Common use of Absence of Defaults and Conflicts Clause in Contracts

Absence of Defaults and Conflicts. The Fund is not in violation of its charter or by-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it is a party or by which it may be bound, or to which any of the property or assets of the Fund is subject (collectively, “AGREEMENTS AND INSTRUMENTS”) except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the 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 “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated in the Offering Agreements and in the Registration Statement (including the issuance and sale of the 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 Fund with its obligations thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws of the Fund or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund or any of its assets, properties or operations (except for such violations that would not result in a Material Adverse Effect). As used herein, a “REPAYMENT EVENT” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Fund.

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

Absence of Defaults and Conflicts. The Fund Neither the Depositor nor NMAC is not in violation of its organizational or charter documents, bylaws, or by-lawsthe Depositor LLC Agreement, as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material agreement, contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it is a party or by which it or its properties or assets may be bound, which would have a material adverse effect on the Depositor’s or NMAC’s ability to which any of perform its respective obligations under the property Basic Documents or assets of on the Fund is subject (collectively, “AGREEMENTS AND INSTRUMENTS”) except for such violations validity or defaults that would not result in a Material Adverse Effect; and the enforceability thereof. 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 Fund Accounting Servicing Agreement referred to in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) and the consummation by each of the transactions contemplated in Depositor or NMAC, as the Offering Agreements case may be, of the Basic Documents, and in the Registration Statement (including the issuance and sale of the 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”) Notes and compliance by with the Fund with its obligations thereunder have been duly authorized by all necessary corporate action terms and do not and provisions thereof will not, whether with subject to obtaining any consents or without approvals as may be required under the giving securities or “blue sky” laws of notice various jurisdictions, (i) result in a breach or passage violation of time or bothany of the terms and provisions of, conflict with or constitute a breach ofdefault under, any statute, rule, regulation, or order of any governmental agency or body or any court having jurisdiction over the Depositor or NMAC or their respective properties or any agreement or instrument to which either is a party or by which either is bound or to which any of their respective properties are subject, except where such breach, violation, or default would not have a material adverse effect on the transactions contemplated herein or Repayment Event on the Depositor’s or NMAC’s respective ability to perform its obligations under the Basic Documents, (as defined belowii) under, conflict with the Depositor’s or NMAC’s charter or bylaws or (iii) result in the creation or imposition of any lien, charge or encumbrance Lien (except as permitted by the Basic Documents) upon any of the Depositor’s or NMAC’s property or assets is subject, except for Liens that, individually or in the aggregate, will not have a material adverse effect on either of the Fund pursuant to, Depositor’s or NMAC’s ability to perform its respective obligations under the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws of the Fund or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund or any of its assets, properties or operations (except for such violations that would not result in a Material Adverse Effect). As used herein, a “REPAYMENT EVENT” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundBasic Documents.

Absence of Defaults and Conflicts. The Fund Company is not in violation of its charter or by-lawsCertificate of Incorporation, as amended (the “Charter”), or Bylaws, as amended (the “Bylaws”); none of the Subsidiaries is in violation of its charter, bylaws or other organizational documents and neither the Company nor any of its Subsidiaries is in 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 it the Company or any of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Company or any Subsidiary is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) ), or in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except for such violations or defaults that would not not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect; 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 Fund Accounting Servicing Agreement referred to in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) Indenture and the consummation of the transactions contemplated in the Offering Agreements herein and therein, and in the Registration Statement (including the issuance and sale of the 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 Fund Company with its obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect), ; nor will such action result in any violation of the provisions of the charter Charter or by-laws Bylaws of the Fund Company or the charter, bylaws or other organizational document of any Subsidiary; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any Subsidiary or any of its their assets, properties or operations (except for such violations that would not not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect). As used herein, a “REPAYMENT 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 FundCompany or any Subsidiary.

Absence of Defaults and Conflicts. The Fund None of the Company nor any of the Guarantors is not in violation of its limited partnership agreement, articles, charter or by-laws, by laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease lease, license or other agreement or instrument to which it any of the Company or the Guarantors is a party or by which it or any of them may be bound, or to which any of the Company or the Guarantors or the property or assets of any of the Fund Company or the Guarantors is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) ), except for such violations or defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, the Investment Advisory AgreementSecurities, 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 “OFFERING AGREEMENTS”) Indenture and the consummation of the transactions contemplated in the Offering Agreements therein and in the Registration Statement Disclosure Package and the Prospectus (including the issuance authorization, issuance, sale and sale delivery of the 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 each of the Fund Company and the Guarantors with its obligations thereunder have hereunder has been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of any of the Fund Company or the Guarantors pursuant to, the Agreements and Instruments (except for such conflicts, breaches breaches, defaults or defaults Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of or conflict with the provisions of the limited partnership agreement, charter or by-by laws of any of the Fund Company or the Guarantors, the resolutions of the general partner, unitholders, shareholders, directors or any committee of directors of any of the Company or the Guarantors or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or instrumentality, court, domestic or foreign, or stock exchange having jurisdiction over any of the Fund Company or the Guarantors or any of its their assets, properties or operations (except for such violations or conflicts that would not result in a Material Adverse Effect). As used herein, a “REPAYMENT EVENTRepayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by any of the FundCompany or the Guarantors.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its Significant Subsidiaries is not in violation of its charter or by-laws, laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company or any of its Significant Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Company or any Significant Subsidiary is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, 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 Indenture, the Registration Statement (as used herein, individually issuance and sale of the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) Securities and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the 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 Fund Company with its obligations thereunder hereunder and under the Indenture and the Securities have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches breaches, defaults or defaults Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws of the Fund Company or any subsidiary or, except for such violations that would not result in a Material Adverse Effect, any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any subsidiary or any of its their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. 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 FundCompany or any subsidiary.

