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, regulations or by-laws (or equivalent 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 of its Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company 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, singly or in the aggregate, would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, regulations or by-laws (or equivalent documents) of the Company or any of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiaries.

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

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

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

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

Absence of Defaults and Conflicts. Neither the The Company nor any of its Subsidiaries is not (i) in violation of its charter, regulations certificate of incorporation or by-laws laws, or (or equivalent documentsii) 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 of its Subsidiaries is subject (collectively, “Agreements and Instruments”) except except, in the case of clause (ii), for such any defaults under which, singularly or in the Agreements and Instruments that aggregate, would not result in a Material Adverse EffectChange; and the execution, delivery and performance of this Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the consummation of the transactions contemplated herein by this Agreement and in the Registration Statement (Time of Sale Prospectus including the issuance and sale of the Securities Offered Shares and the use of the proceeds from the sale of the Securities Offered Shares as described in therein, and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under this Agreement (except as contemplated by the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and Time of Sale Prospectus) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property of the properties or assets of the Company or any of its Subsidiaries pursuant to, to the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults, liens, charges or encumbrances thatwhich, singly singularly or in the aggregate, would not result in a Material Adverse Effect)Change, nor will such action result in any violation of the provisions of the charter, regulations certificate of incorporation or by-laws (or equivalent documents) of the Company or any of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its SubsidiariesCompany.

Absence of Defaults and Conflicts. Neither the The Company nor any of its Subsidiaries is not (i) in violation of its charter, regulations or by-laws or similar incorporation or organizational documents or (ii) in violation or equivalent 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 of its Subsidiaries is subject (collectively, “Agreements and Instruments”) ), except in the case of clause (ii), for such violations and defaults under the Agreements and Instruments that would not result in a Material Adverse Effectmaterial adverse effect on the Company; and the execution, delivery and performance of this Agreement, the Indenture 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 consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) this Agreement, and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and 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 result in a breach of any of the terms and provisions of, or constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company 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, singly or in the aggregate, would not result in a Material Adverse Effect)Instruments, nor will such action result in any violation of the provisions of the charter, regulations or by-laws (or equivalent documents) similar organizational documents of the Company or any of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assets, properties or operations, except in each case (other than with respect to such charter, by-laws or similar organizational documents of the Company) for such conflicts, violations, breaches or defaults which would not reasonably be expected to result in a material adverse effect on the Company. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness that is material to the operations or financial results of the Company (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its SubsidiariesCompany.

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

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiary is in violation of its charterarticles of association, regulations charter or by-laws (or equivalent similar organizational documents) (the “Organizational Documents”) or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contractCompany contracts, indentureindentures, mortgagemortgages, deed deeds of trust, loan or credit agreementagreements, notebonds, lease notes, debentures, evidences of indebtedness, swap agreements, hedging agreements, leases or other agreement instruments or instrument agreements to which the Company or any of its Subsidiaries subsidiary is a party or by which it the Company or any of them may be bound, its subsidiary is bound or to which any of the property or assets of the Company or any of its Subsidiaries subsidiary is subject that, solely in the case of this clause are material with respect to the Company and its subsidiary taken as a whole (collectivelya “Company Document”), “Agreements and Instruments”) except for such defaults under the Agreements and Instruments that would not not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; . The execution and the execution, delivery of and performance of obligations under this Agreement, the Indenture 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 consummation of the transactions contemplated herein and in the Registration Statement U.S. Prospectus (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described in the U.S. Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and 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 default, Termination Event 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 of its Subsidiaries subsidiary pursuant to, the Agreements and Instruments (any Company Documents, except for such conflicts, breaches, defaults or Repayment Events or liensLiens that would not, charges or encumbrances that, singly individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect), nor will such action result in any violation of (i) the provisions of the charter, regulations or by-laws (or equivalent documents) Organizational Documents of the Company or any of its Subsidiaries subsidiary or (ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries subsidiary or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiaries.

Absence of Defaults and Conflicts. Neither This Agreement has been duly authorized, executed and delivered by the Company nor any and this Agreement constitutes a valid and binding agreement of its Subsidiaries the Company enforceable against the Company in accordance with the terms hereof or thereof, as the case may be, except as the enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally or general equitable principles. The Company is not in violation of its charter, regulations articles or by-laws (notice of articles or equivalent documents) other constating 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 a 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 of its Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the ). The execution, delivery and performance of this Agreement, the Indenture 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 consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) therein and compliance by the Company with its obligations hereunder and under the Indenture thereunder, and the Securities application of the net proceeds from the offering and such other agreements or instruments sale of the Shares to be sold by the Company in the manner set forth in the Prospectus under “Use of Proceeds” have been duly authorized by all necessary corporate action action, and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance Lien upon any property or of the assets of the Company or any Subsidiary of its Subsidiaries the Company, pursuant to, to the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, would not result in a Material Adverse Effect)Instruments, nor will such action result in any violation of or conflict with the provisions of the charter, regulations articles or by-laws (notice of articles or equivalent documents) other constating documents of the Company or any of its Subsidiaries 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 of its Subsidiaries Subsidiary, or any of their its assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its SubsidiariesCompany. This Agreement conforms in all material respects to the description thereof contained in the Offering Documents.

Absence of Defaults and Conflicts. Neither the The Company nor any of its Subsidiaries is not (i) in violation of its charter, regulations charter or by-laws or (or equivalent documentsii) 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 of its Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture 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 consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company 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, singly or in the aggregate, that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, regulations charter or by-laws (or equivalent documents) of the Company or any of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its SubsidiariesCompany.

Absence of Defaults and Conflicts. Neither the The Company nor any of its Subsidiaries is not (i) in violation of its charter, regulations or by-laws or similar incorporation or organizational documents or (ii) in violation or equivalent 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 of its Subsidiaries is subject (collectively, “Agreements and Instruments”) ), except in the case of clause (ii), for such violations and defaults under the Agreements and Instruments that would not result in a Material Adverse EffectEffect on the Company; and the execution, delivery and performance of this Agreement, the Indenture 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 consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) this Agreement, and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and 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 result in a breach of any of the terms and provisions of, or constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company 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, singly or in the aggregate, would not result in a Material Adverse Effect)Instruments, nor will such action result in any violation of the provisions of the charter, regulations or by-laws (or equivalent documents) similar organizational documents of the Company or any of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assets, properties or operations, except in each case (other than with respect to such charter, by-laws or similar organizational documents of the Company) for such conflicts, violations, breaches or defaults which would not reasonably be expected to result in a Material Adverse Effect on the Company. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness that is material to the operations or financial results of the Company (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its SubsidiariesCompany.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries (including the Partnership) is in violation of its charterArticles of Incorporation, regulations Bylaws, Certificate of Limited Partnership or by-laws (or equivalent documents) partnership agreement or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, material indenture, mortgage, deed of trust, loan or credit agreement, notelease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound. The issue and sale of the Shares and the compliance by the Company and the Partnership with all of the provisions of the Shares, lease this Agreement, the Master Forward Confirmation and each “Supplemental Confirmation” under the Master Forward Confirmation and the consummation of the transactions herein and therein contemplated (including the Company’s issuance and sale of the Shares from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the Master Forward Confirmation and “Supplemental Confirmation” under the Master Forward Confirmation, as applicable, and its use of the net proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any material indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its Subsidiaries subsidiaries (including the Partnership) is a party or by which it the Company or any of them may be bound, its subsidiaries (including the Partnership) is bound or to which any of the property or assets of the Company or any of its Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the consummation of the transactions contemplated herein and in the Registration Statement subsidiaries (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”Partnership) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company 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, singly or in the aggregate, would not result in a Material Adverse Effect)is subject, nor will such action result in any violation of the provisions of the charter, regulations Articles of Incorporation or by-laws (or equivalent documents) Bylaws of the Company Company, the Certificate of Limited Partnership or partnership agreement of the Partnership or any of its Subsidiaries statute or any applicable law, statute, rule, regulation, judgment, order, writ rule or decree regulation of any government, government instrumentality court or court, domestic governmental agency or foreign, body having jurisdiction over the Company or any of its Subsidiaries subsidiaries (including the Partnership) or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiariesproperties.

Absence of Defaults and Conflicts. Neither the The Company nor any of its Subsidiaries is not in violation of its charter, regulations Restated Certificate of Incorporation or byBy-laws (or equivalent 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 its property or assets of the Company or any of its Subsidiaries is subject (collectively, “"Agreements and Instruments”") except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities Senior 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 (including the issuance and sale of the Securities Senior Notes and the use of the proceeds from the sale of the Securities Senior Notes as described in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments Senior Notes have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company 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, singly or in the aggregate, that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, regulations Restated Certificate of Incorporation or byBy-laws (or equivalent documents) Laws of the Company or any of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company Company, other than such events or any conditions that are contemplated by the terms of its Subsidiariesthis Agreement and the Indenture.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter, regulations charter or by-laws (or equivalent 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 of its Subsidiaries subsidiary is subject (collectively, “Agreements and Instruments”) except for any such violations or defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, Agreement and the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the consummation of the transactions contemplated herein herein, therein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) Statement, and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, that would not result in a Material Adverse Effect), nor will such action result in any violation of (a) the provisions of the charter, regulations Amended and Restated Certificate of Incorporation or byAmended and Restated By-laws (or equivalent documents) Laws of the Company or the organizational documents of any of its Subsidiaries Subsidiary or (b) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries subsidiary or any of their assets, properties or operationsoperations (except, with respect to clause (b), for such violations that would not result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiariessubsidiary.

Absence of Defaults and Conflicts. Neither None of the Company nor any of or its Significant Subsidiaries is (i) in violation of its charterOrganizational Documents, regulations (ii) in default, and no event has occurred which, with notice or by-laws (lapse of time or equivalent documents) or in default both, would constitute such a default, in the due performance or observance of any term, obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, notelease or other agreement or instrument to which it is a party or by which it is bound or which any of its properties or assets may be subject or (iii) in violation of any law, ordinance, governmental rule, regulation or court decree to which it or its property or assets may be subject, except, with respect to (ii) or (iii), for any such violations or defaults that would not be reasonably likely, singly or in the aggregate, to have a Material Adverse Effect. The execution and delivery of the Transaction Documents by the Company, the consummation of the transactions contemplated hereby and thereby, the application of the proceeds from the sale of the Securities as described under “Use of Proceeds” in the General Disclosure Package and the Prospectus will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, impose any Lien, charge or encumbrance upon any property or assets of the Company and its Significant Subsidiaries under, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license, lease or other agreement or instrument to which the Company or any of its Significant Subsidiaries is a party or by which it the Company or any of them may be bound, its Significant Subsidiaries is bound or to which any of the property or assets of the Company or any of its Significant Subsidiaries is subject subject; (collectively, “Agreements and Instruments”ii) except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company 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, singly or in the aggregate, would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, regulations or by-laws (or equivalent documents) Organizational Documents of the Company or any of its Subsidiaries Significant Subsidiaries; or (iii) result in any violation of any statute or any applicable law, statute, rule, regulation, judgment, order, writ decree, rule or decree regulation of any government, government instrumentality court or court, domestic governmental agency or foreign, body having jurisdiction over the Company or any of its Subsidiaries Significant Subsidiaries, or any of their respective properties or assets, properties except with respect to clauses (i) and (iii), conflicts, breaches, violations or operations. As used hereindefaults that would not, individually or in the aggregate, reasonably be expected to have a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its SubsidiariesMaterial Adverse Effect.

