Common use of Absence of Defaults and Conflicts Clause in Contracts

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

Absence of Defaults and Conflicts. None of Neither the Transaction Entities, Company nor any of their its Material Subsidiaries (i) is in violation of its charter, by-laws, certificate memorandum of limited partnershipassociation or other organizational document, agreement of limited partnership as applicable, or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities Company or any of their its Material Subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities Company or any of their Subsidiaries Material Subsidiary is subject (collectively, “Agreements and Instruments”), except except, in each case other than with respect to the charter, by-laws, memorandum of association or other organizational document, as applicable, of the Company or any of its Material Subsidiaries, for such violations or defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The execution, delivery and performance of this Underwriting Agreement and the Indenture, and any other Operative Documents agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Registration Statement, the Disclosure Package and the Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement Statement, the Disclosure Package and the Prospectus (including the issuance and sale of the Shares and the Private Placement Shares Notes and the use of the proceeds from the sale of the Shares Notes as described in the General Disclosure Package and Prospectus under the caption “Use of Proceeds”” in the Prospectus relating to such Notes) and compliance by the Transaction Entities Company with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities Company or any Subsidiary 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 would not reasonably be expected to result, singly or in the aggregate, in a Material Adverse Effect). No nor will such action will result in any violation of (A) the provisions of the charter, by-laws, certificate memorandum of limited partnershipassociation or other organizational document, agreement of limited partnership or similar organizational document of any as applicable, of the Transaction Entities Company or any of their its Material 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 Transaction Entities Company (collectively, “Relevant Laws”) or any of their its Material Subsidiaries or any of their assets, properties or operationsoperations except, except in each case other than with respect to the case charter, by-laws, memorandum of clause (B) onlyassociation or other organizational document, as applicable, of the Company or any of its Material Subsidiaries, for any such violation conflicts, breaches, defaults, Repayment Events, liens, charges, encumbrances, or violations that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities Company or any of their its Material Subsidiaries.

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

Absence of Defaults and Conflicts. None Neither of the Transaction Entities, nor any of their Subsidiaries subsidiaries (iA) is in violation of its charter, by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document or (iiB) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any either of the Transaction Entities or any of their Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties or assets of the Transaction Entities or any of their Subsidiaries subsidiaries is subject (collectively, “Agreements and Instruments”), except for such defaults that would not reasonably be expected to resultthat, singly or in the aggregate, would not result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement and the other Operative Documents and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares Securities by the Operating Partnership and the Private Placement Shares issuance of the Guarantee by the Company and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and Prospectus under the caption “Use of Proceeds”) and compliance by the Transaction Entities with their obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Transaction Entities Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to resultnot, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (Ai) the provisions of the charter, by-laws, certificate of limited partnership, agreement of limited partnership Operating Partnership Agreement or similar organizational document of any either of the Transaction Entities or any of their Subsidiaries subsidiaries or (Bii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Transaction Entities or any of their Subsidiaries subsidiaries or any of their assets, properties or operations, except in the case of clause (Bii) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities or any of their Subsidiariessubsidiaries.

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

Absence of Defaults and Conflicts. None of the Transaction Entities, nor any of their Subsidiaries (i) The Trust is not in violation of its charter, by-laws, certificate of limited partnershiptrust, agreement of limited partnership if applicable, or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries Trust is a party or by which it or any of them may be bound, bound or to which any of the Properties or any other properties property or assets of the Transaction Entities or any of their Subsidiaries Trust is subject (collectively, “the "Trust Agreements and Instruments”"), except for such violations or defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Trust Material Adverse Effect. The ; and (1) the execution, delivery and performance of this Distribution Agreement, the Indenture, the Notes, each Funding Agreement, the Administration Agreement, the License Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the other Operative Documents Trust in connection with the transactions contemplated by the Prospectus, (2) the performance of the Trust Agreement (all agreements and instruments referenced in clauses (1) and (2) above are referred to herein as the "Program Documents"), (3) the consummation of the transactions contemplated herein and in the Registration Statement Prospectus (including the issuance and sale of the Shares and the Private Placement Shares Notes and the use of the proceeds from the sale of the Shares therefrom as described in the General Disclosure Package and Prospectus under the caption “Use of Proceeds”Prospectus) and (4) the compliance by the Transaction Entities Trust with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, and under the Program Documents do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach ofbreach, violation or default which (A) 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 Trust under, or (B) result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Transaction Entities or any Subsidiary Trust pursuant to, the any Trust Agreements and Instruments (except for such conflictsInstruments, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, in a Material Adverse Effect). No nor will such action will result in any violation of (A) the provisions of the charter, by-laws, Trust's certificate of limited partnershiptrust, agreement if applicable, the Trust Agreement and the Trust is not in default in the performance or observance of limited partnership or similar organizational document of any of the Transaction Entities or any of their 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 Transaction Entities Trust or any of their Subsidiaries or any of their its assets, properties or operations; provided that no representation or warranty is made with respect to the Funding Agreement(s) to the extent that the source of the funds used by the Trust to purchase such Funding Agreement renders such funds, except or any property or investment acquired with such funds, subject to governmental seizure or other penalty under the USA Patriot Act of 2001, as amended, or any other law, rule or regulation, relating to money laundering, terrorist financing or other illegal activities; provided further, that in the case of clause (A) of this paragraph (viii), this representation and warranty shall not extend to such repurchase, redemption or repayment that would not result in a Trust Material Adverse Effect and in the case of clause (B) onlyof this paragraph (viii), for this representation and warranty shall not extend to such lien, charges or encumbrances or any such violation violations or defaults that would not reasonably be expected to result in a Trust 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 Transaction Entities or any of their Subsidiaries.

Absence of Defaults and Conflicts. None of the Transaction Entities, nor any of their Subsidiaries (i) The Trust is not in violation of its charter, declaration of trust or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries it is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities or any of their Subsidiaries Trust is subject (collectively, “"Agreements and Instruments”), ") except for such violations or defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement, the Management Agreement, the Sub-Advisory Agreement, the Custodian Agreement, the Transfer Agent and Service Agreement and the other Operative Documents Auction Agency Agreement referred to in the Registration Statement (as used herein, the "Management Agreement," the "Sub-Advisory Agreement", the "Custodian Agreement," the "Transfer Agency Agreement," and the "Auction Agency Agreement" respectively) and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares AMPS and the use of the proceeds from the sale of the Shares AMPS as described in the General Disclosure Package and Prospectus under the caption “"Use of Proceeds”") and compliance by the Transaction Entities Trust with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities or any Subsidiary Trust pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, declaration of trust or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any laws of the Transaction Entities Trust or any of their 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 Transaction Entities Trust or any of their Subsidiaries or any of their its assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities or any of their SubsidiariesTrust.

Absence of Defaults and Conflicts. None of Neither the Transaction Entities, Company nor any of their Subsidiaries (i) its subsidiaries is in violation of its certificate of formation, limited partnership agreement, charter, by-laws, certificate of limited partnership, agreement of limited partnership laws or similar organizational document instruments (as the case may be) or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities Company or any of their Subsidiaries its subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities Company or any of their Subsidiaries its subsidiaries is subject (collectively, “Agreements and Instruments”), except for such defaults that as would not reasonably be expected to result, singly or in the aggregate, in aggregate have a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement Agreement, the Indenture, the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Final Prospectus and the other Operative Documents General Disclosure Package, and the consummation of the transactions contemplated herein hereby, thereby and in the Registration Statement Final Prospectus and the General Disclosure Package (including the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and Final Prospectus under the caption “Use of Proceeds”) and compliance by the Transaction Entities Company with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities Company or any Subsidiary of its subsidiaries pursuant to, any obligation, agreement, covenant or condition contained in (i) any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument evidencing or governing indebtedness for borrowed money, to which the Agreements and Instruments Company or any of its subsidiaries is a party or by which 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 or (ii) any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument other than those referred to in clause (i) above to which the Company or any of its subsidiaries is a party or by which 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 except (in the case of this clause (ii)) for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, aggregate result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the certificate of formation, limited partnership agreement, charter, by-laws, certificate of limited partnership, agreement of limited partnership laws or similar organizational document of any instruments (as the case may be) of the Transaction Entities Company or any of their Subsidiaries its subsidiaries or (B) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Transaction Entities Company or any of their Subsidiaries its subsidiaries or any of their assets, properties or operations, except for such exceptions as would not singly or in the case of clause (B) only, for any such violation that would not reasonably be expected to result in aggregate have a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities Company or any of their Subsidiariesits subsidiaries.

Absence of Defaults and Conflicts. None of the Transaction Entities, nor any of their Subsidiaries (i) The Trust is not in violation of its charter, agreement and declaration of trust or by-laws, certificate of limited partnershipeach as amended from time to time, agreement of limited partnership or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries it is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities or any of their Subsidiaries Trust is subject (collectively, “"Agreements and Instruments”), ") except for such violations or defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement, the Investment Advisory and Management Agreement, the Custody Agreement, the Stock Transfer Agency Agreement and the other Operative Documents Administration, Bookkeeping and Pricing Services Agreement referred to in the Registration Statement (as used herein, the "Investment Advisory Agreement," the "Custody Agreement," the "Transfer Agency Agreement" and the "Administration Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and Prospectus under the caption “"Use of Proceeds”") and compliance by the Transaction Entities Trust with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities or any Subsidiary Trust pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation (except for such violations that would not reasonably be expected to result in a Material Adverse Effect) of (A) the provisions of the charter, agreement and declaration of trust or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any laws of the Transaction Entities Trust, each as amended from time to time, or any of their 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 Transaction Entities Trust or any of their Subsidiaries or any of their its assets, properties or operations, except other than State securities or "blue sky" laws applicable in connection with the case purchase and distribution of clause (B) only, for any such violation that would not reasonably be expected the Securities by the Underwriters pursuant to result in a Material Adverse Effectthis Agreement. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities or any of their SubsidiariesTrust.

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

Absence of Defaults and Conflicts. None The Company is not in violation of the Transaction Entities, nor any its Amended and Restated Certificate of their Subsidiaries Incorporation (i“Charter”) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its charterorganizational documents (including, by-lawswithout limitation, certificate partnership and limited liability company agreements). Neither the Company nor any of limited partnership, agreement of limited partnership or similar organizational document or (ii) its Subsidiaries is in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities Company or any of their Subsidiaries Subsidiary is a party or by which it the Company or any of them Subsidiary may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities Company or any of their Subsidiaries Subsidiary is subject (collectively, “Agreements and Instruments”), except for such defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance by the Company of this Agreement and the other Operative Documents and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Transaction Entities Company with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, by-laws, certificate Charter or Bylaws of limited partnership, agreement of limited partnership the Company or similar the organizational document documents of any of the Transaction Entities or any of their Subsidiaries or Subsidiary (B) including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Transaction Entities Company or any of their Subsidiaries Subsidiary or any of their assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities Company or any of their SubsidiariesSubsidiary.

Absence of Defaults and Conflicts. None of the Transaction Entities, nor any of their Subsidiaries (i) The Fund is not in violation of its charter, charter or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries it is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities or any of their Subsidiaries Fund is subject (collectively, “Agreements and InstrumentsAGREEMENTS AND INSTRUMENTS”), ) except for such violations or defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement and any Purchase Agreements (collectively, the other Operative Documents “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated herein in the Offering Agreements and in the Registration Statement (including the issuance and sale of the Shares and to the Private Placement Shares Investors and the use of the proceeds from the sale of the Shares as described in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Transaction Entities Fund with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities or any Subsidiary Fund pursuant to, the Agreements and Instruments or the Investment Advisory Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Agreement and the Fund Accounting Servicing Agreement referred to in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “FUND AGREEMENTS”) (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, charter or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any laws of the Transaction Entities Fund or any of their 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 Transaction Entities Fund or any of their Subsidiaries or any of their its assets, properties or operations, operations (except in the case of clause (B) only, for any such violation violations that would not reasonably be expected to result in a Material Adverse Effect). As used herein, a “Repayment EventREPAYMENT EVENT” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities or any of their SubsidiariesFund.

Absence of Defaults and Conflicts. None of Neither the Transaction Entities, Adviser nor any of their Subsidiaries (i) the Administrator is in violation of its charter, by-laws, certificate of formation or certificate of limited partnership, as applicable, or limited liability company operating agreement of or limited partnership operating agreement, as applicable, or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities Adviser or any of their Subsidiaries the Administrator is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities Adviser or any of their Subsidiaries the Administrator is subject (collectively, the “Agreements and Instruments”), or in violation of any law, statute, rule, regulation, judgment, order or decree except for such violations or defaults that would not reasonably be expected to resultnot, singly individually or in the aggregate, reasonably be expected to result in a an Adviser Material Adverse Effect or an Administrator Material Adverse Effect. The , as applicable; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement and the other Operative Documents Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement and the Prospectus (including the issuance and sale of the Shares and the Private Placement Shares and the use of the proceeds from the sale of the Shares as described in the General Disclosure Package and Prospectus under the caption “Use of Proceeds”) and compliance by the Transaction Entities Adviser with their its obligations hereunder and thereunder have been duly authorized under the Investment Advisory Agreement and by all necessary corporate or limited partnership action, as applicable, the Administrator with its obligations hereunder and under the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Transaction Entities Adviser or the Administrator pursuant to any Subsidiary pursuant toInstrument, the Agreements and Instruments (as applicable, except for such conflicts, breaches, violations or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to resultnot, singly individually or in the aggregate, reasonably be expected to result in a an Adviser Material Adverse Effect or an Administrator Material Adverse Effect). No , as applicable, nor will such action will result in any violation of (A) the provisions of the charter, by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any limited liability company operating agreement, as applicable, of the Transaction Entities Adviser or Administrator, respectively; nor will such action result in any violation of their 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 Transaction Entities Adviser, the Administrator, or any of their Subsidiaries or any of their respective assets, properties or operationsoperations except for such violations that would not, except individually or in the case of clause (B) onlyaggregate, for any such violation that would not reasonably be expected to result in a an Adviser Material Adverse Effect or an Administrator 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 Transaction Entities or any of their Subsidiariesas applicable.

