized by all necessary corporate or other action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company Company, ICG LP or any Subsidiary of their subsidiaries pursuant to, the Agreements and Instruments or the Reorganization Agreements (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of (i) the charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents of the Company or any Subsidiary; and subsidiary or (cii) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary subsidiary or any of their assets, properties or operations (operations, except in the case of this clause (cii) for such violations that would not reasonably be expected to result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any Subsidiarysubsidiary.

Absence of Defaults and Conflicts. Neither None of the Company nor Simon Entities or, to the knowledge of the Operating Partnership, any of its Subsidiaries joint ventures or partnerships in which Simon Entities have an equity interest (“Property Partnerships”) is in violation of its charter, partnership agreement, limited liability company agreement, by-laws laws, certificate of limited partnership or partnership agreement or other organizational documents document, as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries each entity is a party or by which it or any of them may be bound, or to which any of the its property or assets of the Company or any Subsidiary is Property may be bound or subject (collectively, “Agreements and Instruments”), except for such violations (other than with respect to the charter, by-laws, partnership agreement, or other organizational document of the Company, the Operating Partnership or any significant subsidiary) or defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; and the Effect. The execution, delivery and performance of this Agreement Agreement, the Notes, the Indenture and any other agreement or instrument entered into or issued or to be entered into or issued by the Company or the Operating Partnership in connection with the transactions contemplated hereby or thereby or in the Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final 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 therein under the caption “Use of Proceeds”) and compliance by the Company Operating Partnership with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action action, and (a) 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 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, defaults or defaults, Repayment Events or liensLiens, charges or encumbrances that that, singly or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect, the Final Prospectus and the Disclosure Package); (b) do not and will not nor shall such action result in any violation of the provisions of the charter, OP Partnership Agreement or certificate of limited partnership agreement, limited liability company agreement, by-laws of the Operating Partnership or other the organizational documents of the Company any other Simon Entity or any Subsidiary; and (c) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company Operating Partnership, any other Simon Entity or any Subsidiary Property Partnership or any of their assets, properties or operations (operations, except in the case of this clause (c) for such violations (other than with respect to the charter, by-laws, partnership agreement, or other organizational document of the Company, the Operating Partnership or any significant subsidiary) that would not reasonably be expected to result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a material portion of such indebtedness by any Simon Entity or, to the Company or knowledge of the Operating Partnership, any SubsidiaryProperty Partnership.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries --------------------------------- subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, (1) charter or by-laws or other organizational documents or (2) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary subsidiary is subject (collectively, “"Agreements and Instruments”), ") except for such defaults under Agreements and Instruments that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement and the 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 Disclosure Package and the Final Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectuses under the caption “"Use of Proceeds”" and the consummation of the Related Transactions) and compliance by the Company with its obligations hereunder under this Agreement and the U.S. Purchase Agreement have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents of the Company or any Subsidiary; and (c) do not and will not result in any violation of subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary subsidiary or any of their assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 or any Subsidiarysubsidiary.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is currently in violation of its charter, partnership agreement, limited liability company agreement, certificate of incorporation or by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary subsidiary is subject (collectively, “"Agreements and Instruments”), ") except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement Agreement, the Registration Rights Agreement, the Indenture and the Securities and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final 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 therein in the 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 with its obligations hereunder and under the Registration Rights Agreement, the Indenture and the Securities have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (except for such conflictsInstruments, breaches, defaults or Repayment Events or liens, charges or encumbrances that would and will not result in a Material Adverse Effect the payment of any fee or that are otherwise specifically disclosed in an obligation to pay any fee to any other broker, dealer or other similar institution other than the Registration StatementInitial Purchasers, the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents of the Company or any Subsidiary; and (c) do not and will not result in any violation of subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary subsidiary or any of their assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 or any Subsidiarysubsidiary.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiary is (a) in violation of its charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents or laws, (b) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries 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 or any Subsidiary its subsidiary is subject (collectively, “"Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect ") or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Final Prospectus and the Disclosure Package); (b) do not and will not result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, by-laws or other organizational documents of the Company or any Subsidiary; and (c) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary its subsidiary or any of their assets, properties or operations (operations, except for such defaults or violations in the case of this clause clauses (b) and (c) for such violations that would could not result in a Material Adverse Effect). The execution, delivery and performance of this Agreement, the Registration Rights Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Offering Memorandum and the consummation of the transactions contemplated herein and in the 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 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 with its obligations hereunder and under the Registration Rights Agreement, the Indenture and the Securities have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or 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 or its subsidiary pursuant to, the Agreements and Instruments except for such conflicts, breaches or defaults or liens, charges or encumbrances that, singly and in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the charter or by-laws of the Company or its subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or its 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 or any Subsidiaryits subsidiary.