Absence of Defaults and Conflicts. Neither the Company nor any of its Significant Subsidiaries is in violation of the provisions of its charter, regulations charter or by-laws (or equivalent 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 Significant Subsidiaries is a party or by which it or any of them may be bound, bound or to which any of the property or assets of the Company or any of its Significant Subsidiaries is subject (collectively, “Agreements and Instruments”) "COMPANY AGREEMENTS AND INSTRUMENTS"), except for such defaults under the Agreements and Instruments that would not result in a Company Material Adverse Effect; and the execution, delivery and performance of this the Distribution Agreement, the Indenture and the Securities Funding 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 in the Time of Sale Prospectus, the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale Time of the Securities Sale Prospectus and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or not constitute a breach ofbreach, violation or default or Repayment Event (as defined belowA) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, regulations or by-laws (or equivalent documents) of the Company or any of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Significant Subsidiaries, or (B) of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its properties, except for such breaches, violations or defaults under subsections (A) or (B) immediately above that would not result in a Company Material Adverse Effect; PROVIDED, that no representation or warranty is made with respect to compliance with law of the Funding Agreement to the extent that the source of the funds used by the Trust to purchase such Funding Agreement renders such funds, or any property or investment acquired with such funds, subject to governmental seizure or other penalty under the USA Patriot Act.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of (i) its operating agreement, charter, regulations bylaws or by-laws other comparable governing document or (or equivalent documentsii) 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 assets, properties or assets operations of the Company or any of its Subsidiaries subsidiaries is subject (collectively, “Agreements and Instruments”), except with respect to clause (ii) except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, the Indenture and Indenture, the Securities Notes and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Registration Statement, the General Disclosure Package and the Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities Notes and the use of the proceeds from the sale of the Securities Notes as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments thereunder have been duly authorized by all necessary corporate limited liability company action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Company or any of its Subsidiaries subsidiaries pursuant to, the any Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, regulations charter or by-laws (or equivalent documents) bylaws of the Company or any of its Subsidiaries subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiariessubsidiaries.

Absence of Defaults and Conflicts. Neither the (a) The Company nor any of and its Subsidiaries is are not in violation of its charter or its bylaws, and the execution and delivery of this Agreement and the performance of this Agreement, the issuance, sale and delivery of the Offered Shares, the consummation of the transactions herein contemplated and compliance with the terms hereof do not and will not conflict with or violate the terms of or constitute or result in a breach of or default under: (i) its (or any of its Subsidiaries’) charter, regulations bylaws or by-laws other organizational documents, as the case may be; or (or equivalent documentsii) 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 agreementlease, note, lease note or other material 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 their properties are bound; or assets of the Company (iii) any law, rule or any of its Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or regulation applicable to be entered into or issued by the Company in connection with the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company 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, singly or in the aggregate, would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, regulations or by-laws (or equivalent documents) of the Company or any of its Subsidiaries or any applicable lawof their properties; or (iv) any writ, statute, rule, regulation, judgment, order, writ injunction or decree of any government, government governmental instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assetsproperties except, properties in the cases of clauses (ii), (iii) and (iv), for such violations or operations. As used hereindefaults that, individually or in the aggregate, could not reasonably be expected to result in a “Repayment Event” means Material Adverse Effect. (b) To the knowledge of the Company, the Advisor is not in violation of its Certificate of Formation, limited liability company agreement and other organizational and operating documents, and the execution, delivery and performance of the Advisory Agreement, the consummation of the transactions therein contemplated and compliance with the terms thereof do not and will not conflict with or violate the terms of or constitute or result in a breach of or default under: (i) its Certificate of Formation; or (ii) its limited liability company agreement; or (iii) any event or condition which gives the holder indenture, mortgage, deed of any notetrust, debenture lease, note or other evidence of indebtedness (agreement or any person acting on such holder’s behalf) instrument to which the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company Advisor or any of its Subsidiariessubsidiaries is a party or to which the Advisor or any of its subsidiaries or any of their properties is bound; or (iv) any law, rule or regulation applicable to the Advisor; or (v) any writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Advisor or its assets except, in the cases of clauses (ii), (iii), (iv) and (v), for such violations or defaults that, individually or in the aggregate, could not reasonably be expected to result in (a) a material adverse effect on the condition, financial or otherwise, earnings, business affairs or business prospects of the Advisor or (b) a Material Adverse Effect. To the knowledge of the Company, no consent, approval, authorization or order of any court or other governmental agency or body has been or is required for the performance of the Advisory Agreement by the Advisor.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter, regulations charter or by-laws (or equivalent documents) 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 of its Subsidiaries subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture 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 consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Operating Partnership with its their respective obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate or limited partnership action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, regulations charter or by-laws (or equivalent documents) of the Company or any of its Subsidiaries 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 of its Subsidiaries subsidiary or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiariessubsidiary.

Absence of Defaults and Conflicts. Neither the Company nor any of its Significant Subsidiaries is is, or with the giving of notice or lapse of time or both would be, in violation of or in default under, its charter, regulations charter or by-laws (or equivalent 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 agreement or other agreement or instrument which is material to the Company and its consolidated subsidiaries taken as a whole and to which the Company or any of its Significant Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any of its Significant Subsidiaries or any of their respective properties is subject (collectivelybound or subject, “Agreements and Instruments”) except for such violations and defaults under which individually and in the Agreements and Instruments that aggregate would not result in a Material Adverse Effect; and the . The execution, delivery and performance by the Company of its obligations under this Agreement, the Indenture and the Offered Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and do this Agreement will not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) underwith, or result in the creation or imposition a breach of any lienof the terms or provisions of, charge or encumbrance upon constitute a default under, any property indenture, mortgage, deed of trust, loan agreement or assets of other agreement or instrument which is material to the Company and its consolidated subsidiaries taken as a whole and to which the Company or any of its Significant Subsidiaries pursuant tois a party or by which the Company or any of its Significant Subsidiaries or any of their respective properties is bound or subject, the Agreements and Instruments (except for such conflicts, breaches, breaches and defaults or Repayment Events or liens, charges or encumbrances that, singly or which individually and in the aggregate, aggregate would not result in a Material Adverse Effect), nor will any such action result in any violation of the provisions of the charter, regulations Certificate of Incorporation or bythe By-laws (or equivalent documents) Laws of the Company or any of its Subsidiaries applicable law or statute or any applicable law, statute, rule, regulation, judgment, order, writ rule or decree regulation of any government, government instrumentality court or court, domestic governmental agency or foreign, body having jurisdiction over the Company or any of Company, its Significant Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiariesrespective properties.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter, regulations certificate of organization or operating agreement or charter or by-laws (or equivalent documents) laws, 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 subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any of its Subsidiaries subsidiary is subject (collectively, “"Agreements and Instruments”") except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture 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 consummation of the transactions contemplated herein and in the Registration Statement Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate limited liability company action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, regulations certificate of organization or operating agreement or the charter or by-laws (or equivalent documents) of the Company or any of its Subsidiaries 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 of its Subsidiaries 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 of its Subsidiariessubsidiary.

Absence of Defaults and Conflicts. Neither the The Company nor any of its Subsidiaries is not in violation of its charter, regulations articles of incorporation or by-laws (or equivalent 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 of its Subsidiaries is subject (collectively, “Agreements and Instruments”) ), except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture 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 consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company 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, singly or in the aggregate, that would not result in a Material Adverse EffectEffect or are disclosed in the Prospectus), nor will such action result in any violation of the provisions of the charter, regulations articles of incorporation or by-laws (or equivalent documents) of the Company or any of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assets, properties or operationsoperations (except for such violations as would not result in a Material Adverse Effect). The Company has not sent or received any communication regarding termination of, or intent not to renew, any of the Agreements and Instruments referred to or described in, or filed as an exhibit to, the Registration Statement, and no such termination or non-renewal has been threatened by the Company or, to the Company’s knowledge, in writing by any other party to any such Agreement or Instrument. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its SubsidiariesCompany.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter, regulations charter or by-laws (or equivalent 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 subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any of its Subsidiaries subsidiaries is subject (collectively, the “Agreements and Instruments”) ), except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, the Indenture and 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 by the Prospectus Supplement and the consummation of the transactions contemplated herein and in the Registration Statement Prospectus Supplement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus Supplement under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or 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 of its Subsidiaries subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that, singly individually or in the aggregate, would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, regulations bylaws or by-laws (the memorandum and articles of association, as applicable, or equivalent documents) other organizational documents of the Company or any of its Subsidiaries subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries subsidiaries or any of their assets, properties assets or operationsproperties. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiariessubsidiaries prior to its scheduled maturity. No consent, approval, authorization, order, license, registration or qualification of or with any such government instrumentality or court is required for the issue and sale of the Securities or the consummation by the Company of the transactions contemplated by this Agreement or the Indenture, except such consents, approvals, authorizations, orders, licenses, registrations or qualifications as have been obtained under the 1933 Act, the 1939 Act and as may be required under state securities or “blue sky” laws in connection with the purchase and distribution of the Securities by the Underwriters.

Absence of Defaults and Conflicts. Neither the Company nor any --------------------------------- of its Subsidiaries subsidiaries is in violation of its charter, regulations charter or by-laws (or equivalent documents) bylaws or in material default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease 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 or their properties may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject and in which the violation or default might result in a material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any of its Subsidiaries subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company 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, singly or in the aggregate, would not result in a Material Adverse Effect)subject, nor will such action result in any violation of the provisions of the charter, regulations charter or by-laws (or equivalent documents) bylaws of the Company or any of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ administrative regulation or decree of any government, government instrumentality administrative or court, domestic court order or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiariesdecree.