Absence of Defaults and Conflicts. None of the Transaction Entities, nor any of their Subsidiaries The Fund is not (i) is in violation of its charter, declaration of trust or by-laws, certificate of limited partnershipeach as amended from time to time, agreement of limited partnership or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries it is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities or any of their Subsidiaries Fund is subject (collectivelytogether with the declaration of trust and by-laws, the “Agreements and Instruments”), except except, with respect to (ii) only, for such defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement, the Investment Management Agreement dated as of [—], 2009, between the Fund and the Investment Adviser (the “Investment Management Agreement”), the Amended and Restated Master Custodian Agreement dated as of February 25, 2005, and effective as of [—], 2009, between the Fund and State Street Bank and Trust Company (the “Custodian Agreement”) and the Shareholder Transfer Agency and Service Agreement dated as of October 7, 2002, and effective as of [—], 2009, between the Fund and State Street Bank and Trust Company (the “Transfer Agency Agreement”) and any other Operative Documents material agreements and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and Prospectus under the caption “Use of Proceeds”) and compliance by the Transaction Entities Fund with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, declaration of trust or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any laws of the Transaction Entities Fund, each as amended from time to time, or any of their 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 Transaction Entities Fund or any of their Subsidiaries or any of their its assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities or any of their SubsidiariesFund.

Absence of Defaults and Conflicts. None of Neither the Transaction Entities, Company nor any of their Subsidiaries (i) its subsidiaries is in violation of its charter, charter or by-laws, certificate of limited partnership, agreement of limited partnership laws (or similar other organizational document documents) or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities Company or any of their Subsidiaries its subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other assets, properties or assets operations of the Transaction Entities Company or any of their Subsidiaries its subsidiaries is subject (collectively, “Agreements and Instruments”), except for such violations or defaults that would could not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The execution, delivery and performance of this Underwriting Agreement, the applicable Terms Agreement and the Indenture and any other Operative Documents agreement or instrument entered into or issued or to be entered into or issued by the Company and each Guarantor in connection with the transactions contemplated hereby or thereby or in the Registration Statement, the Prospectus and the Disclosure Package and the consummation of the transactions contemplated herein and in the Registration Statement Statement, the Prospectus and the Disclosure Package (including the issuance and sale of the Shares and the Private Placement Shares Underwritten Securities and the use of the proceeds from the sale of the Shares Underwritten Securities as described in the General Disclosure Package and Prospectus under the caption “Use of Proceeds”” in the Prospectus and the Disclosure Package relating to such Underwritten Securities) and compliance by the Transaction Entities Company and each Guarantor with their respective obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities Company or any Subsidiary of its subsidiaries pursuant to, the any Agreements and Instruments (except for such conflictsInstruments, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, in a Material Adverse Effect). No nor will such action will result in any violation of (A) the provisions of the charter, charter or by-laws, certificate of limited partnership, agreement of limited partnership laws (or similar other organizational document of any documents) of the Transaction Entities Company or any of their Subsidiaries its subsidiaries or (B) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Transaction Entities Company or any of its subsidiaries or any of their Subsidiaries or any of their respective assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities Company or any of their Subsidiariesits subsidiaries.

Absence of Defaults and Conflicts. None of the Transaction Entities, nor any of their Subsidiaries (i) The Fund is not in violation of its charter, articles of incorporation or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries it is a party or by which it or any of them may be is bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities or any of their Subsidiaries Fund is subject (collectively, “"Agreements and Instruments”), ") except for such violations or defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement, the Management Agreement, the Sub-Advisory Agreement, the Administration Agreement, the Custodian Agreement and the other Operative Documents Transfer Agent and Service Agreement referred to in the Registration Statement (as used herein, the "Management Agreement," the "Sub-Advisory Agreement, the "Administration Agreement," the "Custodian Agreement" and the "Transfer Agency Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and Prospectus under the caption “"Use of Proceeds”") and compliance by the Transaction Entities Fund with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, articles of incorporation or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any laws of the Transaction Entities Fund or any of their 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 Transaction Entities Fund or any of their Subsidiaries or any of their its assets, properties or operations, operations (except in the case of clause (B) only, for any such violation violations that would not reasonably be expected to result in a Material Adverse Effect). As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities or any of their SubsidiariesFund.

Absence of Defaults and Conflicts. None of Neither the Transaction Entities, Company nor any of their Subsidiaries (i) its subsidiaries is in violation of its charter, charter or by-laws, certificate of limited partnership, agreement of limited partnership laws or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities Company or any of their Subsidiaries its subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities Company or any of their Subsidiaries its subsidiaries is subject (collectively, “Agreements and Instruments”), ) except for such defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement Agreement, the Indenture and the Securities and the consummation of the transactions contemplated herein and in the Registration Statement and any other Operative Documents 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 consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Transaction Entities Company with their its obligations hereunder and thereunder thereunder, have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities Company or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to resultthat, singly or in the aggregate, would not result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, charter or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any laws of the Transaction Entities Company or any of their Subsidiaries its subsidiaries or (B) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Transaction Entities Company or any of their Subsidiaries its subsidiaries or any of their assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities Company or any of their Subsidiariesits subsidiaries.

Absence of Defaults and Conflicts. None of the Transaction Entities, nor any of their Subsidiaries The Fund is not (i) is in violation of its charter, declaration of trust or by-laws, certificate of limited partnershipeach as amended from time to time, agreement of limited partnership or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries it is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities or any of their Subsidiaries Fund is subject (collectivelytogether with the declaration of trust and by-laws, the “Agreements and Instruments”), except except, with respect to (ii) only, for such defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement, the Investment Advisory and Business Management Agreement dated as of [—], 2010, between the Fund and the Manager (the “Investment Management Agreement”), the [Sub-Advisory Agreement] dated as of [—], 2010, by and among the Fund, the Manager and the Commodity Subadvisor (the “Commodity Sub-Advisory Agreement”), the [Sub-Advisory Agreement] dated as of [—], 2010, by and among the Fund, the Manager and the Collateral Subadvisor (the “Collateral Sub-Advisory Agreement”), [include any other Operative Documents material agreements] and any other material agreements and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and Prospectus under the caption “Use of Proceeds”) and compliance by the Transaction Entities Fund with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflictsInstruments, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, in a Material Adverse Effect). No nor will such action will result in any violation of (A) the provisions of the charter, declaration of trust or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any laws of the Transaction Entities Fund, each as amended from time to time, or any of their 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 Transaction Entities Fund or any of their Subsidiaries or any of their its assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities or any of their SubsidiariesFund.

Absence of Defaults and Conflicts. None Neither of the Transaction Entities, nor any of their Subsidiaries subsidiaries is (iA) is in violation of its charter, by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document or document, (iiB) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any either of the Transaction Entities or any of their Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties or assets of the Transaction Entities or any of their Subsidiaries subsidiaries is subject (collectively, “Agreements and Instruments”), except for such defaults that would not reasonably be expected to resultnot, singly or in the aggregate, result in a Material Adverse Effect, or (C) in violation of any law, statute, rule, regulation, judgment, order, writ or decree of any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency having jurisdiction over the Company or any of its subsidiaries or any of their respective properties, assets or operations (each, a “Governmental Entity”), except for such violations that would not, singly or in the aggregate, result in a Material Adverse Effect. The execution, delivery and performance of this Agreement and the other Operative Documents and the consummation of the transactions contemplated herein and in the Registration Statement General Disclosure Package and the Prospectus (including the Formation Transactions, the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and Prospectus therein under the caption “Use of Proceeds”) and compliance by the Transaction Entities and the Predecessor Entities with their obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property properties or assets of the Transaction Entities Company or any Subsidiary subsidiary or Predecessor Entity (or subsidiary thereof) pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to resultnot, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (Ai) the provisions of the charter, by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any either of the Transaction Entities or any of their Subsidiaries subsidiaries or any Predecessor Entity (or any subsidiary thereof) or (Bii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Transaction Entities or any of their Subsidiaries or any of their assets, properties or operationsGovernmental Entity, except in the case of clause (Bii) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities or any of their Subsidiariessubsidiaries or Predecessor Entity (or subsidiary thereof).

Absence of Defaults and Conflicts. None Neither of the Transaction Entities, Issuers nor any of their Subsidiaries (i) is in violation of its charter, regulations or by-laws, certificate of limited partnership, agreement of limited partnership laws or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities Issuers or any of their Subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities Issuers or any of their Subsidiaries is subject (collectively, “Agreements and Instruments”), ) except for such defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement Agreement, the Indenture, the Guaranty and the Securities and any other Operative Documents and agreement or instrument entered into or issued or to be entered into or issued by the Issuers in connection with the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and Prospectus under the caption “Use of Proceeds”) and compliance by each of the Transaction Entities Issuers with their its obligations hereunder and thereunder under the Indenture, the Guaranty and the Securities and such other agreements or instruments have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities Issuers or any Subsidiary of their Subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to resultthat, singly or in the aggregate, would not result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, charter or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any laws of the Transaction Entities Issuers or any of their 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 Transaction Entities Issuers or any of their Subsidiaries or any of their assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities Issuers or any of their Subsidiaries.

Absence of Defaults and Conflicts. None The Company is not in violation of the Transaction Entitiesits Amended and Restated Certificate of Incorporation, nor any of their Subsidiaries as amended (i“Charter”) or its Second Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its charterorganizational documents (including, by-lawswithout limitation, certificate partnership and limited liability company agreements). Neither the Company nor any of limited partnership, agreement of limited partnership or similar organizational document or (ii) its Subsidiaries is in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities Company or any of their Subsidiaries Subsidiary is a party or by which it the Company or any of them Subsidiary may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities Company or any of their Subsidiaries Subsidiary is subject (collectively, “Agreements and Instruments”), except for such defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance by the Company of this Agreement and the other Operative Documents and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares and the use of the proceeds from the sale of the Shares as described in the General Disclosure Package Registration Statement and the Prospectus under the caption “Use of Proceeds”) and compliance by the Transaction Entities Company with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, by-laws, certificate Charter or Bylaws of limited partnership, agreement of limited partnership the Company or similar the organizational document documents of any of the Transaction Entities or any of their Subsidiaries or Subsidiary (B) including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Transaction Entities Company or any of their Subsidiaries Subsidiary or any of their assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities Company or any of their SubsidiariesSubsidiary.

Absence of Defaults and Conflicts. None The Company is not in violation of the Transaction Entitiesits Amended and Restated Certificate of Incorporation, nor any of their Subsidiaries as amended (i“Charter”) or its Second Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its charterorganizational documents (including, by-lawswithout limitation, certificate partnership and limited liability company agreements). Neither the Company nor any of limited partnership, agreement of limited partnership or similar organizational document or (ii) its Subsidiaries is in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities Company or any of their Subsidiaries Subsidiary is a party or by which it the Company or any of them Subsidiary may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities Company or any of their Subsidiaries Subsidiary is subject (collectively, “Agreements and Instruments”), except for such defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance by the Company of this Agreement and the other Operative Documents and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares and the use of the proceeds from the sale of the Shares as described in the General Disclosure Package Registration Statement and the Prospectus under the caption “Use of Proceeds”) and compliance by the Transaction Entities Company with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, by-laws, certificate Charter or Bylaws of limited partnership, agreement of limited partnership the Company or similar the organizational document documents of any of the Transaction Entities or any of their Subsidiaries or Subsidiary (B) including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Transaction Entities Company or any of their Subsidiaries Subsidiary or any of their assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities Company or any of their SubsidiariesSubsidiary.

Absence of Defaults and Conflicts. None of the Transaction Entities, nor any of their Subsidiaries The Fund is not (i) is in violation of its charter, declaration of trust or by-laws, certificate of limited partnershipeach as amended from time to time, agreement of limited partnership or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries it is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities or any of their Subsidiaries Fund is subject (collectivelytogether with the declaration of trust and by-laws, the “Agreements and Instruments”), except except, with respect to (ii) only, for such defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement, the Investment Management Agreement dated as of [•], 2009 between the Fund and the Investment Adviser (the “Investment Management Agreement”), the Amended and Restated Master Custodian Agreement dated as of February 25, 2005 and effective as of [•], 2009, between the Fund and State Street Bank and Trust Company (the “Custodian Agreement”) and the Shareholder Transfer Agency and Service Agreement dated as of October 7, 2002 and effective as of [•], 2009, between the Fund and State Street Bank and Trust Company (the “Transfer Agency Agreement”) and any other Operative Documents material agreements and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and Prospectus under the caption “Use of Proceeds”) and compliance by the Transaction Entities Fund with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, declaration of trust or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any laws of the Transaction Entities Fund, each as amended from time to time, or any of their 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 Transaction Entities Fund or any of their Subsidiaries or any of their its assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities or any of their SubsidiariesFund.

Absence of Defaults and Conflicts. None of Neither the Transaction Entities, Company nor any of their Subsidiaries (i) its subsidiaries is in violation of its charter, charter or by-laws, certificate of limited partnership, agreement of limited partnership laws or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities Company or any of their Subsidiaries its subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities Company or any of their Subsidiaries its subsidiaries is subject (collectively, “Agreements and Instruments”), ) except for such defaults that would not reasonably be expected to result, singly or in the aggregate, in have a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement Agreement, the Indenture, the Securities and the other Operative Documents Capped Call Confirmations 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 Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) ,” and the issuance of shares of Common Stock upon conversion of the Securities), and compliance by the Transaction Entities Company with their its obligations hereunder and thereunder under the Indenture, the Securities and the Capped Call Confirmations have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities Company or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, charter or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any laws of the Transaction Entities Company or any of their Subsidiaries its subsidiaries or (B) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Transaction Entities Company or any of its subsidiaries or any of their Subsidiaries or any of their material assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities Company or any of their Subsidiariesits subsidiaries.