Absence of Defaults and Conflicts. The Fund is not in violation of its charter declaration of trust or by-laws, each as amended from time to time, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it is a party or by which it may be bound, or to which any of the property or assets of the Fund is subject (collectively, “AGREEMENTS AND INSTRUMENTS”"Agreements and Instruments") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Management Agreement, the Sub-Advisory Agreement, the Custody Administration and Accounting Services Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Custodian Services Agreement and the Fund Accounting Servicing Transfer Agency Services Agreement referred to in the Registration Statement (as used herein, individually the “Investment "Management Agreement," the "Sub-Advisory Agreement,” " the “Custody "Administration Agreement,” " the “Stock "Custodian Agreement" and the "Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”" respectively) and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the 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 Fund with its obligations thereunder hereunder have been duly authorized by all necessary corporate action Fund actions and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter declaration of trust or by-laws of the Fund Fund, each as amended from time to time, or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund or any of its assets, properties or operations (operations, except for such violations that would not 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 of all or a portion of such indebtedness by the Fund.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its subsidiaries is not in violation of its charter or by-laws, laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property assets, properties or assets operations of the Fund Company or any of its subsidiaries is subject (collectively, “AGREEMENTS AND INSTRUMENTS”) "Agreements and Instruments"), except for such violations or defaults that would could not reasonably be expected to result in a Material Adverse Effect; and the . The execution, delivery and performance of this Underwriting Agreement, the Investment Advisory Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing applicable Terms Agreement and the Fund Accounting Servicing Agreement referred Indenture and any other agreement or instrument entered into or issued or to be entered into or issued by the Company and each Initial Guarantor in connection with the transactions contemplated hereby or thereby or in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) Prospectus and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement and the Prospectus (including the issuance and sale of the 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 the Prospectus under the caption “"Use of Proceeds”" in the Prospectus relating to such Underwritten Securities) and compliance by the Fund Company and each Initial Guarantor with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Fund Company or any of its subsidiaries pursuant to, the any Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect)Instruments, nor will such action result in any violation of the provisions of the charter or by-laws of the Fund Company or any of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any of its subsidiaries or any of their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. As used herein, a “REPAYMENT EVENT” "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany or any of its subsidiaries.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its Subsidiaries is not in violation of its charter or by-laws, laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company or any of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Company or any Subsidiary is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, 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 “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the 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 Fund Company with its obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults defaults, Repayment Events, or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws of the Fund Company or any Subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any Subsidiary or any of its their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. 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 FundCompany or any Subsidiary.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of the Subsidiaries is not in violation of its charter or charter, by-lawslaws or other organizational documents. Further, or neither the Company nor any of the Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company or any of the Subsidiaries is a party or by which it any of them may be bound, or to which any of the property or assets of the Fund Company or any of the Subsidiaries is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture, the Underwritten Securities, the Warrant Agreement, if applicable, the Investment Advisory Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Agreement and the Fund Accounting Servicing Administration Agreement referred to in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated in the Offering Agreements herein and therein and in the Registration Statement and General Disclosure Package (including the issuance and sale of the 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, if applicable, the issuance of the shares of Common Stock upon conversion of the Securities) and compliance by the Fund Company with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, (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 Fund Company or any of the Subsidiaries pursuant to, the Agreements and Instruments (Instruments, except for such conflicts, breaches or breaches, defaults or liens, charges or encumbrances Repayment Events that would not result in a Material Adverse Effect), or (B) conflict with or constitute a breach of, or default under, any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which Ares Management LLC (“Ares”) is a party or by which ▇▇▇▇ may be bound, or to which any of the property or assets of Ares is subject, or the limited partner agreement or other governing documents of any fund managed by, advised by or affiliated with Ares, except for such conflicts, breaches or defaults that would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the charter or charter, by-laws or other organizational documents of the Fund Company or any of the Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any of its the Subsidiaries or any of their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. 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 FundCompany or any of the Subsidiaries.

Absence of Defaults and Conflicts. The Fund is not in violation of its charter articles of incorporation or by-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it is a party or by which it may be bound, or to which any of the property or assets of the Fund is subject (collectively, “AGREEMENTS AND INSTRUMENTS”"Agreements and Instruments") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Agreement and the Fund Accounting Servicing Administration Agreement referred to in the Registration Statement Statement, the Custodian Services Agreement, dated as of January 28, 2003 between the Fund and PFPC Trust Company, and the Transfer and Dividend Disbursing Agent and Registrar Agreement, dated as of January 28, 2003 between the Fund and PFPC, Inc., (as used herein, individually the “Investment "Advisory Agreement,” " the “Custody "Administration Agreement,” " the “Stock "Custodian Services Agreement" and the "Transfer Agency And Registrar Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”" respectively) and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the 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 Fund with its obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter articles of incorporation or by-laws of the Fund or Fund, nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund or any of its assets, properties or operations (operations, except for such violations that would not result in a Material Adverse Effect). As used herein, a “REPAYMENT EVENT” "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Fund.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any Subsidiary is not in violation of its charter charter, bylaws or by-laws, other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreementagreement (including any Credit Facility), note, lease or other agreement or instrument to which it the Company or any Subsidiary is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Company or any Subsidiary, is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) except for such violations or defaults defaults, singly or in the aggregate, that are not resulting or would not reasonably be expected to result in a Material Adverse EffectChange; 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 Fund Accounting Servicing Agreement referred to in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement Statement, the Pricing Disclosure Package and the Prospectus (including the issuance and sale of the Shares and Public Securities by 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”Company) and compliance by the Fund Company with its obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both: (A) result in any violation of the provisions of the Company’s articles of incorporation (the “Charter”), the Company’s Certificate of Designation 7.75% Series A Cumulative Convertible Preferred Shares (the “Certificate of Designation”) or the Company’s bylaws (the “Bylaws”) or any other organization document of the Company or any Subsidiary, or (B) conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or breaches, defaults, Repayment Events, liens, charges or encumbrances that are not, singly or in the aggregate, resulting or would not reasonably be expected, singly or in the aggregate, to result in a Material Adverse EffectChange), nor will such action or result in any violation of the provisions of the charter or by-laws of the Fund or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality instrumentality, self-regulatory organization or other non-governmental regulatory authority (including without limitation, the rules and regulations of the NASDAQ Stock Market (“Nasdaq”)) or court, domestic or foreign, having jurisdiction over the Fund Company or any Subsidiary or any of its their assets, properties or operations (operations, except for such violations that are not resulting or would not reasonably be expected to result in a Material Adverse Effect)Change. 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 FundCompany or any Subsidiary.

Absence of Defaults and Conflicts. The Fund Neither the Company nor MIE is not in violation of its charter or by-laws, Organizational Documents (as defined below) or in default (or with the giving of notices or lapse of time would be 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 it the Company or MIE is a party or by which it either of them may be bound, or to which any of the property or assets of the Fund Company or MIE is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) ), except for such violations or defaults that would not not, individually or in the aggregate, result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, 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 hereinDeposit Agreement, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated in the Offering Agreements herein or therein and in the Registration Statement (including the issuance and sale of the Securities and Ordinary Shares underlying the Securities and the use of the proceeds from the sale of the Shares Securities as described in the Statutory Prospectus included in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Fund Company with its obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or MIE pursuant to, the Agreements and Instruments (except for such conflicts, breaches breaches, defaults or defaults Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws Organizational Documents of the Fund Company or MIE or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or MIE or any of its their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. As used herein, a “REPAYMENT EVENTOrganizational Documents” means, with respect to any person, the memorandum of association, articles of association or other organizational documents of such entity and any amendments thereto. A “Repayment Event” means any event or condition which that gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany or MIE.