Absence of Defaults and Conflicts. Neither the The Company nor any of its Subsidiaries is not in violation of its charter, partnership agreement, limited liability company agreement, Articles of Incorporation or by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property assets, properties or assets operations of the Company or any Subsidiary is subject (collectively, “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; and the Change. The execution, delivery and performance of this Agreement Agreement, each applicable Terms Agreement, the Indenture, the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Registration Statement, the General Disclosure Package and the Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Final Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”therein) and compliance by the Company with its obligations hereunder and thereunder have been duly authorized by all necessary corporate company action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Company or any Subsidiary pursuant to, the any Agreements and Instruments (except for Instruments, nor will such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Final Prospectus and the Disclosure Package); (b) do not and will not action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, organizational documents or by-laws or other organizational documents of the Company or any Subsidiary; and (c) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary or any of their its assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 or any SubsidiaryCompany.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary of its subsidiaries is subject (collectively, “"Agreements and Instruments”"), except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Offering Memorandum and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final 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 therein in the Offering Memorandum under the caption “"Use of Proceeds”") and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or 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 or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (Instruments, except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect, the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents of the Company or any Subsidiary; and (c) do not and will not result in any violation of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary of its subsidiaries or any of their assets, properties assets or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)properties. As used herein, a “"Repayment Event” " means any 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 or any Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries consolidated subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries consolidated subsidiaries is a party or by which it or any of them may be bound, or to which any of the property properties or assets of the Company or any Subsidiary of its consolidated subsidiaries is subject (collectively, “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; and the Effect. The execution, delivery and performance of this Agreement Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or 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 or any Subsidiary of its consolidated subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that that, singly or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect, the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents of the Company or any Subsidiary; and (c) do not and will not result in any violation of its consolidated subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary of its consolidated subsidiaries or any of their assets, properties assets or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)properties. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any Subsidiaryof its consolidated subsidiaries.

Absence of Defaults and Conflicts. Neither The Company is not in violation of its Certificate of Incorporation, as amended (the “Charter”), or Bylaws, as amended (the “Bylaws”); none of the Subsidiaries is in violation of its charter, bylaws or other organizational documents and neither the Company nor any of its Subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, by-laws or other organizational documents or (A) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary is subject (collectively, “Agreements and Instruments”), or (B) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except for such violations or defaults that would not not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated herein and in the Registration Statement, Statement by the Disclosure Package and the Final Prospectus Company (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events 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 or that are otherwise specifically disclosed in the Registration Statement, the Final Prospectus and the Disclosure PackageEffect); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, by-laws Charter or other organizational documents Bylaws of the Company or the charter, bylaws or other organizational document of any Subsidiary; and (c) do not and nor will not such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary or any of their assets, properties or operations (except in the case of this clause (c) for such violations that would not 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 or any Subsidiary.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter, by-laws, operating agreement or partnership agreement, limited liability company agreementas applicable, by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary of its subsidiaries is subject (collectively, “Agreements and Instruments”), ) except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package Effect; and the Final Prospectus; execution, delivery and filing with the SDAT of the August 2017 Articles Supplementary, the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Final 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 therein under the caption “Use of Proceeds”) and compliance by the Company and the Operating Partnership with its their respective obligations hereunder have been duly authorized by all necessary corporate action and (a) did not, do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, by-laws laws, partnership agreement or other organizational documents operating agreement of the Company or any Subsidiary; and (c) do not and will not result in any violation of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary of its subsidiaries or any of their assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 or any Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries The Depositor is not in violation of its charter, partnership agreement, limited liability company agreement, by-laws or other organizational documents agreement or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument Agreement and Instrument with respect to which the Company or any of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary is subject (collectively, “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final Prospectusit; and the execution, delivery and performance by the Depositor of the Depositor Agreements, this Agreement and the Securities, the consummation of the transactions contemplated herein and or therein, in the Registration Statement, Preliminary Prospectus or in the Disclosure Package and the Final Prospectus (including the issuance and sale of the Securities Notes to the Underwriters pursuant to the terms of this Agreement and the use of the proceeds from the sale of the Securities therefrom as described therein under the caption heading “Use of Proceeds”” in the Prospectus) and compliance by the Company it with its obligations hereunder and thereunder have been duly and validly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge mortgage, pledge, charge, encumbrance, adverse claim or encumbrance other security interest (collectively, “Liens”) upon any of its property or assets of pursuant to the Company Depositor Agreements or any Subsidiary pursuant to, the Agreements and Instruments (except for Liens permitted by the Basic Documents, nor will such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Final Prospectus and the Disclosure Package); (b) do not and will not action result in any violation of the provisions of the charter, partnership agreement, its limited liability company agreement, by-laws agreement or other organizational documents of the Company or any Subsidiary; and (c) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Depositor or any of their its assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)operations. As used herein, a “Repayment Event” means means, with respect to any Bank Entity, any 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 such Bank Entity and “Agreements and Instruments” means, with respect to any Bank Entity, any obligation, agreement, covenant or condition contained in any Subsidiarycontract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which such Bank Entity is a party or by which it may be bound, or to which any of its properties, operations or assets is subject.