Absence of Defaults and Conflicts. None The Company is not in violation of the Transaction Entities, nor any its Amended and Restated Certificate of their Subsidiaries Incorporation (i“Charter”) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its charterorganizational documents (including, by-lawswithout limitation, certificate partnership and limited liability company agreements). Neither the Company nor any of limited partnership, agreement of limited partnership or similar organizational document or (ii) its Subsidiaries is in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities Company or any of their Subsidiaries Subsidiary is a party or by which it the Company or any of them Subsidiary may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities Company or any of their Subsidiaries Subsidiary is subject (collectively, “Agreements and Instruments”), except for such defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance by the Company of this Agreement and the other Operative Documents and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares and the use of the proceeds from the sale of the Shares as described in the General Disclosure Package Registration Statement and the Prospectus under the caption “Use of Proceeds”) and compliance by the Transaction Entities Company with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, by-laws, certificate Charter or Bylaws of limited partnership, agreement of limited partnership the Company or similar the organizational document documents of any of the Transaction Entities or any of their Subsidiaries or Subsidiary (B) including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Transaction Entities Company or any of their Subsidiaries Subsidiary or any of their assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities Company or any of their SubsidiariesSubsidiary.

Absence of Defaults and Conflicts. None of the Transaction Entities, nor any of their Subsidiaries (i) The Trust is not in violation of its charter, Charter or by-laws, certificate of limited partnershipeach as amended from time to time, agreement of limited partnership or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries it is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities or any of their Subsidiaries Trust is subject (collectively, “"Agreements and Instruments”), ") except for such violations or defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement, the Investment Advisory and Management Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Administration, Bookkeeping and Pricing Services Agreement and the other Operative Documents Auction Agency Agreement referred to in the Registration Statement (as used herein, the "Investment Advisory Agreement," the "Custody Agreement," the "Transfer Agency Agreement," the "Administration Agreement" and the "Auction Agency Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares AMPS and the use of the proceeds from the sale of the Shares AMPS as described in the General Disclosure Package and Prospectus under the caption “"Use of Proceeds”") and compliance by the Transaction Entities Trust with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities or any Subsidiary Trust pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation (except for such violations that would not reasonably be expected to result in a Material Adverse Effect) of (A) the provisions of the charter, agreement and declaration of trust or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any laws of the Transaction Entities Trust, each as amended from time to time, or any of their 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 Transaction Entities Trust or any of their Subsidiaries or any of their its assets, properties or operations, except other than State securities or "blue sky" laws applicable in connection with the case purchase and distribution of clause (B) only, for any such violation that would not reasonably be expected the AMPS by the Underwriter pursuant to result in a Material Adverse Effectthis Agreement. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities or any of their SubsidiariesTrust.

Absence of Defaults and Conflicts. None of Neither the Transaction Entities, Company nor any of their Subsidiaries its subsidiaries is (i) is in violation of its charterOrganizational Documents, by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document or (ii) is in violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations or (iii) in breach or default (or with or without the giving of notice or the passage of time or both, would be in breach or default) in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties or assets of the Transaction Entities or any of their Subsidiaries is subject (collectively, “Agreements and Instruments”)Company Document, except in the case of clauses (ii) or (iii) for such violations, breaches or defaults that would not reasonably be expected to resultnot, singly individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. The execution, delivery and performance of this Agreement by the Company and the other Operative Guarantors of the Transaction Documents and the consummation of the transactions contemplated herein therein and in the Registration Statement Preliminary Offering Memorandum, the General Disclosure Package and the Offering Memorandum (including the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package Preliminary Offering Memorandum and Prospectus the Offering Memorandum under the caption “Use of Proceeds”) and compliance by the Transaction Entities Company and the Guarantors with their obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, and under the Transaction Documents do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default 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 Transaction Entities Company or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (any Company Documents except for any such conflictsconflict, breachesbreach, defaults default, Termination Event, Repayment Event, or Repayment Events or liens, charges or encumbrances Lien that would not reasonably be expected to resultnot, singly individually or in the aggregate, in reasonably be expected to have a Material Adverse Effect)Effect or as would not materially adversely affect the ability of the Company and the Guarantors to consummate the transactions contemplated herein. No such action Such actions will not result in any violation of (Ai) the provisions of the charter, by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any Organizational Documents of the Transaction Entities Company or any of their Subsidiaries its subsidiaries or (Bii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Transaction Entities Company or any of their Subsidiaries its subsidiaries or any of its or their respective assets, properties or operations, operations except in the case of clause (Bii) onlyas would not, for any such violation that would not individually or in the aggregate, reasonably be expected to result in have a Material Adverse Effect. As used Effect or as would not materially adversely affect the ability of the Company and the Guarantors to consummate the transactions contemplated herein, a “Repayment Event” means any event or condition which gives the holder of any note, 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 Transaction Entities or any of their Subsidiaries.

Absence of Defaults and Conflicts. None Neither of the Transaction Entities, nor any of their Subsidiaries subsidiaries (iA) is in violation of its charter, by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document or (iiB) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any either of the Transaction Entities or any of their Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties or assets of the Transaction Entities or any of their Subsidiaries subsidiaries is subject (collectively, “Agreements and Instruments”), except for such defaults that would not reasonably be expected to resultthat, singly or in the aggregate, would not result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement and the other Operative Documents and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and Prospectus under the caption “Use of Proceeds”) and compliance by the Transaction Entities with their obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Transaction Entities Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to resultnot, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (Ai) the provisions of the charter, by-laws, certificate of limited partnership, agreement of limited partnership Operating Partnership Agreement or similar organizational document of any either of the Transaction Entities or any of their Subsidiaries subsidiaries or (Bii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Transaction Entities or any of their Subsidiaries subsidiaries or any of their assets, properties or operations, except in the case of clause (Bii) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities or any of their Subsidiariessubsidiaries.

Absence of Defaults and Conflicts. None of the Transaction Entities, nor any of their Subsidiaries The Fund is not (i) is in violation of its charter, declaration of trust or by-laws, certificate of limited partnershipeach as amended from time to time, agreement of limited partnership or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries it is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities or any of their Subsidiaries Fund is subject (collectivelytogether with the declaration of trust and by-laws, the “Agreements and Instruments”), except except, with respect to (ii) only, for such defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement, the Investment Management Agreement dated as of [—], 2009 between the Fund and the Investment Adviser (the “Investment Management Agreement”), the Amended and Restated Master Custodian Agreement dated as of February 25, 2005 and effective as of [—], 2009, between the Fund and State Street Bank and Trust Company (the “Custodian Agreement”) and the Shareholder Transfer Agency and Service Agreement dated as of October 7, 2002 and effective as of [—], 2009, between the Fund and State Street Bank and Trust Company (the “Transfer Agency Agreement”) and any other Operative Documents material agreements and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and Prospectus under the caption “Use of Proceeds”) and compliance by the Transaction Entities Fund with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, declaration of trust or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any laws of the Transaction Entities Fund, each as amended from time to time, or any of their 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 Transaction Entities Fund or any of their Subsidiaries or any of their its assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities or any of their SubsidiariesFund.

Absence of Defaults and Conflicts. None Neither of the Transaction Entities, nor any of their Subsidiaries subsidiaries (iA) is in violation of its charter, by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document or (iiB) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any either of the Transaction Entities or any of their Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties or assets of the Transaction Entities or any of their Subsidiaries subsidiaries is subject (collectively, “Agreements and Instruments”), except for such defaults that would not reasonably be expected to resultthat, singly or in the aggregate, would not result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement and the other Operative Documents and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and Prospectus under the caption “Use of Proceeds”) and compliance by the Transaction Entities with their obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Transaction Entities Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to resultnot, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (Ai) the provisions of the chartercharter (including the Articles Supplementary), by-laws, certificate of limited partnership, agreement of limited partnership Operating Partnership Agreement or similar organizational document of any either of the Transaction Entities or any of their Subsidiaries subsidiaries or (Bii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Transaction Entities or any of their Subsidiaries subsidiaries or any of their assets, properties or operations, except in the case of clause (Bii) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities or any of their Subsidiariessubsidiaries.

Absence of Defaults and Conflicts. None of the Transaction Entities, nor any of their Subsidiaries Such Trust is not (ix) is in violation of its charter, by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document Trust Agreement or (iiy) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries such Trust is a party or by which it or any of them may be bound, bound or to which any of the Properties or any other properties property or assets of the Transaction Entities or any of their Subsidiaries such Trust is subject (collectively, as to each Trust, the “Trust Agreements and Instruments”), except for such defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Trust Material Adverse Effect. The (A) execution, delivery and performance of this Agreement, the relevant Indenture, the relevant Notes and any other agreement or instrument entered into or issued or to be entered into or issued by such Trust in connection with the transactions contemplated by the Time of Sale Prospectus, (B) performance of the relevant Trust Agreement (all agreements and instruments referenced in Section 3(b)(iv)(A) hereof and this Section 3(b)(iv)(B) are referred to herein, as to each Trust, as the other Operative Documents and the “Trust Program Documents”), (C) consummation of the transactions contemplated herein and in the Registration Statement Time of Sale Prospectus (including the issuance and sale of the Shares and the Private Placement Shares relevant Notes and the use of the proceeds from the sale of the Shares therefrom as described in the General Disclosure Package Time of Sale Prospectus) and Prospectus (D) compliance by such Trust with its obligations under the caption “Use of Proceeds”) and compliance by the Transaction Entities with their obligations hereunder and thereunder Trust Program Documents have been or will timely be duly authorized by all necessary corporate or limited partnership action, as applicable, action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach ofbreach, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Transaction Entities or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, in a Material Adverse Effect). No such action will result in any violation of (A) the provisions of the charter, by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any of the Transaction Entities or any of their 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 Transaction Entities or any of their Subsidiaries or any of their assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by such Trust under, or, except as contemplated by the Transaction Entities Trust Program Documents, result in the creation or imposition of any lien, charge or encumbrance upon any assets, properties or operations of such Trust pursuant to, any Trust Agreements and Instruments, nor will such actions result in any violation of the relevant Trust Agreement or, except to the extent that any such violation would not result in a Trust Material Adverse Effect, any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over such Trust or any of their Subsidiariesits assets, properties or operations.

Absence of Defaults and Conflicts. None of Neither the Transaction Entities, Company nor any of their the Subsidiaries (i) is in violation of its charter, by-lawslaws or other organizational documents. Further, certificate neither the Company nor any of limited partnership, agreement of limited partnership or similar organizational document or (ii) the Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of the Transaction Entities or any of their Subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities Company or any of their the Subsidiaries is subject (collectively, “Agreements and Instruments”), ) except for such defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement, the Indenture (including the Tenth Supplemental Indenture), the Securities, the Investment Advisory Agreement, the Administration Agreement and the other Operative Documents DTC Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Transaction Entities Company with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Transaction Entities Company or any Subsidiary of the Subsidiaries pursuant to, the Agreements and Instruments (Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, by-laws, certificate laws or other organizational documents of limited partnership, agreement of limited partnership the Company or similar organizational document of any of the Transaction Entities or any of their 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 Transaction Entities Company or any of their the Subsidiaries or any of their assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities Company or any of their the Subsidiaries.

Absence of Defaults and Conflicts. None of the Transaction Entities, nor any of their Subsidiaries The Company is not (iA) is in violation of its charter, by-laws, certificate of limited partnership, agreement of limited partnership laws or similar organizational document or documents, (iiB) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries Company is a party or by which it or any of them may be bound, bound or to which any of the Properties or any other properties or assets of the Transaction Entities or any of their Subsidiaries Company is subject (collectively, “Agreements and Instruments”), except for such defaults that would not reasonably be expected to resultnot, singly or in the aggregate, result in a Material Adverse Effect, or (C) in violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency having jurisdiction over the THL Entities or any of their respective properties, assets or operations (each, a “Governmental Entity”), except for such violations that would not, singly or in the aggregate, result in a Material Adverse Effect. The execution, delivery and performance of this Agreement and the other Operative Documents Company Agreements and the consummation of the transactions contemplated herein therein and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Shares and the Private Placement Shares IPO Securities and the use of the proceeds from the sale of the Shares IPO Securities as described in the General Disclosure Package and Prospectus therein under the caption “Use of Proceeds”,” and the issuance and sale of shares of Common Stock to BDC Holdings in connection with the Private Placement) and compliance by the Transaction Entities Company with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, and under the Company Agreements do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property properties or assets of the Transaction Entities or any Subsidiary Company pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to resultnot, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, by-laws, certificate of limited partnership, agreement of limited partnership laws or similar organizational document of any documents of the Transaction Entities Company or any of their 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 Transaction Entities or any of their Subsidiaries or any of their assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse EffectGovernmental Entity. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, 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 Transaction Entities or any of their SubsidiariesCompany.