Absence of Defaults and Conflicts. The Fund is not in violation of its charter Charter or by-lawsbylaws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it is a party or by which it may be bound, or to which any of the property or assets of the Fund is subject (collectively, “AGREEMENTS AND INSTRUMENTS”"Agreements and Instruments") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Management Agreement, the Custody Administration Agreement, the Custodian Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Agreement and the Fund Accounting Servicing Auction Agency Agreement referred to in the Registration Statement (as used herein, individually the “Investment Advisory "Management Agreement,” " the “Custody "Administration Agreement,” " the “"Custodian Agreement" the "Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” " and the “Fund Accounting Servicing "Auction Agency Agreement,” respectively and collectively the “OFFERING AGREEMENTS”" respectively) and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the Shares AMPS and the use of the proceeds from the sale of the Shares AMPS as described in the General Disclosure Package and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Fund with its obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter Charter or by-laws bylaws of the Fund or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund or any of its assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. As used herein, a “REPAYMENT EVENT” "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Fund.

Absence of Defaults and Conflicts. The Fund Neither the Company nor the Subsidiary is not in violation of its charter declaration of trust (“Original Declaration of Trust”) or by-lawsbylaws (“Original Company Bylaws”), in the case of the Company, or its certificate of formation, limited liability company agreement (the “Subsidiary LLC Agreement”) or bylaws (“Subsidiary Bylaws”), in the case of the Subsidiary, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company or the Subsidiary is a party or by which it may be bound, or to which any of the property or assets of the Fund Company or the Subsidiary is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) ), except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, 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 “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the 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 Fund Company with its obligations thereunder hereunder have been duly authorized by all necessary corporate 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 Fund Company or the Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches breaches, defaults or defaults Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws Original Declaration of Trust, the Original Company Bylaws, the amended and restated declaration of trust of the Fund Company, as effective at the Closing Time (“Amended Declaration of Trust”), the amended and restated bylaws of the Company, as effective at the Closing Time (“Amended Company Bylaws”), the Subsidiary LLC Agreement, the Subsidiary Bylaws or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or the Subsidiary or any of its their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. 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 FundCompany or the Subsidiary.

Absence of Defaults and Conflicts. The Fund is not in violation of its charter declaration of trust or by-laws, each as amended from time to time, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it is a party or by which it may be bound, or to which any of the property or assets of the Fund is subject (collectively, “AGREEMENTS AND INSTRUMENTS”"Agreements and Instruments") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Management Agreement, each Sub-Advisory Agreement, the Custody Administration and Accounting Services Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Custodian Services Agreement and the Fund Accounting Servicing Transfer Agency Services Agreement referred to in the Registration Statement (as used herein, individually the “Investment Advisory "Management Agreement,” " the “Custody "Sub-Advisory Agreements," the "Administration Agreement,” " the “Stock "Custodian Agreement" and the "Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”" respectively) and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the 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 Fund with its obligations thereunder hereunder have been duly authorized by all necessary corporate action Fund actions and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter declaration of trust or by-laws of the Fund Fund, each as amended from time to time, or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund or any of its assets, properties or operations (operations, except for such violations that would not 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 of all or a portion of such indebtedness by the Fund.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its subsidiaries is not (i) in violation of its charter charter, memorandum of association or bybye-lawslaws or similar governing document, as applicable, (ii) in default, and no event has occurred which, with notice or in default lapse of time or both, would constitute such a default, in the due performance or observance of any term, obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it is a party or by which it may be bound, is bound or to which any of the property its properties or assets of the Fund is may be subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) or (iii) in violation of any law, ordinance, governmental rule, regulation or court decree to which it or its property or assets may be subject, except with respect to (ii) or (iii), for any such violations or defaults that would not result be reasonably likely, singly or in the aggregate, to have a Material Adverse Effect; 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 Indenture 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 “OFFERING AGREEMENTS”) Securities and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the 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 Fund Company and the Guarantor with its their respective obligations thereunder hereunder and under the Indenture and the Securities have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, (i) conflict with or constitute result in a breach or violation of any of the terms or provisions of, or constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any subsidiary pursuant to, the Agreements and Instruments Instruments, (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action ii) result in any violation of the provisions of the charter charter, memorandum of association or bybye-laws (or similar governing document) of the Fund Company or any of its subsidiaries or (iii) result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any subsidiary or any of its their assets, properties or operations (operations; except for such violations that would conflict, breach, violation or default which would, for purposes of clauses (i) and (iii) above, either individually or in the aggregate, not result in have 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 FundCompany or any subsidiary.

Absence of Defaults and Conflicts. The Fund is not (i) in violation of its charter declaration of trust or by-laws, or (ii) 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 it is a party or by which it may be bound, or to which any of the property or assets of the Fund is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) except except, with respect to this clause (ii), for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the 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 “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated in the Offering Agreements this Agreement and in the Registration Statement (including the issuance and sale of the 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 Fund with its obligations thereunder have been duly authorized by all necessary corporate 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 Fund pursuant to, the Investment Management Agreement, between the Fund and the Adviser, dated November 13, 2007 (the “Investment Management Agreement”), the Amended and Restated Master Custodian Agreement, between the Fund and State Street Bank and Trust Company, dated February 25, 2005 (the “Custody Agreement”), and the Transfer Agency and Service Agreement, between the Fund and State Street Bank and Trust Company, dated October 7, 2002 (the “Transfer Agency Agreement”, and collectively with the Investment Management Agreement and Custody Agreement, the “Fund Agreements”) and the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter declaration of trust or by-laws of the Fund or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund or any of its assets, properties or operations (except for such violations that would not result in a Material Adverse Effect). As used herein, a “REPAYMENT EVENTRepayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Fund.