Absence of Defaults and Conflicts. Neither the The Company nor any of its Subsidiaries is not in violation of the provisions of its charter, regulations charter or by-laws (or equivalent documents) or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which it or any of them may be bound, bound or to which any of the property or assets of the Company or any of its Subsidiaries is subject (collectively, “the "Company Agreements and Instruments”) "), except for such violations or defaults under the Agreements and Instruments that would not result in a Company Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, the Indenture and the Securities each Funding 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 by the Prospectus (collectively, the "Company Program Documents"), the consummation of the transactions contemplated herein and in by the Registration Statement Prospectus (including the issuance and sale of the Securities Notes and the use of the proceeds from the sale of the Securities therefrom as described in the Prospectus under the caption “Use of Proceeds”Prospectus) and the compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments thereunder have been duly authorized by all necessary corporate action and do not and will notconflict with, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach ofbreach, violation, default, event or default condition which gives the holder of any note, debenture or Repayment Event other evidence of indebtedness (as defined belowor any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Company or any of its Subsidiaries pursuant to, the any Company Agreements and Instruments (except for Instruments, except, in each case, to the extent such conflictsconflict, breachesbreach, defaults violation, default, event, condition, lien, charge or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, encumbrance would not result in a Company Material Adverse Effect), nor will such action actions result in any violation of the provisions of the charter, regulations charter or by-laws (or equivalent documents) of the Company or any of its Subsidiaries or or, except to the extent such violation would not result in a Company Material Adverse Effect, any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assets, properties or operations. As used ; provided, however, that each such law, statute, rule, regulation, judgment, order, writ or decree is in writing; provided, further, that the Company does not make any representations, warranties or covenants with respect to any applicable insurance laws, regulations, rulings, policies and guidelines addressed in the memorandum of Company Counsel (as defined herein, a “Repayment Event” means any event or condition which gives the holder of any note, 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 received by the Agents pursuant to Section 6(b)(vii) hereof and/or the opinion of Company or any of its SubsidiariesCounsel received by the Agents pursuant to Section 6(b)(viii) hereof.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter, regulations partnership agreement, operating agreement or by-laws (or equivalent documents) laws, as applicable, of the Company and its 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 subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any of its Subsidiaries subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the executionissue and sale of the Securities, and the authorization, execution and delivery and performance of this Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued Agreement by the Company in connection with and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities hereby and the use application of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”” in the Registration Statement, Prospectus and General Disclosure Package (i) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and do will not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute result in a breach or violation of any of the terms or provisions of, or constitute a default or Repayment Event (as defined below) under, any indenture, mortgage, deed of trust, loan agreement, lease or result in other instrument to which the creation Company or imposition any of its subsidiaries is a party or by which the Company or any lien, charge of its subsidiaries is bound or encumbrance upon to which any of the property or assets of the Company or any of its Subsidiaries pursuant tosubsidiaries is subject, the Agreements and Instruments (except for such conflicts, breaches, violations or defaults or Repayment Events or liensas would not, charges or encumbrances that, singly individually or in the aggregate, would not result in have a Material Adverse Effect), nor or except as set forth or contemplated in the Registration Statement, Prospectus or General Disclosure Package, (ii) will such action not result in any violation of the provisions of the charter, regulations partnership agreement, operating agreement or by-laws (or equivalent documents) laws, as applicable, of the Company or any of its Subsidiaries subsidiaries and (iii) will not violate any statute or any applicable law, statute, rule, regulation, judgment, order, writ rule or decree regulation of any government, government instrumentality court or court, domestic governmental agency or foreign, body having jurisdiction over the Company or any of its Subsidiaries subsidiaries or any of their assets, properties or operationsassets; and no consent, approval, authorization or order of, or filing, registration or qualification with any such court or governmental agency or body is required for the sale of the Securities by the Company or the consummation by the Company of the transactions contemplated by this Agreement, except for the registration of the Securities under the 1933 Act and such consents, approvals, authorizations, registrations or qualifications (x) as may be required under the 1934 Act and applicable state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters and (y) as have been obtained or will be obtained prior to the Closing Time, as hereinafter defined. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiariessubsidiary.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is (i) in violation of its charter, regulations charter or by-laws or (or equivalent documentsii) 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 of its Subsidiaries subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults under the Agreements and Instruments that as would not result in a Material Adverse Effect; and the executionexecution and delivery by the Company of, delivery and the performance by the Company of its obligations under, this Agreement, the Indenture and 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 Disclosure Package and the Prospectus, and the consummation by the Company of the transactions contemplated herein and in the Registration Statement Disclosure Package and the Prospectus (including the offering, sale, issuance and sale delivery of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture Disclosure Package and the Securities and such other agreements or instruments Prospectus), 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 any of its Subsidiaries subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, regulations charter or by-laws (or equivalent documents) of the Company or any of its Subsidiaries subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiariessubsidiaries.

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

Absence of Defaults and Conflicts. Neither the The Company nor any of its Subsidiaries is not in violation of its charter, regulations or by-laws (or equivalent documents) Organizational Documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contractCompany Document, indenture, mortgage, deed except (solely in the case 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 of its Subsidiaries is subject (collectively, “Agreements and Instruments”Documents) except for such defaults under the Agreements and Instruments that would not not, individually or in the aggregate, result in a Company Material Adverse Effect; , or which might be expected to materially and adversely affect the consummation of the transactions contemplated in this Agreement, or the performance by the Company of its obligations under this Agreement. The execution, delivery and performance of this Agreement, the Indenture Agreement and the Securities Fund Agreements (other than the Staffing 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 consummation of the transactions contemplated herein and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Pre-Pricing Prospectus and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture this Agreement and the Securities and such Fund Agreements (other agreements or instruments have been duly authorized by all necessary corporate action and than the Staffing 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 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 of its Subsidiaries pursuant to, any Company Documents, except (solely in the Agreements and Instruments (except case of Company Documents) for such conflicts, breaches, defaults or Repayment Events or liensLiens that would not, charges or encumbrances that, singly individually or in the aggregate, would not result in a Company Material Adverse Effect), nor will such action result in any violation of (i) the provisions of the charter, regulations or by-laws (or equivalent documents) Organizational Documents of the Company or any of its Subsidiaries or (ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiaries.

Absence of Defaults and Conflicts. (i) Neither the Company nor any of its Subsidiaries is in violation of its charter, regulations charter or by-laws (or equivalent documents) similar organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any of its Subsidiaries Subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect); and (ii)(A) the execution, delivery and performance of this Agreement, the Indenture Agreement or of any Terms 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 consummation of the transactions contemplated herein or in any Terms Agreement and in the Registration Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries Subsidiary pursuant to, the Agreements and Instruments Instruments, (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, would not result in a Material Adverse Effect), B) nor will such action result in any violation of the provisions of the charter, regulations charter or by-laws (or equivalent documents) similar organizational documents of the Company or any Subsidiary, and (C) nor will such action 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 of its Subsidiaries Subsidiary or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its SubsidiariesSubsidiary.

Absence of Defaults and Conflicts. Neither the Company nor any of -------------------------------------- its Subsidiaries subsidiaries is in violation of its charter, regulations charter document or by-laws (or equivalent 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 of its Subsidiaries subsidiary is subject (collectively, “"Agreements and Instruments”") except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture 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 consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus Prospectuses under the caption “"Use of Proceeds”") and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, regulations charter document or by-laws (or equivalent documents) of the Company or any of its Subsidiaries 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 of its Subsidiaries 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 of its Subsidiariessubsidiary.

Absence of Defaults and Conflicts. Neither the The Company nor any of its Subsidiaries is not in violation of the provisions of its charter, regulations charter or by-laws (or equivalent documents) or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which it or any of them may be bound, bound or to which any of the property or assets of the Company or any of its Subsidiaries is subject (collectively, the “Company Agreements and Instruments”) ), except for such violations or defaults under the Agreements and Instruments that would not result in a Company Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, the Indenture and the Securities each Funding 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 by the Time of Sale Prospectus (collectively, the “Company Program Documents”), the consummation of the transactions contemplated herein and in by the Registration Statement Time of Sale 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 in the Prospectus under the caption “Use Time of Proceeds”Sale Prospectus) and the compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments thereunder have been duly authorized by all necessary corporate action and do not and will notconflict with, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach ofbreach, or default or Repayment Event (as defined below) underviolation, or result in the creation or imposition of any liendefault, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, regulations or by-laws (or equivalent documents) of the Company or any of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company under, or result in the creation or imposition of any lien, charge or encumbrance upon any assets, properties or operations of the Company pursuant to, any Company Agreements and Instruments, except, in each case, to the extent such conflict, breach, violation, default, event, condition, lien, charge or encumbrance would not result in a Company Material Adverse Effect, nor will such actions result in any violation of the provisions of the charter or by-laws of the Company or, except to the extent such violation would not result in a Company Material Adverse Effect, any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiariesassets, properties or operations; provided, however, that each such law, statute, rule, regulation, judgment, order, writ or decree is in writing; provided, further, that the Company does not make any representations, warranties or covenants with respect to any applicable insurance laws, regulations, rulings, policies and guidelines addressed in the memorandum of Company Counsel (as defined herein) received by the Agents pursuant to Section 6(b)(vii) hereof and/or the opinion of Company Counsel received by the Agents pursuant to Section 6(b)(viii) hereof.

Absence of Defaults and Conflicts. Neither the The Company nor any of its Subsidiaries is not in violation of its charter, regulations charter or by-laws (or equivalent 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 of its Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture 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 consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities, the sale of the Insider Securities in the Private Placement, and the use of the proceeds from the sale of the Securities and the sale of the Insider Securities as described in the Prospectus under the caption “Use of Proceeds”) ), and compliance by the Company with its obligations hereunder and with its obligations under the Indenture and the Securities and such other agreements or instruments Subscription Agreements have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company 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, singly or in the aggregate, that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, regulations charter or by-laws (or equivalent documents) of the Company or any of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its SubsidiariesCompany.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries is in violation of its charter, regulations or by-laws (or equivalent 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 of its Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company 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, singly or in the aggregate, would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, regulations charter or by-laws (or equivalent documents) of the Company or any of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiaries.

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

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

Absence of Defaults and Conflicts. Neither the The Company nor any of its Subsidiaries is not (i) in violation of its charter, regulations or by-laws or similar incorporation or organizational documents or (ii) in violation or equivalent 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 of its Subsidiaries is subject (collectively, “Agreements and Instruments”), or (iii) in violation of or in default under any statute, law, rule, ordinance or regulation of any governmental instrumentality, except in the case of clauses (ii) and (iii), for such violations and defaults under the Agreements and Instruments that would not result in a Material Adverse EffectEffect on the Company; and the execution, delivery and performance of this Agreement, the Indenture 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 consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) this Agreement, and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and 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 result in a breach of any of the terms and provisions of, or constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company 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, singly or in the aggregate, would not result in a Material Adverse Effect)Instruments, nor will such action result in any violation of the provisions of the charter, regulations or by-laws (or equivalent documents) similar organizational documents of the Company or any of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assets, properties or operations, except in each case (other than with respect to such charter, by-laws or similar organizational documents of the Company) for such conflicts, violations, breaches or defaults which would not reasonably be expected to result in a Material Adverse Effect on the Company. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness that is material to the operations or financial results of the Company (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its SubsidiariesCompany.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries is in violation of its charter, regulations charter or by-laws (or equivalent 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 of its Subsidiaries Subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture 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 consummation of the transactions contemplated herein in this Agreement and in the Registration Statement (including Statement, the issuance and sale of the Securities Disclosure Package and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments this Agreement have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, regulations charter or by-laws (or equivalent documents) of the Company or any of its Subsidiaries 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 of its Subsidiaries Subsidiary or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its SubsidiariesSubsidiary.