Absence of Defaults and Conflicts. None of the Transaction EntitiesCompany, nor the Operating Partnership or any of their the Subsidiaries is (i) is in violation of its charter, by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document respective Organizational Documents or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contractCompany Document, indentureexcept, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument solely as to which any of the Transaction Entities or any of their Subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties or assets of the Transaction Entities or any of their Subsidiaries is subject clause (collectively, “Agreements and Instruments”ii), except (a) as disclosed in the Registration Statement and the Prospectus or (b) for such defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The execution, delivery and performance of this Agreement Agreement, the Master Forward Confirmations and any “Supplemental Confirmation” under the other Operative Documents Master Forward Confirmations and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Shares and the Private Placement Shares and the use of the proceeds Net Proceeds from the sale of the Shares as described in the General Disclosure Package and Prospectus under the caption “Use of Proceeds”) and compliance by the Transaction Entities Company and the Operating Partnership with their respective obligations hereunder under this Agreement, the Master Forward Confirmations and thereunder any “Supplemental Confirmation” under the Master Forward Confirmations have been or will be duly authorized by all necessary action (corporate or limited partnership action, as applicable, other) and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance Lien upon any property or assets of the Transaction Entities Company, the Operating Partnership or any Subsidiary of the Subsidiaries pursuant to, any Company Documents, except as disclosed in the Agreements Registration Statement and Instruments (the Prospectus and except for such conflicts, breaches, defaults or defaults, Repayment Events or liens, charges Liens that would not result in a Material Adverse Effect or encumbrances that which would not reasonably be expected to resultmaterially and adversely affect the properties or assets thereof or the consummation of the transactions contemplated in this Agreement, singly or in the aggregate, in a Material Adverse Effect). No nor will such action will result in any violation of (A) the provisions of (iii) the charterOrganizational Documents of the Company, by-laws, certificate of limited partnership, agreement of limited partnership the Operating Partnership or similar organizational document of any of the Transaction Entities or any of their Subsidiaries or (Biv) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Transaction Entities Company, the Operating Partnership or any of their the Subsidiaries or any of their respective assets, properties or operations, except except, in the case of clause (Bii), (a) onlyas disclosed in the Registration Statement and the Prospectus and (b) for such violations that would not result in a Material Adverse Effect, for any such violation or that would not reasonably be expected to result materially and adversely affect the properties or assets thereof that, individually or in the aggregate, are material to the Company, the Operating Partnership and the Subsidiaries, taken as a Material Adverse Effect. As used hereinwhole, a or that would not materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Master Forward Confirmations and any “Repayment EventSupplemental Confirmation” means any event or condition which gives under the holder of any note, 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 Transaction Entities or any of their SubsidiariesMaster Forward Confirmations.

Absence of Defaults and Conflicts. None The Company is not in violation of the Transaction Entitiesits Articles of Amendment and Restatement, nor any of their Subsidiaries as amended (i“Charter”) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its charterorganizational documents (including, by-lawswithout limitation, certificate partnership and limited liability company agreements). Neither the Company nor any of limited partnership, agreement of limited partnership or similar organizational document or (ii) its Subsidiaries is in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities Company or any of their Subsidiaries Subsidiary is a party or by which it the Company or any of them Subsidiary may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities Company or any of their Subsidiaries Subsidiary is subject (collectively, “Agreements and Instruments”), except for such defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance by the Company of this Agreement and the other Operative Documents and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares and the use of the proceeds from the sale of the Shares as described in the General Disclosure Package Registration Statement and the Prospectus under the caption “Use of Proceeds”) and compliance by the Transaction Entities Company with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, by-laws, certificate Charter or Bylaws of limited partnership, agreement of limited partnership the Company or similar the organizational document documents of any of the Transaction Entities or any of their Subsidiaries or Subsidiary (B) including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Transaction Entities Company or any of their Subsidiaries Subsidiary or any of their assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities Company or any of their SubsidiariesSubsidiary.

Absence of Defaults and Conflicts. None of the Transaction Entities, nor any of their Subsidiaries The Fund is not (i) is in violation of its charter, declaration of trust or by-laws, certificate of limited partnershipeach as amended from time to time, agreement of limited partnership or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries it is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities or any of their Subsidiaries Fund is subject (collectivelytogether with the declaration of trust and by-laws, the “Agreements and Instruments”), except except, with respect to (ii) only, for such defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement, the Investment Management Agreement dated as of April [—], 2010, between the Fund and the Investment Adviser (the “Investment Management Agreement”), the Amended and Restated Master Custodian Agreement dated as of February 25, 2005, and effective as of [—], 2010, between the Fund and State Street Bank and Trust Company (the “Custodian Agreement”) and the Shareholder Transfer Agency and Service Agreement dated as of October 7, 2002, and effective as of [—], 2010, between the Fund and State Street Bank and Trust Company (the “Transfer Agency Agreement”) and any other Operative Documents material agreements and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and Prospectus under the caption “Use of Proceeds”) and compliance by the Transaction Entities Fund with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, declaration of trust or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any laws of the Transaction Entities Fund, each as amended from time to time, or any of their 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 Transaction Entities Fund or any of their Subsidiaries or any of their its assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities or any of their SubsidiariesFund.

Absence of Defaults and Conflicts. None of the Transaction Entities, nor any of their Subsidiaries (i) The Fund is not in violation of its charter, charter or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries it is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities or any of their Subsidiaries Fund is subject (collectively, “"Agreements and Instruments”), ") except for such violations or defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Agreement and the other Operative Documents Fund Accounting Servicing Agreement referred to in the Registration Statement (as used herein, individually the "Investment Advisory Agreement," the "Custody Agreement" and the "Stock Transfer Agency Agreement," the "Fund Administration Servicing Agreement," and the "Fund Accounting Servicing Agreement," respectively and collectively the "Offering Agreements") and the consummation of the transactions contemplated herein in the Offering Agreements and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares and the use of the proceeds from the sale of the Shares as described in the General Disclosure Package and Prospectus under the caption “"Use of Proceeds”") and compliance by the Transaction Entities Fund with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, charter or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any laws of the Transaction Entities Fund or any of their 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 Transaction Entities Fund or any of their Subsidiaries or any of their its assets, properties or operations, operations (except in the case of clause (B) only, for any such violation violations that would not reasonably be expected to result in a Material Adverse Effect). As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities or any of their SubsidiariesFund.

Absence of Defaults and Conflicts. None of the Transaction Entities, nor any of their Subsidiaries (i) The Trust is not in violation of its charter, Charter or by-laws, certificate of limited partnershipeach as amended from time to time, agreement of limited partnership or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries it is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities or any of their Subsidiaries Trust is subject (collectively, “"Agreements and Instruments”), ") except for such violations or defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement, the Investment Advisory and Management Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Administration, Bookkeeping and Pricing Services Agreement and the other Operative Documents Auction Agency Agreement referred to in the Registration Statement (as used herein, the "Investment Advisory Agreement," the "Custody Agreement," the "Transfer Agency Agreement," the "Administration Agreement" and the "Auction Agency Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares AMPS and the use of the proceeds from the sale of the Shares AMPS as described in the General Disclosure Package and Prospectus under the caption “"Use of Proceeds”") and compliance by the Transaction Entities Trust with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities or any Subsidiary Trust pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation (except for such violations that would not reasonably be expected to result in a Material Adverse Effect) of (A) the provisions of the charter, agreement and declaration of trust or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any laws of the Transaction Entities Trust, each as amended from time to time, or any of their 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 Transaction Entities Trust or any of their Subsidiaries or any of their its assets, properties or operations, except other than State securities or "blue sky" laws applicable in connection with the case purchase and distribution of clause (B) only, for any such violation that would not reasonably be expected the AMPS by the Underwriters pursuant to result in a Material Adverse Effectthis Agreement. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities or any of their SubsidiariesTrust.

Absence of Defaults and Conflicts. None of Neither the Transaction Entities, Company nor any of their the Subsidiaries (i) is in violation of its charter, by-lawslaws or other organizational documents. Further, certificate neither the Company nor any of limited partnership, agreement of limited partnership or similar organizational document or (ii) the Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of the Transaction Entities or any of their Subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities Company or any of their the Subsidiaries is subject (collectively, “Agreements and Instruments”), ) except for such defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement, the Indenture (including the Ninth Supplemental Indenture), the Securities, the Investment Advisory Agreement, the Administration Agreement and the other Operative Documents DTC Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Shares and Securities, the Private Placement Shares issuance of the Underlying Securities upon conversion thereof and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Transaction Entities Company with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Transaction Entities Company or any Subsidiary of the Subsidiaries pursuant to, the Agreements and Instruments (Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, by-laws, certificate laws or other organizational documents of limited partnership, agreement of limited partnership the Company or similar organizational document of any of the Transaction Entities or any of their 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 Transaction Entities Company or any of their the Subsidiaries or any of their assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities Company or any of their the Subsidiaries.

Absence of Defaults and Conflicts. None of Neither the Transaction Entities, Company nor any of their its Significant Subsidiaries (as defined below) is (i) is in violation of its charter, charter or by-laws, certificate of limited partnership, agreement of limited partnership laws or similar organizational document documents or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities Company or any of their its Significant Subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities Company or any of their its Significant Subsidiaries is subject (collectively, “Agreements and Instruments”), except for except, with respect to clause (ii), such defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement and Agreement, each of the other Operative Transaction Documents and the consummation of the transactions contemplated herein therein and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares and Shares, the use of the proceeds from the sale of the Shares as described in the General Pricing Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations under this Agreement and each of the Transaction Entities with their obligations hereunder and thereunder Documents have been duly authorized by all necessary corporate or limited partnership action, as applicable, action and do not and will notnot conflict with, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Transaction Entities Company or any Subsidiary of its Significant Subsidiaries pursuant to, the Agreements and Instruments (Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that are described in the Pricing Disclosure Package or the Prospectus or would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (Ay) the provisions of the charter, charter or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any laws of the Transaction Entities or any of their Subsidiaries Company or (Bz) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Transaction Entities Company or any of their Subsidiaries or any of their its assets, properties or operations, except in the case of except, with respect to clause (B) onlyz), for any such violation that 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 Transaction Entities Company or any of their its Significant Subsidiaries.. As used in this subsection and elsewhere in this Agreement, “Significant Subsidiary” has the meaning set forth in Rule 1-02 of Regulation S-X.

Absence of Defaults and Conflicts. None of the Transaction Entities, nor Company or any of their Subsidiaries its subsidiaries is (i) is in violation of its charterOrganizational Documents, by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document or (ii) is in violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations or (iii) in breach or default (or with or without the giving of notice or the passage of time or both, would be in breach or default) in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties or assets of the Transaction Entities or any of their Subsidiaries is subject (collectively, “Agreements and Instruments”)Company Document, except in the case of clauses (ii) or (iii) for such violations, breaches or defaults that would not reasonably be expected to resultnot, singly individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. The execution, delivery and performance of this Agreement by the Company and the other Operative Guarantors of the Transaction Documents and the consummation of the transactions contemplated herein therein and in the Registration Statement Preliminary Offering Memorandum, the General Disclosure Package and the Offering Memorandum (including the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package Preliminary Offering Memorandum and Prospectus the Offering Memorandum under the caption “Use of Proceeds”) and compliance by the Transaction Entities Company and the Guarantors with their obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, and under the Transaction Documents do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default 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 Transaction Entities Company or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (any Company Documents except for any such conflictsconflict, breachesbreach, defaults Termination Event, Repayment Event, or Repayment Events or liens, charges or encumbrances Lien that would not reasonably be expected to resultnot, singly individually or in the aggregate, in reasonably be expected to have a Material Adverse Effect)Effect or as would not materially adversely affect the ability of the Company and the Guarantors to consummate the transactions contemplated herein. No such action Such actions will not result in any violation of (Ai) the provisions of the charter, by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any Organizational Documents of the Transaction Entities Company or any of their Subsidiaries its subsidiaries or (Bii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Transaction Entities Company or any of their Subsidiaries the Guarantors or any of its or their respective assets, properties or operations, operations except in the case of clause (Bii) onlyas would not, for any such violation that would not individually or in the aggregate, reasonably be expected to result in have a Material Adverse Effect. As used Effect or as would not materially adversely affect the ability of the Company and the Guarantors to consummate the transactions contemplated herein, a “Repayment Event” means any event or condition which gives the holder of any note, 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 Transaction Entities or any of their Subsidiaries.

Absence of Defaults and Conflicts. None of the Transaction Entities, nor any of their Subsidiaries CNX Parties is (i) is in violation of its charter, by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document Organizational Documents or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contemplated by the Transactions or contained in any contractCNX Document, indentureexcept, mortgage, deed in the case of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties or assets of the Transaction Entities or any of their Subsidiaries is subject clause (collectively, “Agreements and Instruments”ii), except for such defaults that would not reasonably be expected to resultnot, singly individually or in the aggregate, result in a Material Adverse EffectEffect or materially and adversely affect the consummation of the transactions contemplated in this Agreement (including the Transactions). The execution, delivery and performance of this Agreement and the other Operative Documents and the consummation of the transactions contemplated herein (including the Transactions) and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Shares and the Private Placement Shares Units and the use of the proceeds from the sale of the Shares Units as described in the General Disclosure Package preliminary prospectus and the Prospectus under the caption “Use of Proceeds”) and compliance by the Transaction Entities CNX Parties party hereto with their obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, and under this Agreement (including the Transactions) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, of or 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 Transaction Partnership Entities or pursuant to any Subsidiary pursuant toCNX Documents, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances Liens that would not reasonably be expected to resultnot, singly individually or in the aggregate, result in a Material Adverse EffectEffect or materially and adversely affect the consummation of the transactions contemplated in this Agreement (including the Transactions). No , nor will such action will result in any violation of (A) the provisions of the charter, by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any Organizational Documents of the Transaction Entities or any of their Subsidiaries CNX Parties 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 Transaction Entities CNX Parties or any of their Subsidiaries or any of their respective assets, properties or operations, except except, in the case of clause (B) only), for any such violation violations that would not reasonably be expected to 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 Transaction Entities or any of their Subsidiaries.