Absence of Defaults and Conflicts. Neither the Trust, the Company nor any of its Subsidiaries Subsidiary is in violation of any provision of its charter, partnership agreement, limited liability company agreement, by-laws or other organizational documents the Trust Agreement or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries it is a party or by which it or any of them may be bound, or to which any of the its property or assets of is subject, including, without limitation, the Company or any Subsidiary is subject agreements described in paragraph (xxii) below (collectively, “the "Agreements and Instruments”), ") except for such defaults that have been waived or suspended as described in the Prospectus or that would not not, singly or in the aggregate, result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the executionexecution and delivery of the Operative Documents by the Trustees or the Company, delivery and performance of this Agreement and as the case may be, the consummation of the transactions contemplated herein in the Operative Documents, in the Common Stock Underwriting Agreement and in the Registration Statement, the Disclosure Package and the Final Prospectus Statement (including (i) the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “"Use of Proceeds”" and (ii) the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the prospectus relating thereto under the caption "Use of Proceeds") and compliance by the Offerors with the terms of the Operative Documents to which they are a party, and compliance by the Company with its obligations hereunder under the Common Stock Underwriting Agreement, have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Trust, the Company or any Subsidiary pursuant to, any of the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents of the Company or any Subsidiary; and Subsidiary or the Trust Agreement or the certificate of trust of the Trust filed with the State of Delaware on May 23, 2002 (c) do not and will not result in any violation of the "Trust Certificate"), 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 Trust, the Company or any Subsidiary (including the rules, regulations and requirements of the United States Federal Reserve System (the "Federal Reserve") and the banking laws and regulations of the State of Illinois and the banking laws and regulations of other applicable jurisdictions) or any of their assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 Trust, the Company or any Subsidiary, provided that the Company's obligations pursuant to the Settlement Agreements do not constitute "Repayment Events" for purposes of this Agreement. Each of the Agreements and Instruments is in full force and effect and is valid and enforceable by and against the Trust, the Company or any of the Subsidiaries, as the case may be, and, to the knowledge of the Company, the other parties thereto, in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and by general equitable principles.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is (1) in violation of its chartercharter or statute, partnership agreementas applicable, limited liability company agreement, or by-laws (or other similar organizational documents or documents), (2) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary of its subsidiaries is subject (collectively, “"Agreements and Instruments”"), except as described in the Offering Memorandum and except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed (3) in violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their assets or properties, except as described in the Registration Statement, the Disclosure Package and the Final ProspectusOffering Memorandum; and the execution, delivery and performance of this Agreement Agreement, the Warrant Agreement, the Registration Rights Agreement, the Warrant Registration Rights 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 or any Designated Subsidiary 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 Disclosure Package and the Final 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 therein in the Offering Memorandum under the caption “"Use of Proceeds”") and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect, the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the chartercharter or statute, partnership agreementas applicable, limited liability company agreement, or by-laws (or other similar organizational documents documents) of the Company or any Subsidiary; and (c) do not and will not result in any violation of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary of its subsidiaries or any of their assetsassets or properties, properties or operations (except in assuming that the case Initial Purchasers comply with all of this clause (c) for such violations that would not result in a Material Adverse Effect)their obligations under Section 6 hereof. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. Neither the Company nor any of --------------------------------- its Subsidiaries subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary of its subsidiaries is subject (collectively, “"Agreements and Instruments”), ") except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement Agreement, the Registration Rights Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Offering Memorandum and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final 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 therein in the Offering Memorandum under the caption “"Use of Proceeds”") and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or 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 or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect, the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents of the Company or any Subsidiary; and (c) do not and will not of its subsidiaries or result in any material violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of which the Company has knowledge of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary of its subsidiaries or any of their assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. Neither None of the Company nor Simon Entities or any of its Subsidiaries Property Partnership is in violation of its charter, partnership agreement, limited liability company agreement, by-laws laws, certificate of limited partnership or partnership agreement or other organizational documents document, as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries each entity is a party or by which it or any of them may be bound, or to which any of the its property or assets of the Company or any Subsidiary is Property may be bound or subject (collectively, “Agreements and Instruments”), except for such violations (other than with respect to the charter, by-laws, partnership agreement, or other organizational document of such entities) or defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; and the Effect. The execution, delivery and performance of this Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the Company or the Operating Partnership in connection with the transactions contemplated hereby or thereby or in the Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”) and compliance by each of the Company and the Operating Partnership with its their respective obligations hereunder and thereunder have been duly authorized by all necessary corporate action action, and (a) do not and will shall not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Company Company, the 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, 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 or that are otherwise specifically disclosed in the Registration StatementEffect, the Final Prospectus and the Disclosure Package); (b) do not and will not nor shall such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, Charter and by-laws of the Company, the OP Partnership Agreement or other certificate of limited partnership of the Operating Partnership or the organizational documents of the Company any other Simon Entity or any Subsidiary; and (c) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company Company, the Operating Partnership, any other Simon Entity or any Subsidiary Property Partnership or any of their assets, properties or operations (operations, except in the case of this clause (c) for such violations (other than with respect to the charter, by-laws, partnership agreement, or other organizational document of such entities) that would not result in 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 material portion of such indebtedness by the Company Company, the Operating Partnership, any other Simon Entity or any SubsidiaryProperty Partnership.

Absence of Defaults and Conflicts. Neither the Company nor any --------------------------------- of its the Subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents partnership agreement, as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its 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 or any Subsidiary of the Subsidiaries is subject (collectively, “"Agreements and Instruments”"), except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement and the 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 Disclosure Package and the Final Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectuses under the caption “"Use of Proceeds”") and compliance by the Company and the Partnership with its their respective obligations hereunder under this Agreement and the U.S. Purchase Agreement have been duly authorized by all necessary corporate or partnership, as the case may be, action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents partnership agreement, as the case may be, of the Company or any Subsidiary; and (c) do not and will not result in any violation of Subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary or any of their assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 or any Subsidiary.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary is subject (collectively, “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package Final Prospectus and the Final ProspectusDisclosure Package; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Final Prospectus and the Disclosure Package); (b) do not and will not result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, by-laws or other organizational documents of the Company or any Subsidiary; and (c) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary or any of their assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any Subsidiary.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries ----------------------------------- Amgen-Regeneron Partners is in violation of its charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents the partnership agreement, as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries Amgen-Regeneron Partners is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary Amgen-Regeneron Partners is subject (collectively, “"Agreements and Instruments”), ") except for such -------------------------- defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final Prospectus Statement (including the issuance and sale of the Initial Securities and the Option Securities (if any) and the use of the proceeds from the sale of the Initial Securities and the Option Securities (if any) as described therein in the Prospectus under the caption “"Use of Proceeds”") and --------------- compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Amgen- Regeneron Partners pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents of the Company or any Subsidiary; and (c) do not and will not result in any violation the partnership agreement of Amgen-Regeneron Partners, or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Amgen-Regeneron Partners or any of their assets, properties or operations (except in the case of this clause (c) for any such violations violation that would could not be expected to result in a Material Adverse Effect). As used herein, a “"Repayment Event” " means any event or condition which gives the --------------- holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any SubsidiaryAmgen-Regeneron Partners.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is (i) in violation of its charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents or laws, (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contractcontract (including, without limitation, any license agreement, limited liability company agreement, partnership agreement or joint venture), indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary subsidiary is subject (collectively, “Agreements and Instruments”), except for such defaults that would not result ) or (iii) in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Final Prospectus and the Disclosure Package); (b) do not and will not result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, by-laws or other organizational documents of the Company or any Subsidiary; and (c) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary subsidiary or any of their assets, properties or operations (except except, in the case cases of this clause clauses (cii) and (iii), for such defaults or violations that would not reasonably be expected to 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 in connection with the transactions contemplated hereby or thereby or in the Disclosure Package and Final Offering Memorandum and the consummation of the transactions contemplated herein and in the Disclosure Package and 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 Disclosure Package and Final Offering Memorandum under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate actions 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), or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or 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 (i) of the provisions of the charter or by-laws of the Company or its subsidiaries or (ii) of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any subsidiary or any of their assets, properties or operations, except, in the case of clause (ii), for any violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any Subsidiarysubsidiary.