Absence of Defaults and Conflicts. The Fund is not in violation of the Articles or its charter Bylaws, each as amended or by-lawssupplemented to date, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Fund is a party party, including each of the Fund Agreements, or by which it may be bound, or to which any of the property or assets of the Fund is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) except for such violations or defaults that would not not, individually or in the aggregate, result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory AgreementAgreement dated as of May 9, 2013, as renewed on April 24, 2018, the Custody AgreementAdministration Agreement dated as of May 9, 2013, as renewed on April 24, 2018 and the Stock Custodian Agreement dated as of October 5, 2012 and the Transfer Agency Agreementand Services Agreement dated as of May 9, the Fund Administration Servicing Agreement and the Fund Accounting Servicing Agreement 2013, referred to in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Administration Agreement,” the “Stock Transfer Agency Custody Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Transfer Agency Agreement,” respectively and collectively the “OFFERING AGREEMENTSFund Agreements”) and the consummation of the transactions contemplated in this Agreement, the Offering Fund Agreements and in the Registration Statement (including the issuance and sale of the 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 Fund with its obligations thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or breaches, defaults or liens, charges or encumbrances that would not not, individually or in the aggregate, result in a Material Adverse Effect), nor will such action result in (i) any violation of the provisions of the charter Articles or by-laws Bylaws of the Fund or (ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund or any of its assets, properties or operations operations, except with respect to (except ii) only, for such violations that would not not, individually or in the aggregate, 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 Fund.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any Subsidiary is not in violation of its charter charter, bylaws or by-laws, other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreementagreement (including any Credit Facility), note, lease or other agreement or instrument to which it the Company or any Subsidiary is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Company or any Subsidiary, is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) except for such violations or defaults defaults, singly or in the aggregate, that are not resulting or would not reasonably be expected to result in a Material Adverse EffectChange; 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 Fund Accounting Servicing Agreement referred to in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement Statement, the Pricing Disclosure Package and the Prospectus (including the issuance and sale of the Shares and Public Securities by 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”Company) and compliance by the Fund Company with its obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both: (A) result in any violation of the provisions of the Company’s articles of incorporation (the “Charter”), the Company’s Certificate of Designation 8.25% Series A Cumulative Redeemable Perpetual Preferred Shares (the “Certificate of Designation”) or the Company’s bylaws (the “Bylaws”) or any other organization document of the Company or any Subsidiary, or (B) conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or breaches, defaults, Repayment Events, liens, charges or encumbrances that are not, singly or in the aggregate, resulting or would not reasonably be expected, singly or in the aggregate, to result in a Material Adverse EffectChange), nor will such action or result in any violation of the provisions of the charter or by-laws of the Fund or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality instrumentality, self-regulatory organization or other non-governmental regulatory authority (including without limitation, the rules and regulations of the NASDAQ Stock Market (“Nasdaq”)) or court, domestic or foreign, having jurisdiction over the Fund Company or any Subsidiary or any of its their assets, properties or operations (operations, except for such violations that are not resulting or would not reasonably be expected to result in a Material Adverse Effect)Change. 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 FundCompany or any Subsidiary.

Absence of Defaults and Conflicts. The Fund Company is not in violation of its Charter or By-laws; none of the Subsidiaries is in violation of its charter or by-laws, or bylaws and neither the Company nor any of its Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company or any of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Company or any Subsidiary is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) except for such violations or defaults that would not not, singly or in the aggregate, result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Agreement and the Fund Accounting Servicing Deposit Agreement referred to in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated in the Offering Agreements herein and therein, and in the Registration Statement (including the issuance and sale of the 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 Fund Company with its obligations thereunder hereunder and under the Deposit Agreement have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result result, singly or in the aggregate, in a Material Adverse Effect), ; nor will such action result in any violation of the provisions of the Charter or By-laws of the Company or the charter or by-laws of the Fund or any Subsidiary; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality governmental agency or body or court, domestic or foreignforeign (each a “Governmental Entity”), having jurisdiction over the Fund Company or any Subsidiary or any of its their assets, properties or operations (except for such violations that would not result result, singly or in the aggregate, 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 FundCompany or any Subsidiary.

Absence of Defaults and Conflicts. The Fund Neither the Company nor its consolidated subsidiary is not (A) in violation of its charter articles of incorporation or by-lawsbylaws, each as amended, or (B) 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 it the Company or its consolidated subsidiary is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Company or its consolidated subsidiary is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) ), except for any such violations or defaults with respect to this clause (B) that would not result in a Material Adverse Effect; 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 Indenture and the Fund Accounting Servicing Agreement referred to in the Registration Statement (as used hereinSecurities, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the 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 Fund Company with its obligations thereunder hereunder and under the Indenture and the Securities have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or a Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or its consolidated subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of (I) the charter articles of incorporation or by-laws bylaws, each as amended, of the Fund Company or its consolidated subsidiary, or (II) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or its consolidated subsidiary or any of its their assets, properties or operations (operations, except for any such violations that with respect to this clause (II) as would not not, individually or in the aggregate, 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 FundCompany or its consolidated subsidiary.

Absence of Defaults and Conflicts. The Fund is not in violation of its charter agreement and declaration of trust or by-laws, each as amended from time to time, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it is a party or by which it may be bound, or to which any of the property or assets of the Fund is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory AgreementAgreement dated as of [•], the Custody Agreement, the Stock Transfer Agency Agreement, 2007 between the Fund Administration Servicing Agreement and the Fund Accounting Servicing Agreement referred to in the Registration Statement Investment Adviser (as used herein, individually the “Investment Advisory Agreement,” ”), the Amended and Restated Master Custodian Agreement dated as of February 25, 2005 and effective as of [•], 2007, between the Fund and State Street Bank and Trust Company (the “Custody Custodian Agreement,” ”) and the Shareholder Transfer Agency and Service Agreement dated as of October 7, 2002 and effective as of [•], 2007, between the Fund and State Street Bank and Trust Company (the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) and any other material agreements and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the 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 Fund with its obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter agreement and declaration of trust or by-laws of the Fund Fund, each as amended from time to time, or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund or any of its assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. 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 Fund.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its Subsidiaries is not in violation of its charter or by-laws, laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contractcontract (including, but not limited to, the Amended and Restated Delta Connection Agreement, dated as of September 8, 2005, by and between SkyWest Airlines, Inc. and Delta Air Lines, Inc., the Second Amended and Restated Delta Connection Agreement, dated as of September 8, 2005, by and between ASA and Delta Air Lines, Inc. and the United Express Agreement, dated as of July 31, 2003, as amended, by and between SkyWest Airlines, Inc. and United Air Lines, Inc.), indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company or any of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Company or any Subsidiary is subject (collectively, “AGREEMENTS AND INSTRUMENTS”"Agreements and Instruments") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the 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 “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the 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 Fund Company with its obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches breaches, defaults or defaults Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws of the Fund Company or any Subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any Subsidiary or any of its their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. As used herein, a “REPAYMENT EVENT” "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany or any Subsidiary.