Absence of Defaults and Conflicts. None of the Transaction Entities, nor any of their Subsidiaries (i) The Fund is not in violation of its charter, articles of incorporation or by-laws, certificate of limited partnershipeach as amended from time to time, agreement of limited partnership or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries it is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities or any of their Subsidiaries Fund is subject (collectively, “Agreements and Instruments”), ) except for such violations or defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Administration Agreement, the Custodian Agreement, the Transfer Agency and Service Agreement and other applicable material agreements referred to in the other Operative Documents Registration Statement (as used herein, the “Investment Advisory Agreement,” the “Administration Agreement,” the “Custodian Agreement” and the “Transfer Agency Agreement,” respectively) and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and Prospectus under the caption “Use of Proceeds”) and compliance by the Transaction Entities Fund with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, articles of incorporation or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any laws of the Transaction Entities Fund, each as amended from time to time, or any of their 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 Transaction Entities Fund or any of their Subsidiaries or any of their its assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities or any of their SubsidiariesFund.

Absence of Defaults and Conflicts. None of the Transaction Entities, nor Bank or any of their the Subsidiaries (i) is in violation of its charter, by-laws, certificate of limited partnership, agreement of limited partnership organizational documents or similar organizational document or (ii) is in default in any material respect 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 lease, license or other agreement or instrument to which any of the Transaction Entities Bank or any of their the Subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities Bank or any of their the Subsidiaries is subject (collectively, “Agreements and Instruments”), except for such defaults that would not reasonably be expected to result, singly or in the aggregate, in a Material Adverse Effect. The execution, delivery and performance of this Agreement and the other Operative Transaction Documents by the Bank, and 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 Shares and the Private Placement Shares Shares, and the use of the proceeds from the sale of the Shares as described in the General Disclosure Package and Prospectus Registration Statement under the caption “Use of Proceeds”) ), and compliance by the Transaction Entities Bank with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership actionthereunder, as applicable, and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined belowherein) 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 Transaction Entities Bank or any Subsidiary of the Subsidiaries pursuant to, to the Agreements and Instruments (except for such conflictsInstruments, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, in a Material Adverse Effect). No nor will such action will result in any violation of or conflict with (A) the provisions of the charterorganizational documents of the Bank or resolutions of the directors or shareholders of the Bank, by-lawswhich are in effect at the date hereof, certificate of limited partnership, agreement of limited partnership or similar organizational document of any of the Transaction Entities or any of their Subsidiaries Subsidiaries, or (B) 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 Transaction Entities Bank or any of their the Subsidiaries or any of their assets, properties or operationsoperations (including, except in without limitation, Canadian Securities Laws, applicable corporate law, the case Bank Act (Canada) and the rules and regulations of clause the Toronto Stock Exchange (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effectthe “TSX”)). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, 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 Transaction Entities Bank or any of their the Subsidiaries.

Absence of Defaults and Conflicts. None Neither of the Transaction Entities, nor any of their Subsidiaries subsidiaries (iA) is in violation of its charter, by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document or (iiB) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any either of the Transaction Entities or any of their Subsidiaries subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties or assets of the Transaction Entities or any of their Subsidiaries subsidiaries is subject (collectively, “Agreements and Instruments”), except for such defaults that would not reasonably be expected to resultthat, singly or in the aggregate, would not result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement and the other Operative Documents and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares Securities by the Operating Partnership and the Private Placement Shares issuance of the Guarantee by the Company and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and Prospectus under the caption “Use of Proceeds”) and compliance by the Transaction Entities with their obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Transaction Entities Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to resultnot, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (Ai) the provisions of the charter, by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any of the Transaction Entities or any of their 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 Transaction Entities or any of their Subsidiaries or any of their assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities or any of their Subsidiaries.Operating Partnership

Absence of Defaults and Conflicts. None of Neither the Transaction Entities, Company nor any of their Subsidiaries its subsidiaries is (ia) is in violation of its charter, charter or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document laws or (iib) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities Company or any of their Subsidiaries its subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities Company or any of their Subsidiaries its subsidiaries is subject (collectively, “Agreements and Instruments”), ) except for such defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement Agreement, the Indenture and the Securities and any other Operative Documents agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Disclosure Package and the Final Offering Memorandum and the consummation of the transactions contemplated herein and in the Registration Statement Disclosure Package and the Final Offering Memorandum (including the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and Prospectus the Final Offering Memorandum under the caption “Use of Proceeds”) and compliance by the Transaction Entities Company and the Guarantors with their obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, other action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Transaction Entities Company or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to resultthat, singly or in the aggregate, would not result in a Material Adverse Effect). No , nor will such action will result in any violation of (Ax) the provisions of the charter, charter or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any laws of the Transaction Entities Company or any of their Subsidiaries its subsidiaries or (By) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Transaction Entities Company or any of their Subsidiaries its subsidiaries or any of their assets, properties or operations, except in the case of clause (By) onlyabove, for any such violation that violations that, singly or in the aggregate, 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 Transaction Entities Company or any of their Subsidiariesits subsidiaries.

Absence of Defaults and Conflicts. None of Neither the Transaction Entities, Company nor any of their the Subsidiaries (i) is in violation of its charter, by-lawslaws or other organizational documents. Further, certificate neither the Company nor any of limited partnership, agreement of limited partnership or similar organizational document or (ii) the Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of the Transaction Entities or any of their Subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities Company or any of their the Subsidiaries is subject (collectively, “Agreements and Instruments”), ) except for such defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement, the Indenture (including the Supplemental Indenture), the Underwritten Securities, the Warrant Agreement, if applicable, the Investment Advisory Agreement, the Administration Agreement and the other Operative Documents DTC Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement and General Disclosure Package (including the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and 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 Transaction Entities Company with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, and do not and will not, whether with or without the giving of notice or passage of time or both, (A) conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Transaction Entities Company or any Subsidiary of the Subsidiaries pursuant to, the Agreements and Instruments (Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , or (B) conflict with or constitute a breach of, or default under, any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which Ares Management LLC (“Ares”) is a party or by which ▇▇▇▇ may be bound, or to which any of the property or assets of Ares is subject, or the limited partner agreement or other governing documents of any fund managed by, advised by or affiliated with ▇▇▇▇, except for such conflicts, breaches or defaults that would not result in a Material Adverse Effect, nor will such action will result in any violation of (A) the provisions of the charter, by-laws, certificate laws or other organizational documents of limited partnership, agreement of limited partnership the Company or similar organizational document of any of the Transaction Entities or any of their 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 Transaction Entities Company or any of their the Subsidiaries or any of their assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities Company or any of their the Subsidiaries.

Absence of Defaults and Conflicts. None of the Transaction Entities, nor any of their Subsidiaries (i) The Trust is not in violation of its charter, Declaration or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries it is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities or any of their Subsidiaries Trust is subject (collectively, “"Agreements and Instruments”), ") except for such violations or defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement, the Management Agreement, the Sub-Advisory Agreement, the Custodian Agreement, the Transfer Agent and Service Agreement and the other Operative Documents Auction Agency Agreement referred to in the Registration Statement (as used herein, the "Management Agreement," the "Sub-Advisory Agreement," the "Custodian Agreement," the "Transfer Agency Agreement," and the "Auction Agency Agreement" respectively, and collectively, the "Trust Agreements") and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares AMPS and the use of the proceeds from the sale of the Shares AMPS as described in the General Disclosure Package and Prospectus under the caption “"Use of Proceeds”") and compliance by the Transaction Entities Trust with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities or any Subsidiary Trust pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, declaration of trust or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any laws of the Transaction Entities Trust or any of their 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 Transaction Entities Trust or any of their Subsidiaries or any of their its assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities or any of their SubsidiariesTrust.

Absence of Defaults and Conflicts. None of Neither the Transaction Entities, Operating Partnership nor any of their Subsidiaries (i) Subsidiary is in violation of its charter, by-laws, certificate of limited partnership, agreement of limited partnership or similar partnership agreement or other organizational document document, as the case may be, or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries each entity is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties its property or assets of the Transaction Entities may be bound or any of their Subsidiaries is subject (collectively, “"Agreements and Instruments”"), except for such violations or defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The execution, delivery and performance of this Agreement Underwriting Agreement, the applicable Terms Agreement, the Indenture and any other agreement or instrument entered into or issued or to be entered into or issued by the Operating Partnership in connection with the transactions contemplated hereby or thereby or in the Registration Statement and the other Operative Documents Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Shares and the Private Placement Shares Underwritten Securities and the use of the proceeds from the sale of the Shares Underwritten Securities as described in the General Disclosure Package and Prospectus under the caption “"Use of Proceeds”") and compliance by the Transaction Entities Operating Partnership with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities Operating Partnership or any Subsidiary pursuant to, the any Agreements and Instruments (Instruments, except for such conflicts, breaches, defaults or defaults, Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, by-laws, certificate of limited partnership, agreement of limited partnership laws or similar the organizational document of any documents of the Transaction Entities Operating Partnership or any of their 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 Transaction Entities Operating Partnership or any of their Subsidiaries Subsidiary or any of their assets, properties or operations, except in the case of clause (B) only, for any such violation violations that would not reasonably be expected to result in have a Material Adverse Effect. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a material portion of such indebtedness by the Transaction Entities Operating Partnership or any of their SubsidiariesSubsidiary.

Absence of Defaults and Conflicts. None of the Transaction Entities, nor any of their Subsidiaries (i) The Fund is not in violation of its charter, agreement and declaration of trust or by-laws, certificate of limited partnershipeach as amended from time to time, agreement of limited partnership or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries it is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities or any of their Subsidiaries Fund is subject (collectively, “"Agreements and Instruments”), ") except for such violations or defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement, the Investment Management Agreement, the Investment Advisory Agreement, the Administrative Services Agreement, the Custodian Agreement and the other Operative Documents Transfer Agency and Service Agreement referred to in the Registration Statement (as used herein, the "Management Agreement," the "Advisory Agreement," the "Administrative Services Agreement," the "Custodian Agreement" and the "Transfer Agency Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and Prospectus under the caption “"Use of Proceeds”") and compliance by the Transaction Entities Fund with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation (except for such violations that will not result in a Material Adverse Effect) of (A) the provisions of the charter, agreement and declaration of trust or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any laws of the Transaction Entities Fund, each as amended from time to time, or any of their 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 Transaction Entities Fund or any of their Subsidiaries or any of their its assets, properties or operations, except other than State securities or "blue sky" laws applicable in connection with the case purchase and distribution of clause (B) only, for any such violation that would not reasonably be expected the Securities by the Underwriters pursuant to result in a Material Adverse Effectthis Agreement. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities or any of their SubsidiariesFund.

Absence of Defaults and Conflicts. Neither of the Arch Entities are in violation of their respective charter, memorandum of association, bye-laws or other constitutive documents. None of the Transaction Entities, nor any of their Subsidiaries (i) Guarantor’s subsidiaries is in violation of its charterorganizational documents, by-lawsexcept for such violations that would not, certificate singly or in the aggregate, have a Material Adverse Effect. None of limited partnership, agreement the Arch Entities nor any of limited partnership or similar organizational document or (ii) their respective subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument instrument, including the Acquisition Agreements, to which any of the Transaction Arch Entities or any of their Subsidiaries is respective subsidiaries are a party or by which it they or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Arch Entities or any of their Subsidiaries is respective subsidiaries are subject (collectively, “Agreements and Instruments”), ) except for such defaults that would not reasonably be expected to resultnot, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement and the other Operative Documents and the consummation of the transactions contemplated herein and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Shares and Notes, the Private Placement Shares issuance of the Guarantee and the use of the proceeds from the sale of the Shares Notes as described in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Transaction Arch Entities with their obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Arch Entities or any Subsidiary of their subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to resultnot, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (Ai) the provisions of the charter, bymemorandum, bye-laws, certificate of limited partnership, agreement of limited partnership laws or similar organizational document of any other constitutive documents of the Transaction Arch Entities or any of their Subsidiaries subsidiaries or (Bii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Transaction Arch Entities or any of their Subsidiaries subsidiaries or any of their assets, properties or operationsoperations (except where such violations with respect to this Section 1(xv)(ii) would not, except singly or in the case of clause (B) onlyaggregate, for any such violation that would not reasonably be expected to result in have a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Arch Entities or any of their Subsidiariessubsidiaries.

Absence of Defaults and Conflicts. None of the Transaction Entities, nor any of their Subsidiaries (i) The Trust is not in violation of its charter, by-laws, certificate of limited partnershiptrust, agreement of limited partnership if applicable, or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries Trust is a party or by which it or any of them may be bound, bound or to which any of the Properties or any other properties property or assets of the Transaction Entities or any of their Subsidiaries Trust is subject (collectively, the “Trust Agreements and Instruments”), except for such violations or defaults that would not reasonably be expected to result, singly or in the aggregate, in a Material Adverse Effect. The execution, delivery and performance of this Agreement and the other Operative Documents and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares and the use of the proceeds from the sale of the Shares as described in the General Disclosure Package and Prospectus under the caption “Use of Proceeds”) and compliance by the Transaction Entities with their obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Transaction Entities or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, in a Material Adverse Effect). No such action will result in any violation of (A) the provisions of the charter, by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any of the Transaction Entities or any of their 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 Transaction Entities or any of their Subsidiaries or any of their assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Trust Material Adverse Effect. As used herein; and (A) the execution, delivery and performance of the Selling Agent Agreement, the Indenture, the Notes, each Funding Agreement, the Administration Agreement, the License Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the Trust in connection with the transactions contemplated by the Time of Sale Prospectus, (B) the performance of the Trust Agreement (all agreements and instruments referenced in clauses (A) and (B) above are referred to herein as the “Program Documents”), (C) the consummation of the transactions contemplated in the Time of Sale Prospectus (including the issuance and sale of the Notes and the use of proceeds therefrom as described in the Time of Sale Prospectus) and (D) the compliance by the Trust with its obligations under the Program Documents do not and will not constitute a “Repayment Event” means any event breach, violation or condition default which (1) gives the holder of any note, 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 Transaction Entities Trust under, or (2) result in the creation or imposition of any lien, charge or encumbrance upon any assets, properties or operations of the Trust pursuant to, any Trust Agreements and Instruments, nor will such action result in any violation of the Trust’s certificate of trust, if applicable, the Trust Agreement and the Trust is not in default in the performance or observance of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Trust or any of their Subsidiariesits assets, properties or operations; provided that no representation or warranty is made with respect to the Funding Agreement(s) 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 of 2001, as amended, or any other law, rule or regulation, relating to money laundering, terrorist financing or other illegal activities; provided further that in the case of clause (1) of this paragraph (iv), this representation and warranty shall not extend to such repurchase, redemption or repayment that would not result in a Trust Material Adverse Effect and in the case of clause (2) of this paragraph (iv), this representation and warranty shall not extend to such lien, charges or encumbrances or any violations or defaults that would not result in a Trust Material Adverse Effect.