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries The Fund is not in violation of its charter, partnership agreement, limited liability company agreement, articles of incorporation or by-laws or other organizational documents laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary Fund is subject (collectively, “Agreements and Instruments”), ) except for such violations or defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement, the Investment Management Agreement, the Sub-Administration Agreement, the Custodian Agreement and the Stock Transfer Agency Agreement referred to in the Registration Statement (as used herein, the “Management Agreement,” the “Sub-Administration Agreement,” the “Custodian Agreement” and the “Stock Transfer Agency Agreement,” respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company Fund with its obligations hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, articles of incorporation or by-laws or other organizational documents of the Company Fund or any Subsidiary; and (c) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Fund or any of their its assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 or any SubsidiaryFund.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, their respective charter or by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary subsidiary is subject (collectively, “Agreements and Instruments”), ) except for such violations or defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement Agreement, the Registration Rights Agreement, the Indenture and the Securities and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final 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 therein in the Offering Memorandum under the caption “Use of Proceeds”” and the issuance of the shares of Common Stock issuable upon conversion of the Notes) and compliance by the Company with its obligations hereunder and under the Registration Rights Agreement, the Indenture and the Securities have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance (“Lien”) upon any property or assets of the Company or any Subsidiary subsidiary pursuant to, or require any consent under or permit any third party to terminate, any of the Agreements and Instruments (Instruments, except for such conflicts, breaches, defaults defaults, Repayment Events, Liens, consents or Repayment Events or liens, charges or encumbrances terminations that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect, the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents of the Company or any Subsidiary; and (c) do not and will not result in any violation of subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary subsidiary or any of their assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 or any Subsidiarysubsidiary.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary subsidiary is subject (collectively, “Agreements and Instruments”), ) except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement Agreement, the Indenture, the Registration Rights Agreement, and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Offering Memorandum and the consummation of the transactions contemplated herein hereby or thereby and in the Registration Statement, the Disclosure Package and the Final 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 therein in the Offering Memorandum under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, by-charter or by laws or other organizational documents of the Company or any Subsidiary; and (c) do not and will not result in any violation of subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary subsidiary or any of their assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 or any Subsidiarysubsidiary.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries The Trust is not in violation of its charter, partnership agreement, limited liability company agreement, declaration of trust or by-laws or other organizational documents laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary Trust is subject (collectively, “"Agreements and Instruments”), ") except for such violations or defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement, the Advisory Agreement, the Administration Agreement, the Custodian Agreement, the Transfer Agent and Service Agreement and the Auction Agency Agreement referred to in the Registration Statement (as used herein, the "Advisory Agreement," the "Administration Agreement", the "Custodian Agreement", the "Transfer Agency Agreement" and the "Auction Agency Agreement", respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final Prospectus Statement (including the issuance and sale of the Securities AMPS and the use of the proceeds from the sale of the Securities AMPS as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company Trust with its obligations hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Trust pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect), the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, declaration of trust or by-laws or other organizational documents of the Company Trust or any Subsidiary; and (c) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Trust or any of their its assets, properties or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)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 or any SubsidiaryTrust.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary of its subsidiaries is subject (collectively, “"Agreements and Instruments”), ") except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect, the Disclosure Package and the Final Prospectus; and the execution, delivery and performance of this Agreement, the Indenture, the Warrant Agreement and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Offering Memorandum and the consummation of of' the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final 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 therein in the Offering Memorandum under the caption “"Use of Proceeds”") and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or 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 or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementEffect, the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents of the Company or any Subsidiary; and (c) do not and will not result in any violation of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary of its subsidiaries or any of their assets, properties assets or operations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect)properties. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or debenture, other evidence of indebtedness or preferred stock (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 or preferred stock by the Company or any Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. Neither the The Company nor any is not in violation --------------------------------- of its Subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, by-laws charter or other organizational documents bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary is subject (collectively, “"Agreements and Instruments”"), except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; and the (as defined below). The (A) execution, delivery and performance of this Underwriting Agreement, the Indenture and each applicable Terms Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Registration Statement and the Prospectus, and (B) consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final Prospectus therein (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”Underwritten Securities) and compliance by the Company with its obligations hereunder and thereunder, have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Company or pursuant to any Subsidiary pursuant to, the Agreements and Instruments (except for Instruments, nor will such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Final Prospectus and the Disclosure Package); (b) do not and will not action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, by-laws charter or other organizational documents bylaws of the Company or any Subsidiary; and (c) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, court (domestic or foreign), having jurisdiction over the Company or any Subsidiary or any of their its assets, properties or operations (operations, except in the case of this clause (c) for such violations conflicts, breaches or defaults that would not result in a Material Adverse Effect). 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 SubsidiaryCompany.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, charter or by-laws laws, or other similar organizational documents documents, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary of its subsidiaries is subject (collectively, “Agreements and Instruments”), ) except for such defaults that would not reasonably be expected to result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusChange; and the execution, delivery and performance of this Agreement 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 consummation of the transactions contemplated herein and in the Registration Statement, hereby or thereby or by the Disclosure Package and the Final 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 therein in the Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (Instruments, except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration StatementChange, the Final Prospectus and the Disclosure Package); (b) do not and nor will not such action result in any violation of (A) the provisions of the charter, partnership agreement, limited liability company agreement, charter or by-laws laws, or other similar organizational documents documents, of the Company or any Subsidiary; and of its subsidiaries or (cB) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary of its subsidiaries or any of their assets, properties or operations (operations, except in the case of this with respect to clause (c) for B), any such violations that violation as would not reasonably be expected to result in a Material Adverse Effect)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 or any Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary of its subsidiaries is subject (collectively, “"Agreements and Instruments”), ") except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Offering Memorandum and the consummation of the transactions contemplated herein and in the Registration Statement, the Disclosure Package and the Final 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 therein in the Offering Memorandum under the caption “"Use of Proceeds”") and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, (1) conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property properties, assets or assets operations of the Company or any Subsidiary of its subsidiaries pursuant to, or (2) constitute a Repayment Event (as defined below) under, the Agreements and Instruments (except for such conflictsInstruments, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Final Prospectus and the Disclosure Package); nor (b) do not and will not such action result in any violation of the provisions of the charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents of the Company or any Subsidiary; charters, bylaws and (c) do not and will not result in any violation similar organizational documents of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary of its subsidiaries or any of their assets, properties or operations (operations, except in the case of this clause (ca), subclause (1) above, for such violations that any conflict, breach, default, lien, charge or encumbrance as 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 or any Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. Neither the Company Company, nor any --------------------------------- of its Subsidiaries is in violation of its charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary of its Subsidiaries is subject (collectively, “"Agreements and Instruments”), ") except for such defaults that would not result in a Material Adverse Effect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final ProspectusEffect; and the execution, delivery and performance of this Agreement Agreement, the International Purchase Agreement, and the 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 Disclosure Package and the Final Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectuses under the caption “"Use of Proceeds”) "), and compliance by the Company with its obligations hereunder under this Agreement, the International Purchase Agreement, and the Combination Agreements have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary of its Subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or that are otherwise specifically and except as disclosed in the Registration StatementStatement or in the Combination Agreements (including the exhibits and schedules thereto)), the Final Prospectus and the Disclosure Package); (b) do not and will not result in any violation of (i) the provisions of the charter, partnership agreement, limited liability company agreement, charter or by-laws or other organizational documents of the Company or any Subsidiary; and of its Subsidiaries or (cii) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary of its Subsidiaries or any of their assets, properties or operations (except except, in the case of this clause (c) for ii), to the extent that any such violations that violation would not result in 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 or any Subsidiaryof its Subsidiaries.

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