Absence of Defaults and Conflicts. Neither the Company nor any of its Designated Subsidiaries is in violation of its charter, regulations or memorandum of association, bye-laws, by-laws (or equivalent documents) similar incorporation or organizational documents or in violation or default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Designated Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any of its Subsidiaries subsidiary is subject (collectively, the “Agreements and Instruments”) except for such defaults under the material Agreements and Instruments that would not result in a Material Adverse Effect; the issue and sale by the Company of the Securities, if and when issued, the execution and delivery of this Agreement and the execution, delivery and performance of compliance by the Company with this Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and this Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries Designated Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, regulations or memorandum of association, bye-laws, by-laws (or equivalent documents) similar organizational documents of the Company or any of its Subsidiaries Designated 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 of its Subsidiaries Designated Subsidiary or any of their assets, properties or operations. As used herein, operations (except for such violations that would not result in a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiaries.Material Adverse Effect);

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries is in violation of its charter, regulations charter or by-laws (or equivalent 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 of its Subsidiaries is subject (collectively, “"Agreements and Instruments”) "), except as set forth in the Registration Statement or the Prospectus or except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and . Except as set forth in the Registration Statement or the Prospectus, the execution, delivery and performance of this Underwriting Agreement, the Indenture and the Securities 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 the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Underwritten Securities and the use of the proceeds from the sale of the Underwritten Securities as described in the Prospectus under the caption “"Use of Proceeds”" as well as the issuance of any Underlying Securities) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Company or any of its Subsidiaries pursuant to, the any Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, would not result in a Material Adverse Effect)Instruments, nor will such action result in any violation of the provisions of the charter, regulations charter or by-laws (or equivalent documents) of the Company or any of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiaries.,

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries the Operating --------------------------------- Partnership is in violation of its charter, regulations or by-laws (laws, agreement of limited liability company, agreement of limited partnership or equivalent documents) other organizational documents or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries the Operating Partnership is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any of its Subsidiaries the Operating Partnership is subject (collectivelysubject, “Agreements and Instruments”) except for any such defaults under the Agreements and Instruments violation or default that would not result in have a Material Adverse Effectmaterial adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and it subsidiaries considered as one enterprise or the Operating Partnership and its subsidiaries considered as one enterprise; and the execution, delivery and performance of this Agreement, Agreement and the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) therein and compliance by the Company (with its respect to this Agreement only) and the Operating Partnership, each severally, with obligations hereunder and under the Indenture and the Securities and such other agreements or instruments thereunder have been duly authorized by all necessary corporate action and do not action, and will not, whether with or without the giving of notice or passage of time or both, not conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Operating Partnership pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or the Operating Partnership is a party or by which any of them may be bound, or to which any of the property or assets of the Operating Partnership or any of its Subsidiaries pursuant tosubsidiaries is subject, the Agreements and Instruments (except for any such conflicts, breaches, defaults violation or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, default that would not result in have a Material Adverse Effect)material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise or the Operating Partnership and its subsidiaries considered as one enterprise, nor will such action result in any violation of the provisions of the charter, regulations or by-laws (laws, agreement of limited liability company, agreement of limited partnership or equivalent documents) other organizational documents of the Company or any of its Subsidiaries the Operating Partnership or any applicable law, statuteadministrative regulation or administrative or court decree, ruleexcept for any such violation or default that would not have a material adverse effect on the condition, regulationfinancial or otherwise, judgmentor the earnings, order, writ business affairs or decree business prospects of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company and its subsidiaries considered as one enterprise or any of the Operating Partnership and its Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiariessubsidiaries considered as one enterprise.

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

Absence of Defaults and Conflicts. (i) Neither the Company nor any of its Subsidiaries ABC is in violation of its charter, regulations charter or by-laws (or equivalent 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 ABC is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any of its Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such violations and defaults under the Agreements and Instruments that as would not result in have a Material Adverse Effect; and (ii)(A) the execution, delivery and performance of this Agreement, the Indenture Agreement or of any applicable Terms 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 consummation of the transactions contemplated herein or in any applicable Terms Agreement and in the Registration Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries ABC pursuant to, the Agreements and Instruments Instruments, (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, would not result in a Material Adverse Effect), B) nor will such action result in any violation of the provisions of the charter, regulations charter or by-laws (or equivalent documents) of the Company or ABC, and (C) nor will such action 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 of its Subsidiaries ABC or any of their assets, properties or operationsoperations (each, a “Governmental Entity”), except in the case of clauses (ii)(A) and (ii)(C), such violation or default as would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its SubsidiariesABC.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries the Bank is in violation of its charter, regulations charter or by-laws (laws, partnership agreement or equivalent operating agreement or similar organizational documents) , as applicable, or is in default (or, with the giving of notice or lapse of time, would reasonably be expected to be in the performance or observance of default) (“Default”) under any obligation, agreement, covenant or condition contained in any contract, indenture, mortgageloan, deed of trust, loan or credit agreement, note, lease lease, license agreement, contract, franchise or other instrument (including, without limitation, any pledge agreement, security agreement, mortgage or other instrument or agreement evidencing, guaranteeing, securing or instrument relating to indebtedness) to which the Company or any of its Subsidiaries the Bank is a party or by which it or any of them may be bound, or to which any of the property their respective properties or assets of the Company or any of its Subsidiaries is are subject (collectivelyeach, an “Agreements and InstrumentsExisting Instrument”) ), except for such defaults under the Agreements and Instruments that Defaults as would not result reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; and the . The Company’s execution, delivery and performance of this Agreement, each of the Indenture Transaction Documents and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the consummation of the transactions contemplated herein hereby and in the Registration Statement (including the issuance and sale of the Securities and (including the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Pricing 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 and such other agreements or instruments (i) have been duly authorized by all necessary corporate action and do will not and result in any violation of the provisions of the charter or by-laws, partnership agreement or operating agreement or similar organizational documents, as applicable, of the Company or the Bank, (ii) will not, whether with or without the giving of notice or passage of time or both, not conflict with or constitute a breach of, or default Default or a Debt Repayment Triggering Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries the Bank pursuant to, or require the Agreements consent of any other party to, any Existing Instrument, and Instruments (iii) will not result in any violation of any law, regulation or administrative or court decree applicable to the Company or the Bank, except for in the case of clauses (ii) and (iii) such conflictsas would not reasonably be expected, breaches, defaults or Repayment Events or liens, charges or encumbrances that, singly individually or in the aggregate, would not result in to have a Material Adverse Effect. No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental or regulatory authority or agency, is required for the Company’s execution, delivery and performance of each of the Transaction Documents (as defined below) and consummation of the transactions contemplated hereby and by the Registration Statement, the Pricing Disclosure Package and the Prospectus, except such as have been obtained or made by the Company, or received from any Regulatory Agency (as defined below), nor will and are in full force and effect under the Securities Act and such action result in any violation of the provisions of the charter, regulations as may be required under applicable state securities or by-blue sky laws (or equivalent documents) of the Company or any of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assets, properties or operationsFINRA. As used herein, (i) a “Debt Repayment Triggering Event” means any event or condition which gives gives, or with the giving of notice or lapse of time would reasonably be expected to give, the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiariesthe Bank; and (ii) “Transaction Documents” means this Agreement, the Indenture and the Securities, collectively.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries is (a) in violation of the provisions of its charter, regulations amended and restated certificate of incorporation or by-laws (or equivalent similar organizational documents), (b) or in default and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any obligation, agreementterm, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease indenture or other agreement instrument to which it is a party or by which it is bound or to which any of its properties is subject, except for any such defaults that would not, individually or in the aggregate, have a material adverse effect on the condition, financial or otherwise, results of operations, business or prospects of the Company and its Subsidiaries taken as a whole, or (c) in violation of any law, ordinance, governmental rule, regulation or court decree to which it or its property may be subject, except for any such violations that would not, individually or in the aggregate, have a material adverse effect on the condition, financial or otherwise, results of operations, business or prospects of the Company and its Subsidiaries taken as a whole. None of (w) the execution, delivery and performance of this Agreement and the Investment Agreement, (x) the consummation of the transactions contemplated hereby, thereby or as described in the Registration Statement, the Time of Sale Information or the Prospectus, (y) the issuance, sale and delivery of the Shares or (z) the compliance by the Company with all of the provisions of this Agreement and the Investment Agreement and the consummation of the transactions herein and therein contemplated and as described in the Registration Statement, the Time of Sale Information or the Prospectus will result in a breach or violation of, or constitute a default under, the amended and restated certificate of incorporation or by-laws or other governing documents of the Company or any of its Subsidiaries, or any agreement, indenture or other instrument to which the Company or any of its Subsidiaries is a party or by which it or any of them may be is bound, or to which any of the property or assets of the Company or any their respective properties is subject, and assuming each Underwriter and each of its Subsidiaries is subject (collectivelyaffiliates has complied and will comply with all applicable laws and regulations in each jurisdiction in which it acquires, “Agreements and Instruments”) except for offers, sells or delivers Shares, nor will any such defaults under action or the Agreements and Instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities its obligations hereunder, thereunder or as described in the Registration Statement, the Time of Sale Information or the Prospectus under the caption “Use violate any law, rule, administrative regulation or decree of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach ofany court, or default any governmental agency or Repayment Event (as defined below) underbody having jurisdiction over the Company, its Subsidiaries or any of their respective properties, or result in the creation or imposition of any lien, charge charge, claim or encumbrance upon any property or assets asset of the Company 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, singly or in the aggregate, would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, regulations or by-laws (or equivalent documents) of the Company or any of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiaries.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its chartercharter or bylaws or other organizational documents, regulations or by-laws (or equivalent documents) as the case may be, or in material default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease 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 or their properties may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject and in which the violation or default might result in a material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and will not conflict with or constitute a breach of, or default under, or result in the creation or ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorported July 10, 2003 imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any of its Subsidiaries subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company 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, singly or in the aggregate, would not result in a Material Adverse Effect)subject, nor will such action result in any violation of the provisions of the charter, regulations charter or by-laws (or equivalent documents) bylaws of the Company or any of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ administrative regulation or decree of any government, government instrumentality administrative or court, domestic court order or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiariesdecree.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries Significant Subsidiary is in violation of its charter, regulations or by-laws (or equivalent 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 it is a party or by which it or any of them may be bound, bound or to which any of the property or assets of the Company or any of its Subsidiaries is subject (collectivelyproperties may be subject, “Agreements and Instruments”) except for such defaults under the Agreements and Instruments that would not result in have a Material Adverse Effect; material adverse effect on the condition (financial or otherwise), earnings, business affairs or business prospects of the Company and its subsidiaries, considered as one enterprise. The execution and delivery of this Agreement and the execution, delivery and performance of this AgreementU.S. Purchase Agreement by the Company, the Indenture issuance and delivery of the Shares and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued Rights, the consummation by the Company in connection with the consummation of the transactions contemplated herein in this Agreement and the U.S. Purchase Agreement, in the Rights Plan, in the Prospectuses and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture terms of this Agreement, the U.S. Purchase Agreement and the Securities and such other agreements or instruments Rights Plan have been duly authorized by all necessary corporate action on the part of the Company and do not and will notnot result in any violation of the charter or by-laws of the Company or any Significant Subsidiary, whether with and do not and will not conflict with, or without result in a breach of any of the giving of notice terms or passage of time or bothprovisions of, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Significant Subsidiary under (A) any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument to which the Company or any Significant Subsidiary is a party or by which it may be bound or to which any of its Subsidiaries pursuant to, the Agreements and Instruments properties may be subject (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, that would not result in have a Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), nor will such action result in any violation of the provisions of the charterearnings, regulations business affairs or by-laws (or equivalent documents) business prospects of the Company and its subsidiaries, considered as one enterprise) or (B) any of its Subsidiaries or any existing applicable law, statute, rule, regulation, judgment, order, writ order or decree of any government, government governmental instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries Significant Subsidiary or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiariesrespective properties.