Absence of Defaults and Conflicts. None of Neither the Transaction Entities, Company nor any of their Subsidiaries its subsidiaries is (ix) is in violation of its charter, charter or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document laws or (iiy) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, license, indenture, mortgage, deed of trust, loan or credit agreement, note, lease lease, material supply or distribution agreement or other agreement or instrument to which any of the Transaction Entities Company or any of their Subsidiaries its subsidiaries is a party or by which it or any of them may be boundbound or affected, or to which any of the Properties or any other properties property or assets of the Transaction Entities Company or any of their Subsidiaries its subsidiaries is subject (collectively, “"Agreements and Instruments”") which default, in the case of clause (y), except for such defaults that would not reasonably be expected to resultnot, singly or in the aggregate, result in a Material Adverse Effect. The execution, delivery and performance of this Agreement and the other Operative Documents Registration Rights Agreement and the consummation of the transactions contemplated herein herein, therein and in the Registration Statement Offering Memorandum (including the entering into and borrowing under new senior secured credit facilities, the private offering and sale of Securities and convertible preferred stock, the issuance and sale of the Shares and the Private Placement Shares and Company's common stock, the use of the proceeds from the sale foregoing, including the payment of all outstanding obligations under and the Shares termination of commitments under the Company's existing credit facilities and its U.S. accounts receivable asset-backed securitization facility, as described in the General Disclosure Package and Prospectus Offering Memorandum under the caption “"Use of Proceeds”" and the exchange offer and/or filing of a shelf registration statement related to the Securities) (the "Transactions") and compliance by the Transaction Entities Company with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, action and do not conflict with and will notnot result in any breach of or constitute a default under (nor constitute any event which with notice, whether with or without the giving of notice or passage lapse of time or both, conflict with or both would constitute a breach of, of or default under) 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 Transaction Entities Company or any Subsidiary of its subsidiaries pursuant toto any provision of any contract, license, indenture, mortgage, deed of trust, loan or credit agreement, note, lease, material supply or distribution agreement or any other agreement or instrument to which the Agreements and Instruments Company or any of its subsidiaries is a party or by which any of them or their properties may be bound or affected (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to resultnot, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any a violation of (A) the provisions charter or by-laws of the charter, by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any of the Transaction Entities Company or any of their Subsidiaries its subsidiaries or (B) any applicable federal, state, local or foreign law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over applicable to the Transaction Entities Company or any of their Subsidiaries or any of their assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effectits subsidiaries. As used herein, a “"Repayment Event” " (other than such Repayment Events which will be satisfied at the Closing Time) means any 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 Transaction Entities Company or any of their Subsidiariesits subsidiaries.

Absence of Defaults and Conflicts. None of Neither the Transaction Entities, Company nor any of their Subsidiaries (i) its subsidiaries is in violation of its charter, constating documents or by-laws, certificate of limited partnership, agreement of limited partnership laws or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities Company or any of their Subsidiaries its subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities Company or any of their Subsidiaries subsidiary is subject (collectively, “Agreements and Instruments”), ) except for such defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement the applicable Terms Agreement, the Indenture, the Underwritten Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the other Operative Documents Company in connection with the transactions contemplated herein, and the consummation of the transactions contemplated herein and in the Registration Statement (including Statement, the Pricing Disclosure Package, the U.S. Prospectus and the Canadian Prospectus, the issuance and sale of the Shares and the Private Placement Shares Underwritten Securities and the use of the proceeds from the sale of the Shares Underwritten Securities as described in the General Pricing Disclosure Package Package, the U.S. Prospectus and the Canadian Prospectus under the caption “Use of Proceeds”) ” and compliance by the Transaction Entities Company with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities Company or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of the provisions of (A) the provisions of the charter, by-laws, certificate of limited partnership, agreement of limited partnership laws or similar organizational document of any other governing documents of the Transaction Entities Company or any of their Subsidiaries the Subsidiaries, as the case may be, 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 Transaction Entities Company or any of their the Subsidiaries or any of their assets, properties or operations, except which violation would, in the case of clause (B) only, for any such violation that would not reasonably be expected to result in have a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities Company or any of their Subsidiariessubsidiary.

Absence of Defaults and Conflicts. None of Neither the Transaction Entities, Company nor any of their its Subsidiaries (i) is in violation of its charter, charter or by-laws, certificate of limited partnership, agreement of limited partnership laws or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities Company or any of their its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities Company or any of their its Subsidiaries is subject (collectively, “"Agreements and Instruments”), ") except for such defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The execution, delivery and performance of this Agreement Agreement, the Registration Rights Agreement, the DTC Agreement, the Indenture and the Securities and any other Operative Documents 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 the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and Prospectus Offering Memorandum under the caption “"Use of Proceeds”") and compliance by the Transaction Entities Company with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities Company or any Subsidiary of its Subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to resultthat, singly or in the aggregate, would not result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, charter or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any laws of the Transaction Entities Company or any of their its Subsidiaries or (B) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Transaction Entities Company or any of their its Subsidiaries or any of their assetsassets or properties, properties or operations, except in the case of this clause (B) only), except for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities Company or any of their its Subsidiaries.

Absence of Defaults and Conflicts. None of Neither the Transaction Entities, Company nor any of their Subsidiaries (i) Significant Subsidiary is in violation of its charter, byRestated Certificate of Incorporation or By-laws, certificate of limited partnership, agreement of limited partnership Laws or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries it is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties its property or assets of the Transaction Entities or any of their Subsidiaries is subject (collectively, “"Agreements and Instruments”), ") except for such defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement Agreement, the issuance and delivery of the other Operative Documents Shares, and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares and the use of the proceeds from the sale of the Shares as described in the General Disclosure Package and Prospectus under the caption “"Use of Proceeds”") and compliance by the Transaction Entities Company with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities Company or any Significant Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, byRestated Certificate of Incorporation or By-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any Laws of the Transaction Entities Company or any of their Subsidiaries Significant 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 Transaction Entities Company or any of their Subsidiaries Significant Subsidiary or any of their assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities Company or any of their SubsidiariesSignificant Subsidiary.

Absence of Defaults and Conflicts. None of Neither the Transaction Entities, Company nor any of their its Subsidiaries (i) is in violation of its charter, charter or by-laws, certificate of limited partnership, agreement of limited partnership laws or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities Company or any of their its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities Company or any of their Subsidiaries Subsidiary is subject (collectively, “"Agreements and Instruments”"), except for such defaults that as would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The execution, delivery and performance of this Agreement, the U.S. Purchase Agreement and the applicable Terms Agreements and any other Operative Documents agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Registration Statement and the Prospectuses and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectuses (including the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and Prospectus under the caption “"Use of Proceeds”") and compliance by the Transaction Entities Company with their its obligations hereunder under this Agreement and thereunder the U.S. Purchase Agreement have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities Company or any Subsidiary of its Subsidiaries pursuant to, the any Agreements and Instruments (Instruments, except for such conflicts, breaches, defaults or Repayment Events defaults, events or liens, charges or encumbrances that would not reasonably be expected to resultthat, singly or in the aggregate, would not result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any of the Transaction Entities or any of their 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 Transaction Entities Company or any of their its Subsidiaries or any of their assetsassets or properties, properties or operations, except in the case of clause (B) only, for any such which violation that would not reasonably be expected to result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the charter or by-laws of the Company or any of its Subsidiaries. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities Company or any of their SubsidiariesSubsidiary.

Absence of Defaults and Conflicts. None of the Transaction Entities, nor any of their Subsidiaries DB Entities is (iA) is in violation of its charterconstituent documents, charter or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document laws or (iiB) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction DB Entities or any of their Subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities or any of their Subsidiaries DB Entity is subject (collectively, “Agreements and Instruments”), except for such violations or defaults that would not reasonably be expected have a material adverse effect on the ability of the relevant DB Entity to result, singly or in perform its obligations under the aggregate, in a Material Adverse EffectTransaction Documents (as defined below). The execution, delivery and performance by the DB Entities of this Agreement Agreement, the Trust Agreement, the LLC Agreement, the Guarantees, the Initial Obligation, [list other agreements] (collectively, “Transaction Documents”) and the other Operative Documents Securities and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and Prospectus under the caption “Use of Proceeds”) and compliance by the Transaction Entities Trust, the Company and the Guarantor with their respective obligations hereunder under the Transaction Documents and thereunder the Securities have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction DB Entities or any Subsidiary subsidiary of the Guarantor pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charterconstituent documents, charter or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any laws of the Transaction DB Entities or any subsidiary of their Subsidiaries the Guarantor 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 Transaction DB Entities or any subsidiary of their Subsidiaries the Guarantor or any of their assets, properties or operationsoperations (except, except in the case of clause with respect to (B) only), for any such violation violations that would not reasonably be expected to result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction DB Entities or any subsidiary of their Subsidiariesthe Guarantor.

Absence of Defaults and Conflicts. None of the Transaction Entities, nor any of their Subsidiaries Issuers is (iA) is in violation of its charter, charter or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document laws or (iiB) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities Guarantor or any of their Subsidiaries its subsidiaries is a party or by which it the Guarantor or any of them its subsidiaries may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities Guarantor or any of their Subsidiaries its subsidiaries is subject (collectively, “Agreements and Instruments”), "AGREEMENTS AND INSTRUMENTS") except in the case of clause (B) above for such defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement Agreement, the Registration Rights Agreement, the Indenture, the Guarantee and the other Operative Documents Securities and the consummation of the transactions contemplated herein and in the Registration Statement Offering Memorandum (including the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and Prospectus Offering Memorandum under the caption “"Use of Proceeds”" and the issuance of the shares of Common Stock issuable upon exchange of the Securities) and compliance by each of the Transaction Entities Company and the Guarantor with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership actionunder the Indenture, as applicablethe Registration Rights Agreement, the Guarantee and the Securities do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or 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 Transaction Entities Guarantor or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to resultthat, singly or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect). No , nor will such action will result in any violation of (Ai) the provisions of the charter, charter or by-laws, certificate of limited partnership, agreement of limited partnership laws or similar other constituting or organizational document of any of the Transaction Entities Guarantor or any of their Subsidiaries its subsidiaries or (Bii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, presently having jurisdiction over the Transaction Entities Guarantor or any of its subsidiaries or any of their Subsidiaries or any of their respective assets, properties or operationsoperations (except for such violations that, except singly or in the case of clause (B) onlyaggregate, for any such violation that would not reasonably be expected to result in have a Material Adverse Effect). As used herein, a “Repayment Event” "REPAYMENT EVENT" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment prior to the stated maturity or date of mandatory redemption or repayment thereof of all or a portion of such indebtedness by the Transaction Entities Company or any of their SubsidiariesGuarantor.

Absence of Defaults and Conflicts. None of Neither the Transaction Entities, Company nor any of their Subsidiaries its subsidiaries is (iA) is in violation of its charter, charter or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document laws or (iiB) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities Company or any of their Subsidiaries its subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities Company or any of their Subsidiaries its subsidiaries is subject (collectively, “Agreements and Instruments”) except (in the case of this clause (B), except ) for such defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement the Transaction Documents and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Disclosure Package and the other Operative Documents Final Offering Memorandum and the consummation of the transactions contemplated herein and in the Registration Statement Disclosure Package and the Final Offering Memorandum (including the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and Prospectus the Final Offering Memorandum under the caption “Use of Proceeds”) and compliance by the Transaction Entities Company with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities Company or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to resultthat, singly or in the aggregate, would not result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, charter or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any laws of the Transaction Entities Company or any of their Subsidiaries its subsidiaries or (B) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Transaction Entities Company or any of their Subsidiaries its subsidiaries or any of their assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities Company or any of their Subsidiariesits subsidiaries.

Absence of Defaults and Conflicts. None of the Transaction Entities, nor any of their Subsidiaries (i) The Trust is not in violation of its charter, declaration of trust or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries it is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities or any of their Subsidiaries Trust is subject (collectively, “Agreements and Instruments”), ) except for such violations or defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Trust Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement, the Investment Management Agreement dated as of [•], 2007 between the Trust and BAL (the “Management Agreement”), the Sub-Investment Advisory Agreement dated as of [•], 2007 by and among the Trust, BAL and BFM (the “Sub-Advisory Agreement” and, together with the Management Agreement, the “Advisory Agreements”), the Custodian Agreement dated as of [•], 2007 between the Trust and The Bank of New York (the “Custodian Agreement”), and the Transfer Agent and Service Agreement dated as of [•], 2007 between the Trust and The Bank of New York (the “Transfer Agency Agreement”) [and other Operative Documents material agreements] and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and Prospectus under the caption “Use of Proceeds”) and compliance by the Transaction Entities Trust with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, action under the Delaware Statutory Trust Act 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 Transaction Entities or any Subsidiary Trust pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Trust Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, declaration of trust or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any laws of the Transaction Entities Trust, each as amended from time to time, or any of their 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 Transaction Entities Trust or any of their Subsidiaries or any of their its assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities or any of their SubsidiariesTrust.