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

Absence of Defaults and Conflicts. The Fund None of the Company or any of its subsidiaries is not (A) in violation of its respective charter or by-lawslaws or similar organizational documents; (B) in default, and no event has occurred that, with notice or in default lapse of time or both, would constitute such a default, in the due performance or observance of any obligation, agreementterm, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease agreement or other agreement or instrument to which it the Company or any of its subsidiaries is a party or by which it may be bound, the Company or any of its subsidiaries is bound or to which any of the property or assets of the Fund Company or any of its subsidiaries is subject subject; or (collectivelyC) in violation of any law or statute or any judgment, order, rule or regulation of the Commission or any other federal, state or local or other governmental or regulatory agency, authority or instrumentality or court or arbitrator (“AGREEMENTS AND INSTRUMENTSOther Agency”) except having jurisdiction over the Company or any of its subsidiaries or any of their respective properties, except, in the case of clauses (B) and (C) above, for any such violations default or defaults violation that would not not, individually or in the aggregate, result in a Material Adverse Effect; and the issuance and sale of the Securities, the execution, delivery and performance by the Company and each of the Guarantors of this Agreement, the Investment Advisory Registration Rights Agreement, the Custody AgreementIndenture, the Stock Transfer Agency AgreementSecurities and the Exchange Securities (including the related Guarantees), the Fund Administration Servicing Agreement issuance and performance of the Fund Accounting Servicing Agreement referred to in Guarantees by each of the Registration Statement (as used hereinGuarantors, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the General Disclosure Package and the Prospectus Offering Memorandum (including the offering, issuance and sale of the Securities pursuant to this Agreement and the use of the proceeds to the Company from the sale of the Securities as described therein under the caption “Use of Proceedsproceeds”) and compliance by the Fund Company and the Guarantors with its their respective obligations thereunder have been duly authorized by all necessary corporate action hereunder and under the Registration Rights Agreement, the Indenture, the Securities and the Exchange Securities (including the related Guarantees) do not and will not, whether with or without the giving of notice or passage of time or both, not (X) conflict with or constitute result in a breach or violation of any of the terms or provisions of, or constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any of its subsidiaries pursuant toto any indenture, note, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Agreements and Instruments Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action Y) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Fund Company or any applicable law, statute, rule, regulation, of its subsidiaries or (Z) result in the violation of any law or statute or any judgment, order, writ rule or decree regulation of the Commission or any government, government instrumentality or court, domestic or foreign, Other Agency having jurisdiction over the Fund Company or any of its subsidiaries or any of their respective properties or assets, properties except, in the case of clauses (X) and (Y) above, for any such conflict, breach or operations (except for such violations violation that would not not, individually or in the aggregate result in a Material Adverse Effect). As used herein, a “REPAYMENT EVENT” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Fund.

Absence of Defaults and Conflicts. The Fund Neither the Issuer nor any of its Subsidiaries is not in violation of its charter or by-laws, respective organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it any of them is a party or by which it any of them may be bound, or to which any of the property or assets of the Fund any of them is subject (collectively, “"AGREEMENTS AND INSTRUMENTS”) "), except for such violations or defaults that would not result in a Material Adverse Effect; and (A) the execution, delivery and performance of this Agreement, the Investment Advisory AgreementSecurities, the Custody AgreementExchange Indentures (if any Exchange Debentures are issued in exchange for Preferred Securities and such exchange does not cause any of the results described in clauses (1) and (2) below), the Stock Transfer Agency Agreement, the Fund Administration Servicing Agreement and the Fund Accounting Servicing Escrow Agreement referred to in by the Registration Statement (as used hereinIssuer, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) and the consummation by the Issuer of the transactions contemplated in the Offering Agreements herein and in the Registration Statement therein (including the issuance and sale by the Issuer of the Shares Preferred Securities and the use of the proceeds from the sale of the Shares Preferred Securities as described in the General Disclosure Package and the Prospectus under the caption “"Use of Proceeds”" and in accordance with the Escrow Agreement), (B) and compliance by the Fund Issuer with its obligations thereunder have been duly authorized hereunder and under the Securities, (C) compliance by all necessary corporate action the Issuer with its obligations under the Exchange Indentures (if any Exchange Debentures are issued in exchange for any Preferred Securities and do such exchange does not cause any of the results described in clauses (1) and (2) below), (D) compliance by the Issuer with its obligations under the Escrow Agreement and such other agreements to which it is or will notbe a party in connection with the transactions contemplated by this Agreement, (E) consummation of the Triton Acquisition, (F) the execution, delivery and performance of the Existing Credit Facility or the New Credit Facility, as applicable, and (G) the issuance and sale of the Convertible Preferred will not (1) whether with or without the giving of notice or the passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance Encumbrance upon any property or assets of the Fund any such entity or any of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances Encumbrances that would not result in a Material Adverse Effect), nor will such action ) or (2) result in any violation of (x) the provisions of the charter or by-laws respective organizational documents of the Fund Issuer or any of its Subsidiaries or (y) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Issuer or any of its Subsidiaries or any of their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect); PROVIDED, HOWEVER, that any obligation of the Issuer to redeem or offer to repurchase the Preferred Securities (including, without limitation, any Junior Stock Special Redemption) is subject to the restrictions set forth in the Minnesota Business Corporation Act and the terms of the Issuer's Articles of Incorporation, the Credit Facilities, the Senior COD, the Senior Indenture (if the Senior Exchange Debentures are issued), and the Indenture governing the Issuer's 9 5/8% Senior Subordinated Notes due 2008. As used herein, a “"REPAYMENT EVENT” " means any event or condition which that gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Fundany such entity or any of its subsidiaries.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of the Subsidiaries is not in violation of its charter or charter, by-lawslaws or other organizational documents. Further, or neither the Company nor any of the Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company or any of the Subsidiaries is a party or by which it any of them may be bound, or to which any of the property or assets of the Fund Company or any of the Subsidiaries is subject (collectively, “AGREEMENTS AND INSTRUMENTS”"Agreements and Instruments") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture, the Underwritten Securities, the Warrant Agreement, if applicable, the Investment Advisory Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Agreement and the Fund Accounting Servicing Administration Agreement referred to in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated in the Offering Agreements herein and therein and in the Registration Statement and General Disclosure Package (including the issuance and sale of the 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, if applicable, the issuance of the shares of Common Stock upon conversion of the Securities) and compliance by the Fund Company with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, (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 Fund Company or any of the Subsidiaries pursuant to, the Agreements and Instruments (Instruments, except for such conflicts, breaches or breaches, defaults or liens, charges or encumbrances Repayment Events that would not result in a Material Adverse Effect), or (B) conflict with or constitute a breach of, or default under, any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which Ares is a party or by which Ares may be bound, or to which any of the property or assets of Ares Management LLC ("Ares") is subject, or the limited partner agreement or other governing documents of any fund managed by, advised by or affiliated with Ares, except for such conflicts, breaches or defaults that would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the charter or charter, by-laws or other organizational documents of the Fund Company or any of the Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any of its the Subsidiaries or any of their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. As used herein, a “REPAYMENT EVENT” "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany or any of the Subsidiaries.