Absence of Defaults and Conflicts. Neither the The Company nor any of its Subsidiaries is not (i) in breach or violation of its certificate or articles of incorporation, charter, regulations bylaws, limited liability company agreement, certificate or by-laws agreement of limited or general partnership, memorandum and articles of association, or other similar organizational documents, as the case may be, of such entity, (or equivalent documentsii) in breach of or in default (or, with the giving of notice or lapse of time or both, would be in the performance or observance of default) (“Default”) under any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, deed of trust, note, bond, contract, franchise, lease or other agreement agreement, obligation, condition, covenant or instrument to which the Company or any of its Subsidiaries is a party or by which it or any of them may be bound, bound or to which any of the property or assets of the Company or any of its Subsidiaries is subject (collectivelyeach, an “Agreements Existing Instrument”), or (iii) in violation of any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company, except, with respect to clauses (ii) and Instruments”(iii) except only, for such defaults under the Agreements and Instruments breaches, violations or Defaults that would not result not, individually or in the aggregate, have a Material Adverse Effect; and the . The Company’s execution, delivery and performance of this Agreement, the Indenture Agreement and the Securities each 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 consummation of the transactions contemplated herein and in hereby or thereby or by the Registration Statement and the Prospectus (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments (i) have been duly authorized by all necessary corporate action and do not action, and will notnot result in any breach or violation of the certificate or articles of incorporation, whether with charter, bylaws, limited liability company agreement, certificate or without agreement of limited or general partnership, memorandum and articles of association, or other similar organizational documents, as the giving case may be, of notice or passage of time or boththe Company, (ii) will not conflict with or constitute a breach of, or default Default or a Debt Repayment Triggering Event (as defined below) under, or result in the creation or imposition of any lien, charge charge, claim or encumbrance upon any property or assets of the Company or any of its Subsidiaries pursuant to, or require the Agreements consent of any other party to, any Existing Instrument, and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, would iii) will not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charterany statute, regulations or by-laws (or equivalent documents) of the Company or any of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ order or decree applicable to the Company of any government, government instrumentality or court, domestic regulatory body, administrative agency, governmental body, arbitrator or foreign, other authority having jurisdiction over the Company or any of its Subsidiaries or any of their assetsproperties, properties as applicable, except, with respect to clauses (ii) and (iii) only, for such conflicts, breaches, Defaults, Debt Repayment Triggering Events or operationsviolations that would not, individually or in the aggregate, have a Material Adverse Effect. As used herein, a “Debt Repayment Triggering Event” means any event or condition which gives gives, or with the giving of notice or lapse of time or both would give, the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) ), issued by the Company, the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its SubsidiariesCompany.

Absence of Defaults and Conflicts. Neither the Company nor any of its Material Subsidiaries is in violation of its charter, regulations charter or by-laws (or equivalent 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 Material Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any of its Subsidiaries Material Subsidiary is subject (collectively, “"Agreements and Instruments”) except "), except, in each case other than with respect to the charter or by-laws of the Company or any of its Material Subsidiaries, for such violations or defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Underwriting Agreement, the Indenture applicable Terms Agreement and the Securities Indenture, and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Registration Statement and the Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Underwritten Securities and the use of the proceeds from the sale of the Underwritten Securities as described under the caption "Use of Proceeds" in the Prospectus under the caption “Use of Proceeds”relating to such Underwritten Securities) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any assets, property or assets operations of the Company or any of its Material Subsidiaries pursuant to, the any Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, regulations charter or by-laws (or equivalent documents) of the Company or any of its Material 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 ("Relevant Laws") or any of its Material Subsidiaries or any of their assets, properties or operationsoperations except, in each case other than with respect to the charter or by-laws of the Company or any of its Material Subsidiaries or Relevant Laws, for such conflicts, breaches, defaults, Repayment Events, liens, charges, encumbrances, or violations that would not result in a Material Adverse Effect. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Material Subsidiaries.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter, regulations charter or by-laws (or equivalent 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 of its Subsidiaries subsidiary is subject (collectively, “"Agreements and Instruments”") except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture Agreement and the Securities U.S. Purchase 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 consummation of the transactions contemplated herein in this Agreement, the U.S. Purchase Agreement and in the Registration Statement (including the issuance and sale of the Securities and Securities, the use of the proceeds from the sale of the Securities as described in the Prospectus Prospectuses under the caption “"Use of Proceeds”" and the concurrent issuance and sale by the Company of 4,500,000 FELINE PRIDES(SM) and $450,000,000 aggregate principal amount of senior debt (the "Concurrent Offerings")) and compliance by the Company with its obligations hereunder and under the Indenture this Agreement and the Securities and such other agreements or instruments U.S. Purchase Agreement have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, that would not result in a Material Adverse EffectEffect and except for the contemplated use of proceeds as described in the Registration Statement), nor will such action result in any violation of the provisions of the charter, regulations charter or by-laws (or equivalent documents) of the Company or any of its Subsidiaries 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 of its Subsidiaries 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 of its Subsidiariessubsidiary.

Absence of Defaults and Conflicts. Neither The Trust is not in violation of the trust certificate of the Trust filed with the State of Delaware (the "Trust Certificate") or the Trust Agreement, and neither the Company nor any of its Subsidiaries Subsidiary is in violation of its charter, regulations charter or by-laws (laws; none of the Trust, the Company or equivalent documents) or any Subsidiary 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 it is a party or by which it or any of them may be bound, or to which any of the its property or assets of the Company or any of its Subsidiaries is subject (collectively, “"Agreements and Instruments”") except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreementthe Operative Documents by the Trust or the Company, as the case may be, the Indenture issuance, sale and delivery of the Preferred Securities, the Junior Subordinated Debentures 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 Guarantee, the consummation of the transactions contemplated herein and in by the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) Operative Documents and compliance by the Company Offerors with its obligations hereunder and under the Indenture and terms of the Securities and such other agreements or instruments Operative Documents to which they are a party have been duly authorized by all necessary corporate action on the part of the Company and, at the Closing Time, will have been duly authorized by all necessary action on the part of the Trust and do not and will not, whether with or without the giving of notice or passage of time or both, violate, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any security interest, mortgage, pledge, lien, charge charge, encumbrance, claim or encumbrance equitable right upon any property or assets of the Trust, the Company or any of its Subsidiaries subsidiaries pursuant to, to any of the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, regulations charter or by-laws (or equivalent documents) of the Company or any Subsidiary or the Trust Agreement or the Trust Certificate, or violation by the Company or any Subsidiary of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government authority, agency or instrumentality or court, domestic or foreign, including, without limitation, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation and the Office of the Comptroller of the Currency ("OCC") having jurisdiction over the Company Trust, the Company, the Company's subsidiaries, or any of its Subsidiaries or any of their assetsrespective properties (collectively, properties or operations"Governmental Entities"). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiaries.a

Absence of Defaults and Conflicts. Neither None of the Company Combining Companies nor any of its Subsidiaries their respective subsidiaries is (1) in violation of its charter, regulations or by-laws (or equivalent documents) other organizational instrument 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 any Combining 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 any Combining Company or any of its Subsidiaries subsidiaries is subject (collectively, “"Agreements and Instruments”") except for such defaults under that, individually or in the Agreements and Instruments that aggregate, would not result in a Material Adverse Effect or (2) in violation of any law, ordinance, governmental rule, regulation or court decree to which it or its property or assets may be subject or has failed to obtain any material license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or assets or to the conduct of its business, except for such violations or failures that, individually or in the aggregate, would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture U.S. Purchase Agreement and the Securities Combination Transaction Agreements and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the consummation of the transactions contemplated herein in this Agreement, the U.S. Purchase Agreement and the Combination Transaction Agreements and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus Prospectuses under the caption “"Use of Proceeds”") and compliance by the each Combining Company with its obligations hereunder and under this Agreement, the Indenture U.S. Purchase Agreement and the Securities and such other agreements or instruments Combination Transaction Agreements have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the any Combining Company or any of its Subsidiaries subsidiaries pursuant to, to the Agreements and Instruments (except for such conflicts, breaches, defaults or defaults, Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, that would not result in a Material Adverse Effect), nor will such action result in any violation of (A) the provisions of the charter, regulations or by-laws (or equivalent documents) other organizational instrument of the any Combining Company or any of its Subsidiaries subsidiaries or (B) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the any Combining Company or any of its Subsidiaries subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event except, in the case of clause (B), for violations that, individually or condition which gives in the holder of any noteaggregate, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiaries.would not

Absence of Defaults and Conflicts. Neither the The Company nor any of its Subsidiaries is not in violation of its charter, regulations or by-laws (or equivalent documents) Organizational Documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contractCompany Document, indenture, mortgage, deed except (solely in the case 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 of its Subsidiaries is subject (collectively, “Agreements and Instruments”Documents) except for such defaults under the Agreements and Instruments that would not not, individually or in the aggregate, result in a Company Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, the Fund Agreements (other than the Staffing Agreement), the Securities, the Indenture and the Securities DTC 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 consummation of the transactions contemplated herein and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Pre-Pricing Prospectus and the Prospectus under the caption “Use of Proceeds”” and, if applicable, the issuance of the shares of Common Stock upon conversion of the Securities) and compliance by the Company with its obligations hereunder and under the Indenture this Agreement and the Securities and such Fund Agreements (other agreements or instruments have been duly authorized by all necessary corporate action and than the Staffing 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 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 of its Subsidiaries pursuant to, any Company Documents, except (solely in the Agreements and Instruments (except case of Company Documents) for such conflicts, breaches, defaults or Repayment Events or liensLiens that would not, charges or encumbrances that, singly individually or in the aggregate, would not result in a Company Material Adverse Effect), nor will such action result in any violation of (i) the provisions of the charter, regulations or by-laws (or equivalent documents) Organizational Documents of the Company or any of its Subsidiaries or (ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiaries.

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

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter, regulations charter or bybye-laws (or equivalent other constituent documents) , or is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease trust or other instrument or agreement or instrument to which the Company or any of its Subsidiaries it is a party or by which it or any of them its property may be bound, bound or to which any of the property or assets of the Company or any of its Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults under defaults, if any, that individually or in the Agreements and Instruments that aggregate would not result in have a Material Adverse Effect; and the execution, execution and delivery and performance by the Company of this Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued performance by the Company in connection with of, or compliance with, its obligations under this Agreement, the consummation sale and delivery by the Company of the Shares, the Rights and, upon exercise of the Rights, the Preferred Shares, and the other transactions contemplated herein and in this Agreement or the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action on the part of the Company and do not and will notnot result in a breach or violation of any of the terms or provisions of, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon upon, any property or assets of the Company or any subsidiary of its Subsidiaries pursuant tothe Company under, (a) any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Agreements and Instruments (Company or any of the Company's subsidiaries is a party or by which any of them is bound or to which any of their properties may be subject, except for such conflicts, breaches, defaults or Repayment Events or liensviolations, defaults, liens and charges or encumbrances that, singly or in the aggregate, that would not result in have a Material Adverse Effect), nor will such action result in any violation of or (b) the provisions of the charter, regulations charter or bybye-laws (or equivalent documents) other constituent documents of the Company or any of its Subsidiaries the Company's subsidiaries, or (c) any statute, rule or regulation, or any applicable lawdecree, statute, rule, regulation, judgment, order, writ judgment or decree order of any government, government instrumentality United States domestic ("domestic") or court, domestic foreign court or foreign, governmental agency or body having jurisdiction over the Company or any of its Subsidiaries the Company's subsidiaries, or any of over their assetsrespective properties, properties except for such breaches, violations, defaults, liens, charges or operations. As used hereinencumbrances, if any, that would not have a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its SubsidiariesMaterial Adverse Effect.