Absence of Defaults and Conflicts. None of the Transaction Entities, nor any of their Subsidiaries The Fund is not (i) is in violation of its charter, charter or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries it is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities or any of their Subsidiaries Fund is subject (collectively, “Agreements and Instruments”) except, with respect to this clause (ii), except for such violations or defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement Agreement, and the other Operative Documents Alternative Distribution Agreement, and the consummation of the transactions contemplated herein in this Agreement and the Alternative Distribution Agreement and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares and the use of the proceeds from the sale of the Shares as described in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Transaction Entities Fund with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities or any Subsidiary Fund pursuant to, the Investment Advisory Agreement, between the Fund and the Adviser, dated September 15, 2009 (the “Investment Advisory Agreement”), the Custody Agreement, between the Fund and U.S. Bank National Association, dated May 25, 2005 (the “Custody Agreement”), the Stock Transfer Agency Agreement, between the Fund and Computershare Investor Services, LLC, dated May 10, 2005, as amended by that certain addendum thereto between the same parties dated as of November 20, 2009 (the “Stock Transfer Agency Agreement”), the Fund Administration Servicing Agreement, between the Fund and U.S. Bancorp Fund Services, LLC, dated May 25, 2005, as amended by that certain addendum thereto between the same parties dated as of October 24, 2007 (the “Fund Administration Servicing Agreement”) and the Fund Accounting Servicing Agreement, between the Fund and U.S. Bancorp Fund Services, LLC, dated September 5, 2006 (the “Fund Accounting Servicing Agreement”, and collectively with the Investment Advisory Agreement, Custody Agreement, Stock Transfer Agency Agreement and the Fund Administration Servicing Agreement, the “Fund Agreements”) and the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, charter or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any laws of the Transaction Entities Fund or any of their 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 Transaction Entities Fund or any of their Subsidiaries or any of their its assets, properties or operations, operations (except in the case of clause (B) only, for any such violation violations that would not reasonably be expected to result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities or any of their SubsidiariesFund.

Absence of Defaults and Conflicts. None of the Transaction Entities, nor any of their Subsidiaries (i) The Fund is not in violation of the Articles or its charterBylaws, by-lawseach as amended or supplemented to date, certificate of limited partnership, agreement of limited partnership or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any the Fund is a party, including each of the Transaction Entities or any of their Subsidiaries is a party Fund Agreements, or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities or any of their Subsidiaries Fund is subject (collectively, “Agreements and Instruments”), ) except for such violations or defaults that would not reasonably be expected to resultnot, singly individually or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement dated as of May 30, 2019, the Administration Agreement dated as of May 9, 2013, as renewed on April 24, 2018 and the other Operative Documents Custodian Agreement dated as of October 5, 2012 and the Transfer Agency and Services Agreement dated as of May 9, 2013, referred to in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Administration Agreement,” the “Custody Agreement” and the “Transfer Agency Agreement” respectively and collectively the “Fund Agreements”) and the consummation of the transactions contemplated herein in this Agreement, the Fund Agreements and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares and the use of the proceeds from the sale of the Shares as described in the General Disclosure Package Preliminary Prospectus and the Prospectus under the caption “Use of Proceeds”) and compliance by the Transaction Entities Fund with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to resultnot, singly individually or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in (i) any violation of (A) the provisions of the charter, by-laws, certificate of limited partnership, agreement of limited partnership Articles or similar organizational document of any Bylaws of the Transaction Entities or any of their Subsidiaries Fund or (Bii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Transaction Entities Fund or any of their Subsidiaries or any of their its assets, properties or operations, except in the case of clause with respect to (Bii) only, for any such violation violations that would not reasonably be expected to 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 Transaction Entities or any of their SubsidiariesFund.

Absence of Defaults and Conflicts. None of the Transaction Entities, nor any of their Subsidiaries The Trust is not (i) is in violation of its charter, declaration of trust or by-laws, certificate of limited partnershipeach as amended from time to time, agreement of limited partnership or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries it is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities or any of their Subsidiaries Trust is subject (collectively, “Agreements and Instruments”), ) except for such defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Trust Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement, the Investment Management Agreement dated as of [·], 2011 between the Trust and BAL (the “Management Agreement”), the Sub-Investment Advisory Agreement dated as of [·], 2011 by and among the Trust, BAL and BCM (the “Sub-Advisory Agreement” and, together with the Management Agreement, the “Advisory Agreements”), the Custodian Agreement dated as of [·] between the Trust and [·] (the “Custodian Agreement”), and the other Operative Documents Transfer Agent and Service Agreement dated as of [·] between the Trust and [·] (the “Transfer Agency Agreement”) and the consummation of the transactions contemplated herein and in the Statutory Prospectus, the Registration Statement and the Prospectus (including the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and Prospectus under the caption “Use of Proceeds”) and compliance by the Transaction Entities Trust with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, action under the Delaware Statutory Trust Act 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 Transaction Entities or any Subsidiary Trust pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Trust Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, declaration of trust or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any laws of the Transaction Entities Trust, each as amended from time to time, or any of their 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 Transaction Entities Trust or any of their Subsidiaries or any of their its assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities or any of their SubsidiariesTrust.

Absence of Defaults and Conflicts. None of the Transaction Entities, nor any of their Subsidiaries The Fund is not (i) is in violation of its chartercharter or bylaws, by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries it is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities or any of their Subsidiaries Fund is subject (collectively, “Agreements and Instruments”)) except, except with respect to this clause (ii) for such violations or defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement between U.S. Bank National Association (“Custodian”) and the Fund (the “Custodian Agreement”), the Stock Transfer Agency Agreement between Computershare Trust Company, N.A. (the “Transfer Agent”) and the Fund (the “Transfer Agency Agreement”), and the Administration Agreement between U.S. Bancorp Fund Services, LLC (the “Administrator”) and the Fund (the “Administration Agreement”) (this Agreement, the Investment Advisory Agreement, the Custodian Agreement, the Transfer Agency Agreement and the other Operative Documents Administration Agreement being referred to herein collectively as the “Fundamental Agreements”) and the consummation of the transactions contemplated herein in the Fundamental Agreements, the Plan and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares and the use of the proceeds from the sale of the Shares as described in the General Disclosure Package Prospectus and the Time of Sale Prospectus under the caption “Use of Proceeds”) and compliance by the Transaction Entities Fund with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities or any Subsidiary Fund pursuant to, the Fundamental Agreements and Instruments or the Plan (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, by-laws, certificate of limited partnership, agreement of limited partnership charter or similar organizational document of any bylaws of the Transaction Entities Fund or any of their 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 Transaction Entities Fund or any of their Subsidiaries or any of their its assets, properties or operations, operations (except in the case of clause (B) only, for any such violation violations that would not reasonably be expected to result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities or any of their SubsidiariesFund.

Absence of Defaults and Conflicts. None of Neither the Transaction Entities, Company nor any of their Subsidiaries (i) its subsidiaries is in violation of its charter, charter or by-laws, certificate of limited partnership, agreement of limited partnership laws or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities Company or any of their Subsidiaries its subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities Company or any of their Subsidiaries subsidiary is subject (collectively, “"Agreements and Instruments”), ") except for such defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement and the other Operative Documents and the consummation of the transactions contemplated herein and in the Registration Statement (including the $200 million operating lease facility (the "Synthetic Lease Transaction") and the $50 million credit facility (the "Credit Facility") as described in the Prospectuses under the caption "Management's Discussion and Analysis of Financial Condition and Results of Operation B Liquidity and Capital Resources" and the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and Prospectus under the caption “"Use of Proceeds”") and compliance by the Transaction Entities Company and the Operating Subsidiary with their respective obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities Company, the Operating Subsidiary or any Subsidiary other subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in (i) any violation of (A) the provisions of the charter, charter or by-lawslaws of the Company or the Operating Subsidiary, certificate (ii) any violation of limited partnership, agreement the provisions of limited partnership the charter or similar organizational document by-laws of any of subsidiary other than the Transaction Entities or any of their Subsidiaries Operating Subsidiary (except for such violations that would not result in a Material Adverse Effect) or (Biii) any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Transaction Entities Company or any of their Subsidiaries subsidiary or any of their assets, properties or operations, operations (except in the case of clause (B) only, for any such violation violations that would not reasonably be expected to result in a Material Adverse Effect). As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities or any of their Subsidiaries.which

Absence of Defaults and Conflicts. None of the Transaction Entities, nor Simon Entities or any of their Subsidiaries (i) Property Partnership is in violation of its charter, by-laws, certificate of limited partnership, agreement of limited partnership or similar partnership agreement or other organizational document document, as the case may be, or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries each entity is a party or by which it or any of them may be bound, or to which any of the Properties its property or assets or any other properties Portfolio Property may be bound or assets of the Transaction Entities or any of their Subsidiaries is subject (collectively, “"Agreements and Instruments”"), except for such violations (other than with respect to the charter, by-laws, partnership agreement, or other organizational document of the Companies, as the case may be) or defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The execution, delivery and performance of this Underwriting Agreement, the applicable Terms Agreement and each applicable Warrant Agreement and Deposit Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the other Operative Documents Companies or the Operating Partnership in connection with the transactions contemplated hereby or thereby or in the Registration Statement and the Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Shares and the Private Placement Shares Underwritten Securities and the use of the proceeds from the sale of the Shares Underwritten Securities as described in the General Disclosure Package and Prospectus under the caption “"Use of Proceeds”") and compliance by the Transaction Entities Companies and the Operating Partnership with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicablethe case may be, and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Transaction Entities Companies or any Subsidiary other Simon Entity or any Property Partnership pursuant to, the any Agreements and Instruments (Instruments, except for such conflicts, breaches, defaults or defaults, Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, by-laws, certificate laws of limited partnership, agreement of limited partnership the Companies or similar the organizational document documents of any of the Transaction Entities other Simon Entity or any of their 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 Transaction Entities Companies, any other Simon Entity or any of their Subsidiaries - 10 - Property Partnership or any of their assets, properties or operations, except in for such violations (other than with respect to the charter, by-laws, partnership agreement, or other organizational document of the Companies, as the case of clause (Bmay be) only, for any such violation that would not reasonably be expected to result in have a Material Adverse Effect. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a material portion of such indebtedness by the Transaction Entities Companies, any other Simon Entity or any of their SubsidiariesProperty Partnership.

Absence of Defaults and Conflicts. None The Fund is not in violation of the Transaction EntitiesStatement or by-laws, nor any each as amended or supplemented to date, and none of their Subsidiaries (i) its subsidiaries is in violation of any of its charter, by-laws, certificate organizational documents. None of limited partnership, agreement the Fund nor any of limited partnership or similar organizational document or (ii) its subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities Fund or any of their Subsidiaries its subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities Fund or any of their Subsidiaries its subsidiaries is subject (collectively, “Agreements and Instruments”), ) except for such violations or defaults (A) that do not involve Offering Agreements (as defined below) and (B) that would not reasonably be expected to resultnot, singly individually or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement dated as of September 1, 2017 between the Fund and the other Operative Documents Adviser, the Master Custodian Agreement dated as of October 3, 2018 between the Fund, by amended appendix, and Bank of New York Mellon, the Master Sub-Administration Agreement dated as of July 19, 2018 between SEI Investments Global Funds Services, NexPoint Advisors, L.P. and the Adviser and the Transfer Agency and Registrar Services Agreement dated as of November 3, 2017 between the Fund and American Stock Transfer & Trust Company, LLC, referred to in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Sub-Administration Agreement,” the “Custody Agreement,” and the “Transfer Agency Agreement,” respectively and collectively the “Offering Agreements”) and the consummation of the transactions contemplated herein in the Offering Agreements and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares and the use of the proceeds from the sale of the Shares as described in the General Disclosure Package Preliminary Prospectus and the Prospectus under the caption “Use of Proceeds”) and compliance by the Transaction Entities Fund and each of its subsidiaries with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, trust 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 Transaction Entities Fund or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to resultnot, singly individually or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in (i) any violation of (A) the provisions of the charter, Statement or by-laws, certificate laws of limited partnership, agreement of limited partnership the Fund or similar any organizational document documents of any of the Transaction Entities or any of their Subsidiaries its subsidiaries or (Bii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Transaction Entities or Fund, any of their Subsidiaries or any of their its subsidiaries, assets, properties or operations, except with respect to (ii) only for such violations that would not, individually or in the case of clause (B) onlyaggregate, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities Fund or any of their Subsidiariesits subsidiaries.

Absence of Defaults and Conflicts. None of Neither the Transaction Entities, Company nor any of their its Subsidiaries (i) is in violation of its declaration of trust, charter, partnership agreement, limited liability company agreement, by-laws, certificate of limited partnership, agreement of limited partnership laws or similar other organizational document documents or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities Company or any of their its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities Company or any of their Subsidiaries Subsidiary is subject (collectively, “Agreements and Instruments”), except for such defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The Effect or that are otherwise specifically disclosed in the Registration Statement, the General Disclosure Package and the Prospectus; and the execution, delivery and performance of this Agreement by the Company and the other Operative Documents Operating Partnership and the consummation of the transactions contemplated herein and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Shares and the Private Placement Shares and the use of the proceeds from the sale of the Shares thereof as described in the General Disclosure Package and Prospectus therein under the caption “Use of Proceeds”) and compliance by the Transaction Entities Company and the Operating Partnership with their respective obligations hereunder and thereunder have been duly authorized by all necessary corporate or real estate investment trust and limited partnership action, as applicablethe case may be, and and: (i) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Transaction Entities Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse EffectEffect or that are otherwise specifically disclosed in the Registration Statement, the General Disclosure Package and the Prospectus). No such action ; (ii) do not and will not result in any violation of (A) the provisions of the declaration of trust, charter, partnership agreement, limited liability company agreement, by-laws, certificate of limited partnership, agreement of limited partnership laws or similar other organizational document of any documents of the Transaction Entities Company or any Subsidiary; and (iii) do not and will not result in any violation of their 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 Transaction Entities Company or any of their Subsidiaries Subsidiary or any of their assets, properties or operations, operations (except in the case of this clause (Biii) only, for any such violation violations that would not reasonably be expected to result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities Company or any of their SubsidiariesSubsidiary.