Absence of Defaults and Conflicts. The Fund None of the Company, the Operating Partnership, any subsidiary or any Property Partnership is not in violation of its charter or charter, by-laws, certificate of limited partnership or partnership agreement or other organizational document, as the case may be, or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it any such entity is a party or by which it or any of them may be bound, or to which any of its assets or the property Properties may be bound or assets of the Fund is are subject (collectively, “AGREEMENTS AND INSTRUMENTS”) "Agreements and Instruments"), except for such violations or defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Underwriting Agreement, the Investment Advisory Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing applicable Terms Agreement and each applicable Warrant Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the Fund Accounting Servicing Agreement referred to Company or the Operating Partnership in connection with the transactions contemplated hereby or thereby or in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) Prospectus and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement and the Prospectus (including the issuance and sale of the 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 the Prospectus under the caption “"Use of Proceeds”") and compliance by the Fund Company and the Operating Partnership with its their obligations hereunder and thereunder have been duly authorized by all necessary corporate action or partnership action, as the case may be, and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or 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 Fund Company, the Operating Partnership, any subsidiary or any Property Partnership pursuant to, the any Agreements and Instruments (Instruments, except for such conflicts, breaches or defaults breaches, defaults, events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or charter, by-laws of the Fund Company or the organizational documents of the Operating Partnership, any subsidiary or any Property Partnership or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company, the Operating Partnership, any subsidiary or any Property Partnership or any of its their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. As used herein, a “REPAYMENT EVENT” "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany, the Operating Partnership, any subsidiary or any Property Partnership.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its subsidiaries is not in violation of its charter or by-laws, laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Company or any subsidiary is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) except for such violations or defaults that would not reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory AgreementIndenture, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Agreement Securities 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 “OFFERING AGREEMENTS”) Pledged Bonds and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package any preliminary prospectus and the Prospectus under the caption “Use of Proceeds”) and compliance by the Fund Company with its obligations thereunder hereunder and under the Indenture, the Securities and the Pledged Bonds have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches breaches, defaults or defaults Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result in a Material Adverse Effect), nor will such action result in (x) any violation of the provisions of the charter or by-laws of the Fund Company or any subsidiary or (y) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any subsidiary or any of its their assets, properties or operations (except for such violations in the case of clause (y) 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 FundCompany or any subsidiary.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its subsidiaries is not (A) in violation of its charter or by-laws, laws or (B) 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 it the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Company or any subsidiary is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) ), except for such violations or defaults that would not result in have a Material Adverse Effect; 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 Fund Accounting Servicing Agreement referred to in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated in the Offering Agreements and in the Registration Statement herein (including the issuance and sale of the 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 Fund Company with its obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches breaches, defaults or defaults Repayment Events or liens, charges or encumbrances that would not result in have a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws of the Fund Company or any of its subsidiaries, any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any of its subsidiaries or any of their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. 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 FundCompany or any of its subsidiaries.

Absence of Defaults and Conflicts. The Fund Neither the Company, either of the Guarantors nor any of their respective subsidiaries is not (i) in violation of its charter charter, memorandum of association or bybye-lawslaws or similar governing document, as applicable, (ii) in default, and no event has occurred which, with notice or in default lapse of time or both, would constitute such a default, in the due performance or observance of any term, obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it is a party or by which it may be bound, is bound or to which any of the property its properties or assets of the Fund is may be subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) or (iii) in violation of any law, ordinance, governmental rule, regulation or court decree to which it or its property or assets may be subject, except with respect to (ii) or (iii), for any such violations or defaults that would not result be reasonably likely, singly or in the aggregate, to have a Material Adverse Effect; 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 Indenture 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 “OFFERING AGREEMENTS”) Securities and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the 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 Fund Company and the Guarantors with its their respective obligations thereunder hereunder and under the Indenture and the Securities have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, (i) conflict with or constitute result in a breach or violation of any of the terms or provisions of, or constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or either of the Guarantors or any of their respective subsidiaries pursuant to, the Agreements and Instruments Instruments, (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action ii) result in any violation of the provisions of the charter charter, articles or bymemorandum of association, organizational regulations or bye-laws (or similar governing document) of the Fund Company or either of the Guarantors or any of their respective subsidiaries or (iii) result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or either of the Guarantors or any of its their respective subsidiaries or any of their assets, properties or operations (operations; except for such violations that would conflict, breach, violation or default which would, for purposes of clauses (i) and (iii) above, either individually or in the aggregate, not result in have 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 FundCompany or either of the Guarantors or any of their respective subsidiaries.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its subsidiaries is not in violation of its charter or charter, by-laws, laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company or any of its subsidiaries is a party or by which it may be bound, bound or to which any of the property or assets of the Fund is Company or any of its subsidiaries may be subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) ), except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Agreement Indenture and the Fund Accounting Servicing Agreement referred Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” Disclosure Package and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) Prospectus and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement Disclosure Package and the Prospectus (including the issuance and sale of the 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 Fund Company with its obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or a Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that that, individually or in the aggregate, would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws of the Fund Company or any of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any of its subsidiaries or any of their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. 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 FundCompany or any of its subsidiaries.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its subsidiaries is not in violation of its charter or by-laws, laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Company or any of its subsidiaries is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) ), except for such violations or defaults that would not reasonably be expected to result in a Material Adverse Effect; 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 Indenture and the Fund Accounting Servicing Agreement referred Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the 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 Fund Company with its obligations thereunder hereunder and under the Indenture and the Securities have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches breaches, defaults or defaults Repayment Events or liens, charges or encumbrances that that, singly or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws of the Fund or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any of its subsidiaries or any of their assets, properties or operations (a “Government Entity”) except for such violations that would not reasonably be expected to result in a Material Adverse Effect), nor will any such action result in any violation of the provisions of the charter or by-laws of the Company or any Designated Subsidiary. 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 FundCompany or any of its subsidiaries.

Absence of Defaults and Conflicts. The Fund Neither the Guarantor nor the Company is not in violation of the provisions of its charter or by-laws, laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Guarantor or the Company is a party or by which it or any of them may be bound, bound or to which any of the property or assets of the Fund Guarantor or the Company is subject (collectively, “AGREEMENTS AND INSTRUMENTS”) the "Guarantor Agreements and Instruments"), except for such violations or defaults that would not result in a Guarantor Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, each Guarantee, each Funding Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the Investment Advisory AgreementPrincipal Entities in connection with the transactions contemplated by the Prospectus (collectively, the Custody Agreement"Principal Program Documents"), 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 “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated in by the Offering Agreements and in the Registration Statement Prospectus (including the issuance and sale of the Shares Notes and the use of the proceeds from the sale of the Shares therefrom as described in the General Disclosure Package Prospectus) and the Prospectus under the caption “Use of Proceeds”) and compliance by the Fund Principal Entities with its their respective obligations thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach ofbreach, violation or default which gives the holder of any note, debenture or Repayment Event other evidence of indebtedness (as defined belowor any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Guarantor or the Company under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Fund Guarantor or the Company pursuant to, the any Guarantor Agreements and Instruments (except for Instruments, except, in each case, to the extent such conflictsconflict, breaches breach, default, event or defaults or liens, charges or encumbrances that condition would not result in a Guarantor Material Adverse Effect), nor will such action actions result in any violation of the provisions of the charter or by-laws of the Fund Guarantor or the Company or, except to the extent such violation would not result in a Guarantor 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 Fund Guarantor or the Company or any of its their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect). As used herein, a “REPAYMENT EVENT” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Fundoperations.