Absence of Defaults and Conflicts. Neither the The Company nor any of its Subsidiaries is not in violation of the provisions of its charter, regulations charter or by-laws (or equivalent documents) or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which it or any of them may be bound, bound or to which any of the property or assets of the Company or any of its Subsidiaries is subject (collectively, “the "Company Agreements and Instruments”) "), except for such defaults under the Agreements and Instruments that would not result in a Company Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, the Indenture and the Securities each Funding 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 by the applicable Time of Sale Prospectus (collectively, the "Company Program Documents"), the consummation of the transactions contemplated herein and in by the Registration Statement applicable Time of Sale Prospectus (including the issuance and sale of a series of Notes by the Securities applicable Trust and the use of the proceeds from the sale of the Securities therefrom as described in the Prospectus under the caption “Use applicable Time of Proceeds”Sale Prospectus) and the compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments thereunder have been duly authorized by all necessary corporate action and do not and will notconflict with, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach ofbreach, violation, default, event or default condition that gives the holder of any note, debenture or Repayment Event other evidence of indebtedness (as defined belowor any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Company or any of its Subsidiaries pursuant to, the any Company Agreements and Instruments (except for Instruments, except, in each case, to the extent such conflictsconflict, breachesbreach, defaults violation, default, event, condition, lien, charge or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, encumbrance would not result in a Company Material Adverse Effect), nor will such action actions result in any violation of the provisions of the charter, regulations charter or by-laws (or equivalent documents) of the Company or any of its Subsidiaries or or, except to the extent such violation would not result in a Company Material Adverse Effect, any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assets, properties or operations. As used ; provided, however, that each such law, statute, rule, regulation, judgment, order, writ or decree is in writing; provided, further, that the Company does not make any representations, warranties or covenants with respect to any applicable insurance laws, regulations, rulings, policies and guidelines addressed in the memorandum of Company Counsel (as defined herein, a “Repayment Event” means any event or condition which gives the holder of any note, 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 received by the Agents pursuant to Section 7(b)(vii) hereof and/or the opinion of Company or any of its SubsidiariesCounsel received by the Agents pursuant to Section 7(b)(viii) hereof.

Absence of Defaults and Conflicts. Neither Each of the Company nor any of its Subsidiaries is and the Lender are not in violation of its charter, regulations or by-laws (or equivalent documents) their respective constating documents or in default in any material respect in the performance 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, licence or other agreement or instrument to which any of the Company or any of its Subsidiaries and the Lender is a party or by which it or any either of them may be bound, or to which any either of the property or assets of the Company or any of its Subsidiaries the Lender is subject (collectively, “Agreements and Instruments”) except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the ). The execution, delivery and performance of this Agreement, the Indenture 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 consummation of the transactions contemplated herein and in the Registration Statement Offering Documents (including the issuance authorization, issuance, sale and sale delivery of the Securities Debentures and the issuance of the Underlying Shares on the conversion of Debentures, and the use of the proceeds from the sale of the Securities Debentures as described in the Prospectus Offering Documents under the caption heading “Use of Proceeds”) ), and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments hereunder, have been duly authorized by all necessary corporate action action, and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance Lien upon any property or assets of the Company or any of its Subsidiaries the Lender pursuant to, to the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, would not result in a Material Adverse Effect)Instruments, nor will such action result in any violation of or conflict with, the provisions of the charter, regulations or by-laws (or equivalent documents) constating documents of the Company or any of its Subsidiaries the Lender or any existing applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, Governmental Authority having jurisdiction over the Company or any of its Subsidiaries the Lender or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiaries.

Absence of Defaults and Conflicts. Neither the Company nor any None of its Subsidiaries is in violation of its charter, regulations or by-laws (or equivalent 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 of its Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the execution, delivery and or performance of the this Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with Agreement nor the consummation of the transactions contemplated herein and in offering of the Registration Statement Securities (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Prospectus or the General Disclosure Package under the caption “Use of Proceeds”) and compliance by ” or the Company use of proceeds from the Concurrent Registered Direct Offering), will conflict with, violate, constitute a breach of or a default, nor does there exist any condition that, with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or bothotherwise will conflict with, conflict with or violate, constitute a breach of, of or a default or a Debt Repayment Triggering Event (as defined below) under, or result in the creation or imposition of a Lien on any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries pursuant toSubsidiaries, the Agreements and Instruments imposition of any penalty or a Debt Repayment Triggering Event under or pursuant to (i) the Charter Documents, (ii) any Applicable Agreement, (iii) any Applicable Law or (iv) any order, writ, judgment, injunction, decree, determination or award binding upon or affecting the Company (except with respect to clauses (ii), (iii) and (iv) above, for such conflictsviolations, breaches, defaults defaults, Debt Repayment Triggering Events, Liens or Repayment Events or liens, charges or encumbrances thatimpositions that would not, singly or in the aggregate, would not aggregate result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, regulations Effect or by-laws (or equivalent documents) of prevent the Company or any of from fulfilling its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assets, properties or operationsobligations hereunder). As used herein, a “Debt Repayment Triggering Event” means any event or condition which gives that gives, or with the giving of notice or lapse of time would give, the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiariesthe Subsidiaries or any of their respective properties.

Absence of Defaults and Conflicts. Neither the The Company nor any of its Subsidiaries is not in --------------------------------- violation of its charter, regulations or by-laws Organizational Documents (or equivalent documentsas 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 of its Subsidiaries is subject (collectively, “"Agreements and Instruments”) "), except for such defaults under the Agreements and Instruments that would not -------------------------- result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture 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 consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments this Agreement have been duly authorized by all necessary action, corporate action or other, and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries pursuant to, the any Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, regulations or by-laws (or equivalent documents) Organizational Documents of the Company or any of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assets, properties or operations. As used herein, "Organizational Documents" means, ------------------------ in the case of a “corporation, its charter and by-laws; in the case of a limited or general partnership, (a) its partnership certificate, certificate of formation or similar organizational document and (b) its partnership agreement; in the case of a limited liability company, (c) its articles of organization, certificate of formation or similar organizational document and (d) its operating agreement, limited liability company agreement, membership agreement or other similar agreement; in the case of a trust, its trust agreement; and, in the case of any other entity, the organizational documents of such entity; and a "Repayment Event” " means --------------- any 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 of its Subsidiariesobligor.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its chartercharter or bylaws or other organizational documents, regulations or by-laws (or equivalent documents) as the case may be, or in material default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease 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 or their properties may be bound, bound or to which any of the property or assets of the Company or any of its Subsidiaries subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults under in which the Agreements and Instruments that would not violation or default might result in a Material Adverse Effectmaterial adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise; and the execution, delivery and performance of this Agreement, the Indenture 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 consummation of the transactions contemplated herein and the transactions described in the Registration Statement (including the issuance and sale each of the Securities most recent Pre-Pricing Prospectus and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) HCR ManorCare Facilities Acquisition” and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and do will not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries subsidiaries pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Agreements and Instruments (except for such conflicts, breaches, defaults Company or Repayment Events any of its subsidiaries is a party or liens, charges by which it or encumbrances that, singly any of them may be bound or in to which any of the aggregate, would not result in a Material Adverse Effect)property or assets of the Company or any of its subsidiaries is subject, nor will such action result in any violation of the provisions of the charter, regulations charter or by-laws (or equivalent documents) bylaws of the Company or any of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ administrative regulation or decree of any government, government instrumentality administrative or court, domestic court order or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiariesdecree.

Absence of Defaults and Conflicts. Neither Except as disclosed in the Offering Memorandum, neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter, regulations or by-laws (or equivalent documents) 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 of its Subsidiaries is subsidiaries may be subject (collectively, “"Agreements and Instruments”) "), except for such violations or defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture Indenture, the Registration Rights Agreement 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 Offering Memorandum (including including, without limitation, the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus Offering Memorandum under the caption “"Use of Proceeds”") and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or 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 of its Subsidiaries subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that, singly singularly or in the aggregate, would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, regulations charter or by-laws (or equivalent documents) of the Company or any of its Subsidiaries subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries subsidiaries or any of their assets, properties assets or operationsproperties. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiariessubsidiaries.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its chartercharter or bylaws or other organizational documents, regulations or by-laws (or equivalent documents) as the case may be, or in material default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease 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 or their properties may be bound, bound or to which any of the property or assets of the Company or any of its Subsidiaries subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults under in which the Agreements and Instruments that would not violation or default might result in a Material Adverse Effectmaterial adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise; and the execution, delivery and performance of this Agreement, the Indenture 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 consummation of the transactions contemplated herein and the transactions described in the Registration Statement (including the issuance and sale each of the Securities most recent Pre-Pricing Prospectus and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) The Acquisition” and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments thereunder have been duly authorized by all necessary corporate action and do will not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries subsidiaries pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Agreements and Instruments (except for such conflicts, breaches, defaults Company or Repayment Events any of its subsidiaries is a party or liens, charges by which it or encumbrances that, singly any of them may be bound or in to which any of the aggregate, would not result in a Material Adverse Effect)property or assets of the Company or any of its subsidiaries is subject, nor will such action result in any violation of the provisions of the charter, regulations charter or by-laws (or equivalent documents) bylaws of the Company or any of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ administrative regulation or decree of any government, government instrumentality administrative or court, domestic court order or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiariesdecree.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries the Bank is in violation of its charterGoverning Documents, regulations or by-laws (or equivalent documents) or and neither the Company nor the Bank is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries the Bank is a party or by which it the Company or any of them may be the Bank is bound, or to which any of the property or assets of the Company or any of its Subsidiaries the Bank is subject (collectively, “Agreements and Instruments”) ), or in violation of any applicable law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority having jurisdiction over the Company or the Bank or any of their respective assets, properties or operations, except for such violations or defaults under the Agreements and Instruments that would not not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, Agreement and the Indenture and the Securities and 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 therein, and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries the Bank pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances thatthat would not, singly or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect), ; nor will such action result in any violation of the provisions of the charter, regulations or by-laws (or equivalent documents) Governing Documents of the Company or the Bank; nor will such action 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 of its Subsidiaries the Bank or any of their respective assets, properties or operationsoperations (except for such violations that would not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiariesthe Bank.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter, regulations charter or by-laws (or equivalent 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 subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any of its Subsidiaries subsidiary is subject (collectively, “Agreements and Instruments”) ), except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture 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 consummation of the transactions contemplated herein and in the Registration Statement (including Statement, the issuance and sale of the Securities Shares by the Company and the use of the proceeds from the sale of the Securities Shares sold by the Company as described in the Time of Sale Prospectus under the caption “Use of Proceeds”) , and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, regulations charter or by-laws (or equivalent documents) bylaws of the Company or any of its Subsidiaries 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 of its Subsidiaries subsidiary or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiariessubsidiary.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries the Subsidiary is (i) in violation of its charter, regulations certificate of incorporation or by-laws or (or equivalent documentsii) 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 of its Subsidiaries the Subsidiary is subject (collectively, “Agreements and Instruments”) except except, in the case of clause (ii), for such any defaults under which, singularly or in the Agreements and Instruments that aggregate, would not result in a Material Adverse EffectChange; and the execution, delivery and performance of this Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities by, and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder under, this Agreement and under in the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and Time of Sale Prospectus do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property of the properties or assets of the Company or any of its Subsidiaries the Subsidiary pursuant to, to the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults, liens, charges or encumbrances thatwhich, singly singularly or in the aggregate, would not result in a Material Adverse Effect)Change, nor will such action result in any violation of the provisions of the charter, regulations certificate of incorporation or by-laws (or equivalent documents) of the Company or any of its Subsidiaries the 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 of its Subsidiaries the Subsidiary or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiariesthe Subsidiary.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its chartercharter or bylaws or other organizational documents, regulations or by-laws (or equivalent documents) as the case may be, or in material default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease 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 or their properties may be bound, bound or to which any of the property or assets of the Company or any of its Subsidiaries subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults under in which the Agreements and Instruments that would not violation or default might result in a Material Adverse Effectmaterial adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise; and the execution, delivery and performance of this Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the consummation of the transactions contemplated herein and therein, and the transactions described in the Registration Statement (including the issuance and sale each of the Securities most recent Pre-Pricing Prospectus and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) The Acquisition” and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments thereunder have been duly authorized by all necessary corporate action and do will not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries subsidiaries pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Agreements and Instruments (except for such conflicts, breaches, defaults Company or Repayment Events any of its subsidiaries is a party or liens, charges by which it or encumbrances that, singly any of them may be bound or in to which any of the aggregate, would not result in a Material Adverse Effect)property or assets of the Company or any of its subsidiaries is subject, nor will such action result in any violation of the provisions of the charter, regulations charter or by-laws (or equivalent documents) bylaws of the Company or any of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ administrative regulation or decree of any government, government instrumentality administrative or court, domestic court order or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiariesdecree.