Absence of Defaults and Conflicts. None of Neither the Transaction Entities, Company nor any of their --------------------------------- its Subsidiaries (i) is in violation of its charter, by-laws, certificate of formation, limited partnershipliability company agreement, agreement of limited partnership agreement, or similar other organizational document documents or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities Company or any of their its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities Company or any of their its Subsidiaries is subject (collectively, “"Agreements and Instruments”), ") except for such violations and defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement and the other Operative Documents International Purchase Agreement and the consummation of the transactions contemplated herein in this Agreement, the International Purchase Agreement and in the Registration Statement (including the Recapitalization (as defined in the Prospectuses), the Reorganization (as defined in the Prospectuses), the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and Prospectus Prospectuses under the caption “"Use of Proceeds”") and compliance by the Transaction Entities Company with their its obligations hereunder under this Agreement and thereunder the International Purchase Agreement have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities Company or any Subsidiary of its Subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to resultthat, singly or in the aggregate, would not result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, by-laws, certificate of formation, limited partnershipliability company agreement, agreement of limited partnership agreement, or similar other organizational document of any documents of the Transaction Entities Company or any of their its Subsidiaries or (B) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Transaction Entities Company or any of their its Subsidiaries or any of their assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities Company or any of their its Subsidiaries.

Absence of Defaults and Conflicts. None of the Transaction Entities, nor any of their Subsidiaries (i) The Fund is not in violation of its charter, agreement and declaration of trust or by-laws, certificate of limited partnership, agreement of limited partnership laws or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries it is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities or any of their Subsidiaries Fund is subject (collectively, “"Agreements and Instruments”), ") except for such violations or defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement, the Advisory Agreement, the Subadvisory Agreement, the Administration Agreement, the Custodian Agreement, the Investment Company Service Agreement and the other Operative Documents Expense Limitation Agreement referred to in the Registration Statement (as used herein, the "Advisory Agreement," the "Subadvisory Agreement," the "Administration Agreement," the "Custodian Agreement," the "Transfer Agency Agreement" and the "Expense Limitation Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and Prospectus under the caption “"Use of Proceeds”") and compliance by the Transaction Entities Fund with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, declaration of trust or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any laws of the Transaction Entities Fund, or any of their 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 Transaction Entities Fund or any of their Subsidiaries or any of their its assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities or any of their SubsidiariesFund.

Absence of Defaults and Conflicts. None of Neither the Transaction Entities, Company nor any of their its Subsidiaries (i) is in violation of its charter, partnership agreement, limited liability company agreement, by-laws, certificate of limited partnership, agreement of limited partnership laws or similar other organizational document documents or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities Company or any of their its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities Company or any of their Subsidiaries Subsidiary is subject (collectively, “Agreements and Instruments”), ) except for such defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The Effect or that are otherwise specifically disclosed in the Registration Statement, the General Disclosure Package and the Prospectus; and the execution, delivery and performance of this Agreement or, if and to the other Operative Documents extent applicable, of any Terms Agreement and the consummation of the transactions contemplated herein or, if and to the extent applicable, in any Terms Agreement and in the Registration Statement or the Prospectus (including the issuance and sale of the Shares and the Private Placement Shares and the use of the proceeds from the sale of the Shares as described in the General Disclosure Package and Prospectus therein under the caption “Use of Proceeds”) and compliance by the Transaction Entities Company with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, action and (i) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Transaction Entities Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse EffectEffect or that otherwise are described in the Registration Statement, the General Disclosure Package and the Prospectus). No such action , (ii) do not and will not result in any violation of (A) the provisions of the charter, partnership agreement, limited liability company agreement, by-laws, certificate of limited partnership, agreement of limited partnership laws or similar other organizational document of any documents of the Transaction Entities Company or any of their Subsidiaries Subsidiary, or (Biii) do not and will not result in a violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Transaction Entities Company or any of their Subsidiaries Subsidiary or any of their assets, properties or operations, operations (except in the case of this clause (Biii) only, for any such violation violations that would not reasonably be expected to result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities Company or any of their SubsidiariesSubsidiary.

Absence of Defaults and Conflicts. None of Neither the Transaction Entities, Company nor --------------------------------- any of their Subsidiaries (i) its subsidiaries is in violation of its charter, charter or by-laws, certificate of limited partnership, agreement of limited partnership laws or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities Company or any of their Subsidiaries its subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities Company or any of their Subsidiaries its subsidiaries is subject (collectively, “"Agreements and Instruments”"), except for such defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The execution, delivery and performance of this Underwriting Agreement and the applicable Terms Agreement and any other Operative Documents agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the actions contemplated hereby or thereby or in the Registration Statement and the Prospectus and the consummation of the transactions actions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Shares and the Private Placement Shares Underwritten Securities and the use of the proceeds from the sale of the Shares Underwritten Securities as described in the General Disclosure Package and Prospectus under the caption “"Use of Proceeds”") and compliance by the Transaction Entities Company with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities Company or any Subsidiary of its subsidiaries pursuant to, the any Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events defaults, events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No ) nor will such action will result in any violation of (A) the provisions of the charter, charter or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any laws of the Transaction Entities Company or any of their Subsidiaries its subsidiaries or (B) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Transaction Entities Company or any of their Subsidiaries if its subsidiaries or any of their assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities Company or any of their Subsidiariesits subsidiaries.

Absence of Defaults and Conflicts. None of the Transaction Entities, nor any of their Subsidiaries (i) The Company is not in violation of its charter, by-laws, certificate of limited partnership, agreement of limited partnership charter or similar organizational document bylaws or (ii) is in default (or with the giving of notice or lapse of time would be in default) in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries Company is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities or any of their Subsidiaries Company is subject (collectively, “"Agreements and Instruments”), ") except for such defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The Company's execution, delivery and performance of this Agreement and the other Operative Documents and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and Prospectus under the caption “"How We Intend to Use the Proceeds of Proceeds”This Offering") and compliance by the Transaction Entities Company with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities or any Subsidiary Company pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or defaults, liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, by-laws, certificate of limited partnership, agreement of limited partnership charter or similar organizational document of any bylaws of the Transaction Entities Company or any of their 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 Transaction Entities Company or any of their Subsidiaries or any of their its assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities or any of their SubsidiariesCompany.

Absence of Defaults and Conflicts. None of Neither the Transaction Entities, Company nor any of their Subsidiaries (i) Subsidiary is in violation of its charter, charter or by-laws, certificate of limited partnership, agreement of limited partnership laws or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities Company or any of their Subsidiaries Subsidiary is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities Company or any of their Subsidiaries Subsidiary is subject (collectively, “Agreements and Instruments”), ) except for such defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the issuance and delivery of the Securities and the Exchange Securities, and the execution, delivery and performance of this Agreement, the Indenture, the Registration Rights Agreement, the DTC Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the other Operative Documents Company in connection with the transactions contemplated hereby or thereby or in the Offering Memorandum and compliance by the Company with its obligations thereunder, and the consummation of the transactions contemplated herein or therein and in the Registration Statement Offering Memorandum (including the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities and the borrowings under the Senior Credit Facility as described in the General Disclosure Package and Prospectus Offering Memorandum under the caption “Use of Proceeds”) and compliance by the Transaction Entities with their obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to resultthat, singly or in the aggregate, would not result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, charter or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any laws of the Transaction Entities Company or any of their 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 Transaction Entities Company or any of their Subsidiaries Subsidiary or any of their assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities Company or any of their SubsidiariesSubsidiary.

Absence of Defaults and Conflicts. None of the Transaction Entities, nor Aladdin Parties or any of their Subsidiaries (i) subsidiaries is in violation of its charter, by-laws, certificate of limited partnership, agreement of limited partnership laws or similar any other organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries it is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties its property or assets of the Transaction Entities or any of their Subsidiaries is subject (collectively, “"Agreements and Instruments”), ") except for such defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement Agreement, the Units, the Series A Notes, the Series B Notes, the Indenture, the Note Registration Rights Agreements, the Warrant Agreement, the Warrants, the Warrant Registration Rights Agreements, the Executed Transaction Documents to the extent that any of the Aladdin Parties is a party, the Executory Transaction Documents to the extent that any of the Aladdin Parties will be a party and any other agreement or instrument entered into or issued or to be entered into or issued by any of the other Operative Documents Aladdin Parties or any of their subsidiaries 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 the issuance and sale of the Shares and the Private Placement Shares Units and the use of the proceeds from the sale of the Shares Units as described in the General Disclosure Package and Prospectus Offering Memorandum under the caption “"Use of Proceeds”") and compliance by any of the Transaction Entities Aladdin Parties with their obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 or, except with respect to the transactions contemplated by the Offering Memorandum, result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of any of the Transaction Entities Aladdin Parties or any Subsidiary of their subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to resultthat, singly or in the aggregate, would not result in a Material Adverse Effect). No , nor will such action will execution, delivery, performance or compliance result in any violation of (A) the provisions of the charter, by-laws, certificate of limited partnership, agreement of limited partnership laws or similar any other organizational document of any of the Transaction Entities such Aladdin Party or any of their Subsidiaries or (B) such subsidiary or, except as would not 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 Transaction Entities it or any of their Subsidiaries or any of their assets, properties or operations, except in the case of clause (B) only, for any such violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities or any of their Subsidiaries.of

Absence of Defaults and Conflicts. None of the Transaction Entities, nor any of their Subsidiaries (i) The Fund is not in violation of its charter, agreement and declaration of trust or by-laws, certificate of limited partnershipeach as amended from time to time, agreement of limited partnership or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries it is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties property or assets of the Transaction Entities or any of their Subsidiaries Fund is subject (collectively, “"Agreements and Instruments”), ") except for such violations or defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement, the Investment Management Agreement, the Administrative Services Agreement, the Custodian Agreement and the other Operative Documents Transfer Agency and Service Agreement referred to in the Registration Statement (as used herein, the "Investment Management Agreement," the "Administrative Services Agreement," the "Custodian Agreement" and the "Transfer Agency and Service Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Shares and the Private Placement Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and Prospectus under the caption “"Use of Proceeds”") and compliance by the Transaction Entities Fund with their its obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, 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 Transaction Entities or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, result in a Material Adverse Effect). No , nor will such action will result in any violation of (A) the provisions of the charter, agreement and declaration of trust or by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of any laws of the Transaction Entities Fund, each as amended from time to time, or any of their 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 Transaction Entities Fund or any of their Subsidiaries or any of their its assets, properties or operations, other than State securities or "blue sky" laws applicable in connection with the purchase and distribution of the Securities by the Underwriters pursuant to this Agreement and except in the case of clause (B) only, for any such violation violations that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Transaction Entities or any of their SubsidiariesFund.

Absence of Defaults and Conflicts. None of the Transaction Entities, nor any of their Subsidiaries (i) The Trust is not in violation of its charter, by-laws, certificate of limited partnership, agreement of limited partnership trust or similar organizational document or (ii) is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Transaction Entities or any of their Subsidiaries Trust is a party or by which it or any of them may be bound, bound or to which any of the Properties or any other properties property or assets of the Transaction Entities or any of their Subsidiaries Trust is subject (collectively, “Agreements and Instruments”the "TRUST AGREEMENTS AND INSTRUMENTS"), except for such violations or defaults that would not reasonably be expected to result, singly or in the aggregate, result in a Trust Material Adverse Effect. The ; and the execution, delivery and performance of this Agreement, the Indenture, the Notes, the Trust Agreement, each Series Trust Supplement, each Funding Agreement, the Administration Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the other Operative Documents and Trust in connection with the transactions contemplated by the Prospectus, the consummation of the transactions contemplated herein and in the Registration Statement Prospectus (including the issuance and sale of the Shares and the Private Placement Shares Notes and the use of the proceeds from the sale of the Shares therefrom as described in the General Disclosure Package and Prospectus under Prospectus) (collectively, the caption “Use of Proceeds”"PROGRAM DOCUMENTS") and the compliance by the Transaction Entities Trust with their its obligations hereunder and thereunder under the Program Documents, have been duly authorized by all necessary corporate or limited partnership action, as applicable, action and do not and will not, whether with or without the giving of notice or the passage of time or both, conflict with or constitute a breach of, or default or Repayment Event event or condition which gives the holder of any note, debenture or other evidence of indebtedness (as defined belowor any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Trust under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of any Series Trust or the Transaction Entities or any Subsidiary Trust pursuant to, the any Trust Agreements and Instruments (except for such conflictsInstruments, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result, singly or in the aggregate, in a Material Adverse Effect). No nor will such action will result in any violation of (A) the provisions of the charter, by-laws, Trust's certificate of limited partnershiptrust, agreement of limited partnership or similar organizational document of any of the Transaction Entities Trust Agreement or any Series Trust Supplement which may reasonably be expected to result in a Trust Material Adverse Effect and the Trust is not in default in the performance or observance of their 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 Transaction Entities Trust or any of their Subsidiaries or any of their its assets, properties or operations, except in the case of clause (B) only, for any such violation that defaults which would not reasonably be expected to result in a Trust 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 Transaction Entities or any of their Subsidiaries.