Absence of Defaults and Conflicts. The Fund is not in violation of its charter declaration of trust or by-lawsbylaws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it is a party or by which it may be bound, or to which any of the property or assets of the Fund is subject (collectively, “AGREEMENTS AND INSTRUMENTS”"Agreements and Instruments") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Management Agreement, the Custody Administration Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Custodian Agreement and the Fund Accounting Servicing Transfer and Dividend Disbursing Agent and Registrar Agreement referred to in the Registration Statement (as used herein, individually the “Investment Advisory "Management Agreement,” " the “Custody "Administration Agreement,” " the “Stock "Custodian Agreement" and the "Transfer and Dividend Disbursing Agency and Registrar Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”" respectively) and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the 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 Fund with its obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter declaration of trust or by-laws bylaws of the Fund or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund or any of its assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. As used herein, a “REPAYMENT EVENT” "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Fund.

Absence of Defaults and Conflicts. The Fund Neither the Company nor --------------------------------- any of its subsidiaries is not in violation of its charter or by-laws, partnership agreement, limited liability company agreement or other similar organizational document or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreement or instrument to which it the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Company or any subsidiary is subject (collectively, “AGREEMENTS AND INSTRUMENTS”the "Agreements and Instruments") except for such violations or defaults that would not result in have a Material Adverse Effect; 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 Fund Accounting Servicing Agreement referred to in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) Purchase Agreements and the consummation of the transactions contemplated in the Offering Purchase Agreements and in the Registration Statement (including the sale to the Underwriters and public offering of the Securities, and the issuance and sale (if any) of the Shares Securities which the Underwriters have the option to purchase from the Company pursuant to the Purchase Agreements and the use of the proceeds from therefrom by the sale of the Shares Company as described in the General Disclosure Package and the Prospectus Prospectuses under the caption “"Use of Proceeds”") and compliance by the Fund Company with its obligations thereunder under the Purchase Agreements have been duly authorized by the Company by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any subsidiary pursuant to, any of the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not not, in the case of any Agreement or Instrument other than the Escrow Agreement (as defined below) and the Stock Purchase Agreement dated as of October 30, 1998 (the "Stock Purchase Agreement") among the Company, ▇▇▇▇▇▇ ▇▇▇▇ Foods, Inc. and the Webb Sellers, result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws laws, partnership agreement, limited liability company agreement or other similar organizational document of the Fund Company or any subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any subsidiary or any of its their respective assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. As used herein, a “REPAYMENT EVENT” "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany or any subsidiary.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its subsidiaries is not (i) in violation of its charter charter, memorandum of association or bybye-lawslaws or similar governing document, as applicable, (ii) in default, and no event has occurred which, with notice or in default lapse of time or both, would constitute such a default, in the due performance or observance of any term, obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it is a party or by which it may be bound, is bound or to which any of the property its properties or assets of the Fund is may be subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) or (iii) in violation of any law, ordinance, governmental rule, regulation or court decree to which it or its property or assets may be subject, except with respect to (ii) or (iii), for any such violations or defaults that would not result be reasonably likely, singly or in the aggregate, to have a Material Adverse Effect; 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 Indenture 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 “OFFERING AGREEMENTS”) Securities and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the 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 in the Disclosure Package) and compliance by the Fund Company and the Guarantor with its their respective obligations thereunder hereunder and under the Indenture and the Securities have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, (i) conflict with or constitute result in a breach or violation of any of the terms or provisions of, or constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any subsidiary pursuant to, the Agreements and Instruments Instruments, (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action ii) result in any violation of the provisions of the charter charter, memorandum of association or bybye-laws (or similar governing document) of the Fund Company or any of its subsidiaries or (iii) result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any subsidiary or any of its their assets, properties or operations (operations; except for such violations that would conflict, breach, violation or default which would, for purposes of clauses (i) and (iii) above, either individually or in the aggregate, not result in have 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 FundCompany or any subsidiary.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its subsidiaries is not in violation of its charter or by-laws, laws or similar organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company or any of its subsidiaries is a party or by which it any of them may be bound, bound or to which any of the property or assets of the Fund Company or any of its subsidiaries is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) except for such violations or defaults that would not result has violated or is in a Material Adverse Effect; 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 Fund Accounting Servicing Agreement referred to in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated in the Offering Agreements and in the Registration Statement (including the issuance and sale of the 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 Fund with its obligations thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws of the Fund or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any of its assetsthe subsidiaries or any of their assets or properties, properties or operations (except in each case for such violations and defaults that would not result in a Material Adverse Effect); and the execution, delivery and performance of the Transaction Documents and any other agreement or instrument entered into or issued or to be entered into or issued by the Company or any of the Guarantors in connection with the transactions contemplated hereby or thereby or in the Disclosure Package and the Prospectus and the consummation of the transactions contemplated herein and in the Disclosure Package and the Prospectus, as the case may be (including the issuance and sale of the Notes, the issuance of the Guarantees, and the use of the proceeds from the sale of the Securities as described in the Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by each of the Company and the Guarantors with its respective obligations hereunder have been duly authorized by all necessary corporate, limited liability or partnership action, as the case may be, and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or a Repayment Event (as defined below) under, or, except as referred to in the Disclosure Package and the Prospectus, result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, the Agreements and Instruments except for such conflicts, breaches or defaults or liens, charges or encumbrances that, singly or in the aggregate, would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Company or any of its subsidiaries or, in any material respect, any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their assets, properties or operations. As used herein, a “REPAYMENT 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 FundCompany or any of its subsidiaries.

Absence of Defaults and Conflicts. The Fund Company is not in violation of its charter or by-lawssecond amended and restated articles of incorporation (as amended and restated, the “Charter”), or amended and restated bylaws (as amended and restated, the “Bylaws”); none of the Subsidiaries is in violation of its charter, bylaws or other organizational documents; neither the Company nor any of its Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company or any of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Company or any Subsidiary is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) ), or in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except for such violations or defaults that would not not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect; 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 Fund Accounting Servicing Agreement referred to in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated in the Offering Agreements herein, and in the Registration Statement (including the issuance and sale of the 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 Fund Company with its obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect), ; nor will such action result in any violation of the provisions of the charter Charter or by-laws Bylaws of the Fund Company or the charter, bylaws or other organizational document of any Subsidiary; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any Subsidiary or any of its their assets, properties or operations (except for such violations that would not not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect). As used herein, a “REPAYMENT 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 FundCompany or any Subsidiary.