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

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries (i) is in violation of its charter, regulations declaration of trust or by-laws bylaws (or equivalent similar organizational documents), (ii) is in default, and no event has occurred that, with notice or in default lapse of time or both, would constitute such a default, in the due performance or observance of any obligation, agreementterm, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, notelicense or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject or (iii) is in violation of any statute or any order, lease rule or regulation of any court or governmental agency or body having jurisdiction over it or its property or assets or has failed to obtain any license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business, except in the case of clauses (ii) and (iii), to the extent any such conflict, breach, violation or default could not, in the aggregate, reasonably be expected to have a Material Adverse Change. The execution, delivery and performance of this Agreement by the Company and the Operating Partnership, the consummation of the transactions contemplated hereby and the application of the proceeds from the sale of the Securities as described under “Use of Proceeds” in the Prospectus will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, impose any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which it the Company or any of them may be bound, its Subsidiaries is bound or to which any of the property or assets of the Company or any of its Subsidiaries is subject subject; (collectively, “Agreements and Instruments”ii) except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company 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, singly or in the aggregate, would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, regulations declaration of trust or by-laws bylaws (or equivalent similar organizational documents) of the Company or any of its Subsidiaries Subsidiaries; or (iii) result in any violation of any statute or any applicable law, statute, rule, regulation, judgment, order, writ rule or decree regulation of any government, government instrumentality court or court, domestic governmental agency or foreign, body having jurisdiction over the Company or any of its Subsidiaries or any of their properties or assets, properties except, in the case of clauses (i) and (iii), as would not, individually or operations. As used hereinin the aggregate, be reasonably expected to have a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its SubsidiariesMaterial Adverse Change.

Absence of Defaults and Conflicts. Neither None of the Company Combining Companies nor any of its Subsidiaries their respective subsidiaries is (1) in violation of its charter, regulations or by-laws (or equivalent documents) other organizational instrument 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 any Combining 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 any Combining Company or any of its Subsidiaries subsidiaries is subject (collectively, “"Agreements and Instruments”") except for such defaults under that, individually or in the Agreements and Instruments that aggregate, would not result in a Material Adverse Effect or (2) in violation of any law, ordinance, governmental rule, regulation or court decree to which it or its property or assets may be subject or has failed to obtain any material license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or assets or to the conduct of its business, except for such violations or failures that, individually or in the aggregate, would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture International Purchase Agreement and the Securities Combination Transaction Agreements and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the consummation of the transactions contemplated herein in this Agreement, the International Purchase Agreement and the Combination Transaction Agreements and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus Prospectuses under the caption “"Use of Proceeds”") and compliance by the each Combining Company with its obligations hereunder and under this Agreement, the Indenture International Purchase Agreement and the Securities and such other agreements or instruments Combination Transaction Agreements have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the any Combining Company or any of its Subsidiaries subsidiaries pursuant to, to the Agreements and Instruments (except for such conflicts, breaches, defaults or defaults, Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, that would not result in a Material Adverse Effect), nor will such action result in any violation of (A) the provisions of the charter, regulations or by-laws (or equivalent documents) other organizational instrument of the any Combining Company or any of its Subsidiaries subsidiaries or (B) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the any Combining Company or any of its Subsidiaries subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiaries.,

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its chartercharter or bylaws or other organizational documents, regulations or by-laws (or equivalent documents) as the case may be, or in material default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease 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 or their properties may be bound, bound or to which any of the property or assets of the Company or any of its Subsidiaries subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults under in which the Agreements and Instruments that would not violation or default might result in a Material Adverse Effectmaterial adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise; and the execution, delivery and performance of this Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the consummation of the transactions contemplated herein and therein, and the transactions described in the Registration Statement (including the issuance and sale each of the Securities most recent Pre-Pricing Prospectus and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) HCR ManorCare Facilities Acquisition” and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments thereunder have been duly authorized by all necessary corporate action and do will not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries subsidiaries pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Agreements and Instruments (except for such conflicts, breaches, defaults Company or Repayment Events any of its subsidiaries is a party or liens, charges by which it or encumbrances that, singly any of them may be bound or in to which any of the aggregate, would not result in a Material Adverse Effect)property or assets of the Company or any of its subsidiaries is subject, nor will such action result in any violation of the provisions of the charter, regulations charter or by-laws (or equivalent documents) bylaws of the Company or any of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ administrative regulation or decree of any government, government instrumentality administrative or court, domestic court order or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiariesdecree.

Absence of Defaults and Conflicts. Neither None of the Company nor or any of its Significant Subsidiaries is (i) in violation of its charterOrganizational Documents, regulations (ii) in default, and no event has occurred which, with notice or by-laws (lapse of time or equivalent documents) or in default both, would constitute such a default, in the due performance or observance of any term, obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, notelease or other agreement or instrument to which it is a party or by which it is bound or which any of its properties or assets may be subject or (iii) in violation of any law, ordinance, governmental rule, regulation or court decree to which it or its property or assets may be subject, except, with respect to (ii) or (iii), for any such violations or defaults that would not be reasonably likely, singly or in the aggregate, to have a Material Adverse Effect. The execution and delivery of the Transaction Documents by the Company, the consummation of the transactions contemplated hereby and thereby, the application of the proceeds from the sale of the Securities as described under “Use of Proceeds” in the General Disclosure Package and the Prospectus will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, impose any Lien, charge or encumbrance upon any property or assets of the Company and its Significant Subsidiaries under, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license, lease or other agreement or instrument to which the Company or any of its Significant Subsidiaries is a party or by which it the Company or any of them may be bound, its Significant Subsidiaries is bound or to which any of the property or assets of the Company or any of its Significant Subsidiaries is subject subject; (collectively, “Agreements and Instruments”ii) except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company 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, singly or in the aggregate, would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, regulations or by-laws (or equivalent documents) Organizational Documents of the Company or any of its Subsidiaries Significant Subsidiaries; or (iii) result in any violation of any statute or any applicable law, statute, rule, regulation, judgment, order, writ decree, rule or decree regulation of any government, government instrumentality court or court, domestic governmental agency or foreign, body having jurisdiction over the Company or any of its Significant Subsidiaries or any of their properties or assets, properties except with respect to clauses (i) and (iii), conflicts, breaches, violations or operations. As used hereindefaults that would not, individually or in the aggregate, reasonably be expected to have a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its SubsidiariesMaterial Adverse Effect.

Absence of Defaults and Conflicts. Neither Each of the Company nor any of its Subsidiaries is and the Lender are not in violation of its charter, regulations or by-laws (or equivalent documents) their respective constating documents or in default in any material respect in the performance 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, licence or other agreement or instrument to which any of the Company or any of its Subsidiaries and the Lender is a party or by which it or any either of them may be bound, or to which any either of the property or assets of the Company or any of its Subsidiaries the Lender is subject (collectively, “Agreements and Instruments”) except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the ). The execution, delivery and performance of this Agreement, the Indenture 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 consummation of the transactions contemplated herein and in the Registration Statement Offering Documents (including the issuance authorization, issuance, sale and sale delivery of the Securities Debentures and the issuance of the Underlying Shares on the conversion of Debentures, and the use of the proceeds from the sale of the Securities Debentures as described in the Prospectus Offering Documents under the caption heading “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments hereunder, have been duly authorized by all necessary corporate action action, and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance Lien upon any property or assets of the Company or any of its Subsidiaries the Lender pursuant to, to the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, would not result in a Material Adverse Effect)Instruments, nor will such action result in any violation of or conflict with, the provisions of the charter, regulations or by-laws (or equivalent documents) constating documents of the Company or any of its Subsidiaries the Lender or any existing applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, Governmental Authority having jurisdiction over the Company or any of its Subsidiaries the Lender or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiaries.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter, regulations or by-laws (or equivalent documents) Organizational Documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contractCompany Document, indenture, mortgage, deed except (solely in the case of trust, loan or credit agreement, note, lease or Company Documents 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 of its Subsidiaries is subject (collectively, “Agreements and than Subject Instruments”) except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, the Indenture 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 consummation of the transactions contemplated herein and in the Registration Statement Statement, the Disclosure Package and the Prospectus (including the issuance Pre-Closing Transactions and sale of the Securities and the use of the proceeds from the sale of the Securities as described in to be sold by the Prospectus under the caption “Use of Proceeds”Selling Shareholders) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and this Agreement 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 Lien upon any property or assets of the Company or any of its Subsidiaries subsidiaries pursuant to, any Company Documents or Shareholder Documents, except (solely in the Agreements case of Company Documents other than Subject Instruments, Shareholder Documents and Instruments (except Leases) for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, that would not result in a Material Adverse Effect, nor did, does or will any such action require the consent, waiver or approval of any landlord, lessor, or other owner of any real property, stores, buildings or other improvements occupied or used under lease or sublease by the Company or any of its subsidiaries (except for such consents, waivers and approvals as have been obtained and as are in full force and effect), nor did, does or will any such action result in any violation of the provisions of the charter, regulations or by-laws (or equivalent documents) Organizational Documents of the Company or any of its Subsidiaries subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries subsidiaries or any of their its assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiaries.

Absence of Defaults and Conflicts. Neither the Company nor any of --------------------------------- its Subsidiaries is (i)(a) in violation of its charter, regulations or by-laws or other organizational instruments or (b) in default, and no event has occurred which, with notice or equivalent documents) lapse of time or in default both, would constitute such a default, in the due performance or observance of any term, obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, bond, 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 of its Subsidiaries Subsidiary is subject (collectively, “"Agreements and Instruments”) "), except for such defaults under that, individually or in the Agreements and Instruments that aggregate, would not result in a Material Adverse Effect, or (ii) in violation in any material respect of any law, ordinance, governmental rule, regulation or court decree to which it or its property or assets may be subject or has failed to obtain any material license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or assets or to the conduct of its business, except for such violations or failures that, individually or in the aggregate, would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture 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 consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and Securities, the use of the proceeds from the sale of the Securities as described in the Prospectus and the German Listing Prospectus under the caption “"Use of Proceeds”" and the AUCS Transactions (as defined below)) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries Subsidiary pursuant to, to the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, that would not result in a Material Adverse Effect), nor will such action result in (i) any violation of the provisions of the charter, regulations charter or by-laws (or equivalent documents) other organizational instruments of the Company or any Subsidiary or (ii) 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 of its Subsidiaries Subsidiary or any of their assets, properties or operations, except for such violations that would not result in a Material Adverse Effect. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its SubsidiariesSubsidiary.

Absence of Defaults and Conflicts. Neither the The Company nor any of its Subsidiaries is not (i) in violation of its charter, regulations charter or by-laws or (or equivalent documentsii) 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 of its Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture issuance and sale of the Securities Securities, the issuance of the Warrant Shares upon due exercise of the Warrants in accordance with their terms 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 (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company 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, singly or in the aggregate, that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, regulations charter or by-laws (or equivalent documents) of the Company or any of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its SubsidiariesCompany.

Absence of Defaults and Conflicts. Neither Except as otherwise disclosed in the SEC Documents, the Company nor any of its Subsidiaries is not (i) in violation of its chartercertificate of incorporation, regulations or by-laws or similar incorporation or organizational documents or (ii) in violation or equivalent 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 of its Subsidiaries is subject (collectively, “Agreements and Instruments”) ), except in the case of clause (ii), for such violations and defaults under the Agreements and Instruments that would not result in a Material Adverse EffectEffect on the Company; and the execution, delivery and performance of this Agreement, the Indenture 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 consummation of the transactions contemplated herein in this Agreement and in the Registration Statement (including the issuance and sale each of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) other Transaction Documents, and compliance by the Company with its obligations hereunder under this Agreement and under each of the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and Transaction Documents, do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute result in a breach of any of the terms and provisions of, or constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company 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, singly or in the aggregate, would not result in a Material Adverse Effect)Instruments, nor will such action result in any violation of the provisions of the chartercertificate of incorporation, regulations or by-laws (or equivalent documents) similar organizational documents of the Company or any of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assets, properties or operations, except in each case (other than with respect to such certificate of incorporation, by-laws or similar organizational documents of the Company) for such conflicts, violations, breaches or defaults which would not reasonably be expected to result in a Material Adverse Effect on the Company. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness that is material to the operations or financial results of the Company (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its SubsidiariesCompany.

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

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter, regulations charter or by-laws (or equivalent 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 of its Subsidiaries subsidiary is subject (collectively, “"Agreements and Instruments”") except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, each Delayed Delivery Contract, if any, each applicable Indenture, Warrant Agreement and Deposit Agreement, the Indenture and the Offered 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 in the Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement therein (including the issuance and sale of the Offered Securities and the use of the proceeds from the sale of the Securities therefrom as described in the Prospectus under the caption “"Use of Proceeds”" and the issuance of any Underlying Securities) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, regulations charter or by-laws (or equivalent documents) of the Company or any of its Subsidiaries subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries subsidiaries or any of their assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiariessubsidiaries.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is (i) in violation of its declaration of trust, charter, regulations bylaws or by-laws other comparable governing document or (or equivalent documentsii) 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 assets, properties or assets operations of the Company or any of its Subsidiaries subsidiaries is subject (collectively, “Agreements and Instruments”), except, with respect to clause (ii) except above, for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the consummation of the transactions contemplated herein and in the Registration Statement hereby or thereby (including the issuance and sale of the Securities Notes and the use of the proceeds from the sale of the Securities Notes as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments thereunder have been duly authorized by all necessary corporate trust action and and, except as would not, singly or in the aggregate, have a Material Adverse Effect, do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Company or any of its Subsidiaries subsidiaries pursuant to, the any Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, would not result in a Material Adverse Effect)Instruments, nor will such action result in any violation of the provisions of the charter, regulations charter or by-laws (or equivalent documents) bylaws of the Company or any of its Subsidiaries subsidiaries or, except as would not, singly or in the aggregate, have a Material Adverse Effect, any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiariessubsidiaries.

Absence of Defaults and Conflicts. Neither the The Company nor any of its Subsidiaries is not in violation of the provisions of its charter, regulations charter or by-laws (or equivalent documents) or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which it or any of them may be bound, bound or to which any of the property or assets of the Company or any of its Subsidiaries is subject (collectively, “the "Company Agreements and Instruments”) "), except for such defaults under the Agreements and Instruments that would not result in a Company Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, the Indenture and the Securities each Funding 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 by the applicable Time of Sale Prospectus (collectively, the "Company Program Documents"), the consummation of the transactions contemplated herein and in by the Registration Statement applicable Time of Sale Prospectus (including the issuance and sale of a series of Notes by the Securities applicable Trust and the use of the proceeds from the sale of the Securities therefrom as described in the Prospectus under the caption “Use applicable Time of Proceeds”Sale Prospectus) and the compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments thereunder have been duly authorized by all necessary corporate action and do not and will notconflict with, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach ofbreach, violation, default, event or default condition that gives the holder of any note, debenture or Repayment Event other evidence of indebtedness (as defined belowor any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Company or any of its Subsidiaries pursuant to, the any Company Agreements and Instruments (except for Instruments, except, in each case, to the extent such conflictsconflict, breachesbreach, defaults violation, default, event, condition, lien, charge or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, encumbrance would not result in a Company Material Adverse Effect), nor will such action actions result in any violation of the provisions of the charter, regulations charter or by-laws (or equivalent documents) of the Company or any of its Subsidiaries or or, except to the extent such violation would not result in a Company Material Adverse Effect, any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assets, properties or operations. As used ; provided, however, that each such law, statute, rule, regulation, judgment, order, writ or decree is in writing; provided, further, that the Company does not make any representations, warranties or covenants with respect to any applicable insurance laws, regulations, rulings, policies and guidelines addressed in the memorandum of Company Counsel (as defined herein, a “Repayment Event” means any event or condition which gives the holder of any note, 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 received by the Agents pursuant to Section 7(b)(x) hereof and/or the opinion of Company or any of its SubsidiariesCounsel received by the Agents pursuant to Section 7(b)(xi) hereof.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries is in violation of its charter, regulations or by-laws (or equivalent 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 of its Subsidiaries is subject (collectively, “Agreements and Instruments”) except for such defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the each Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the each Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company 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, singly or in the aggregate, would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, regulations or by-laws (or equivalent documents) of the Company or any of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiaries. No event of default, and no default that, with notice and/or lapse of time, would constitute an event of default, in respect of the Existing Securities has occurred or is continuing.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries is in violation of its charter, regulations charter or by-laws (or equivalent documents) other constituting or organizational document or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which it the Company or any of them its Subsidiaries may be bound, or to which any of the property or assets of the Company or any of its Subsidiaries is subject (collectively, “Agreements and Instruments”) ), except for such defaults under the Agreements and Instruments that would not reasonably be expected to result in a Material Adverse EffectEffect and that would not affect the validity of the Shares; and the execution, execution and delivery and performance by the Company of this Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued consummation by the Company in connection with the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities by this Agreement, and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate action and terms hereof do not and will not, 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 of its Subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, regulations or by-laws (or equivalent documents) of the Company or any of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiaries.Adverse

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter, regulations or by-laws (or equivalent documents) 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 of its Subsidiaries subsidiary is subject (collectively, “Agreements and Instruments”) ), except for such violations or defaults under the Agreements and Instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with of this Agreement and the consummation by the Company of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and under the Indenture and the Securities and such other agreements or instruments this Agreement have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charterCertificate of Incorporation, regulations or byBy-laws (or equivalent documents) similar organizational documents of the Company or any of its Subsidiaries 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 of its Subsidiaries subsidiary or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiaries.

Absence of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries the Operating Partnership is in violation of its charter, regulations or by-laws (laws, agreement of limited liability company, agreement of limited partnership or equivalent documents) other organizational documents or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries the Operating Partnership is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any of its Subsidiaries the Operating Partnership is subject (collectivelysubject, “Agreements and Instruments”) except for any such defaults under the Agreements and Instruments violation or default that would not result in have a Material Adverse Effectmaterial adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and it subsidiaries considered as one enterprise or the Operating Partnership and its subsidiaries considered as one enterprise; and the execution, delivery and performance of this Agreement, Agreement and the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption “Use of Proceeds”) therein and compliance by the Company (with its respect to this Agreement only) and the Operating Partnership, each severally, with obligations hereunder and under the Indenture and the Securities and such other agreements or instruments thereunder have been duly authorized by all necessary corporate action and do not action, and will not, whether with or without the giving of notice or passage of time or both, not conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Operating Partnership pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or the Operating Partnership is a party or by which any of them may be bound, or to which any of the property or assets of the Operating Partnership or any of its Subsidiaries pursuant tosubsidiaries is subject, the Agreements and Instruments (except for any such conflicts, breaches, defaults violation or Repayment Events or liens, charges or encumbrances that, singly or in the aggregate, default that would not result in have a Material Adverse Effect)material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise or the Operating Partnership and its subsidiaries considered as one enterprise, nor will such action result in any violation of the provisions of the charter, regulations or by-laws (laws, agreement of limited liability company, agreement of limited partnership or equivalent documents) other organizational documents of the Company or any of its Subsidiaries the Operating Partnership or any applicable law, statuteadministrative regulation or administrative or court decree, ruleexcept for any such violation or default that would not have a material adverse effect on the condition, regulationfinancial or otherwise, judgmentor the earnings, order, writ business affairs or decree business prospects of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company and its subsidiaries considered as one enterprise or any of the Operating Partnership and its Subsidiaries or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiariessubsidiaries considered as one enterprise.