Absence of Defaults and Conflicts. The Fund is not in violation of its charter articles of incorporation or by-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it is a party or by which it may be bound, or to which any of the property or assets of the Fund is subject (collectively, “AGREEMENTS AND INSTRUMENTS”"Agreements and Instruments") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Management Agreement, the Custody Administration Agreement, the Stock Transfer Agency Sub-Administration Agreement, the Fund Administration Servicing Custodian Agreement and the Fund Accounting Servicing Transfer Agent and Service Agreement referred to in the Registration Statement (as used herein, individually the “Investment Advisory "Management Agreement,” " the “Custody "Administration Agreement,” ", the “Stock "Sub-Administration Agreement", the "Custodian Agreement" and the "Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”" respectively) and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the 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 Fund with its obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter articles of incorporation or by-laws of the Fund or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund or any of its assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. As used herein, a “REPAYMENT EVENT” "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Fund.

Absence of Defaults and Conflicts. The Fund is not in violation of its charter articles of incorporation or by-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it is a party or by which it may be is bound, or to which any of the property or assets of the Fund is subject (collectively, “AGREEMENTS AND INSTRUMENTS”"Agreements and Instruments") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Management Agreement, the Sub-Advisory Agreement, the Custody Administration Agreement, the Custodian Agreement and 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 "Management Agreement," the "Sub-Advisory Agreement,” , the “Custody "Administration Agreement,” " the “Stock "Custodian Agreement" and the "Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”" respectively) and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the 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 Fund with its obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter articles of incorporation or by-laws of the Fund or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund or any of its assets, properties or operations (except for such violations that would not result in a Material Adverse Effect). As used herein, a “REPAYMENT EVENT” "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Fund.

Absence of Defaults and Conflicts. The Fund Company is not in violation of its charter Restated Certificate of Incorporation (the “Charter”), or byBy-laws, as amended and restated (the “Bylaws”); none of the Subsidiaries is in violation of its charter, bylaws or other organizational documents and neither the Company nor any of its Subsidiaries is in 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 it the Company or any of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Company or any Subsidiary is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) ), or in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except for such violations or defaults that would not not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect; 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 Fund Accounting Servicing Agreement referred to in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) Indenture and the consummation of the transactions contemplated in the Offering Agreements herein and therein and in the Registration Statement (including the issuance and sale of the 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 Fund Company with its obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect), ; nor will such action result in any violation of the provisions of the charter Charter or by-laws Bylaws of the Fund Company or the charter, bylaws or other organizational document of any Subsidiary; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any Subsidiary or any of its their assets, properties or operations (except for such violations that would not not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect). As used herein, a “REPAYMENT 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 FundCompany or any Subsidiary.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its subsidiaries is not in violation of its charter or by-lawsbylaws or its partnership agreement, as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company or any of its subsidiaries is a party or by which it any of them may be bound, or to which any of the property respective properties or assets of the Fund Company or any subsidiary is subject (collectively, “AGREEMENTS AND INSTRUMENTS”) "Agreements and Instruments"), except for such violations or defaults that would not result in have a Material Adverse Effect; 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 Fund Accounting Servicing Agreement referred to in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated in the Offering Agreements and in the Registration Statement herein (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares Securities to repay borrowings under the Revolving Credit Agreement dated as of December 14, 1999 among the Company, the banks named therein, The Bank of New York, as agent and swing line bank, First Union National Bank, as syndication agent, ▇▇▇▇▇ Fargo Bank, National Association, as documentation agent, Bank of Montreal as co-agent and BNY Capital Markets, Inc., as arranger, as amended by Amendment No. 1 thereto dated as of January 21, 2000 and extended pursuant to the Extension Agreement dated April 25, 2001 (as so amended and extended, the "Acquisition Credit Agreement"), as described in the General Disclosure Package and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Fund Company with its obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any subsidiary pursuant to, the Agreements and Instruments (any Agreement or Instrument, except for such conflicts, breaches or defaults or liens, charges or encumbrances that that, individually or in the aggregate, would not result in have a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws bylaws of the Fund Company or any applicable law, statute, rule, regulation, or governmental or court judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund or any of its assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)decree. As used herein, a “REPAYMENT EVENT” "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany or any subsidiary of the Company or any of its subsidiaries.

Absence of Defaults and Conflicts. The Fund Neither of the Company nor the Subsidiary Guarantors is not in violation of its charter or by-laws, or . Neither the Company nor any of its subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Company or any of its subsidiaries is subject (collectively, “AGREEMENTS AND INSTRUMENTS”) "Agreements and Instruments"), except for such violations or defaults that as would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory AgreementIndenture, the Custody AgreementSecurities, the Stock Transfer Agency AgreementExchange Securities, the Fund Administration Servicing Guarantees, the guarantees of the Exchange Securities, the Registration Rights Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the Fund Accounting Servicing Agreement referred to Company or the Subsidiary Guarantors, in connection with the transactions contemplated hereby or thereby or in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) Offering Memorandum and the consummation of the transactions contemplated herein and in the Offering Agreements and in the Registration Statement Memorandum (including the issuance and sale of the 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 Offering Memorandum under the caption “"Use of Proceeds”") and compliance by the Fund Company and the Subsidiary Guarantors with its their respective obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any of its subsidiaries pursuant to, the Agreements and Instruments (Instruments, except for such conflicts, breaches or defaults or breaches, defaults, Repayment Events, liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect), ; nor will such action result in any violation of the provisions of the charter or by-laws of the Fund Company or any of its subsidiaries, nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any of its assets, subsidiaries or any of their assets or properties or operations (except for such violations that would not result in a Material Adverse Effect). As used herein, a “REPAYMENT EVENT” "Repayment Event" means any event or condition which expressly 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 FundCompany or any of its subsidiaries.

Absence of Defaults and Conflicts. The Fund Neither the Issuer nor any of its subsidiaries is not in violation of its charter or by-laws, respective organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it any of them is a party or by which it any of them may be bound, or to which any of the property or assets of the Fund any of them is subject (collectively, “"AGREEMENTS AND INSTRUMENTS”) "), except for such violations or defaults that would not result in a Material Adverse Effect; and (A) the execution, delivery and performance of this Agreement, the Investment Advisory AgreementSecurities, the Custody AgreementNotes Indenture, the Stock Transfer Agency AgreementExchange Indenture (if the Exchange Debentures are issued in exchange for the Exchangeable Preferred Stock), the Fund Administration Servicing Agreement and Registration Rights Agreements, by the Fund Accounting Servicing Agreement referred to in the Registration Statement (as used hereinIssuer, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) and the consummation by the Issuer of the transactions contemplated in the Offering Agreements herein and in the Registration Statement therein (including the issuance and sale by the Issuer of the Shares Securities in accordance with the offering and sale restrictions contained in this Agreement and the Offering Memorandum and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and the Prospectus Offering Memorandum under the caption “Use of Proceeds”"USE OF PROCEEDS"), (B) and compliance by the Fund Issuer with its obligations thereunder have been duly authorized hereunder and under the Securities, (C) compliance by all necessary corporate action the Issuer of its obligations under the Notes Indenture, the Exchange Indenture (if the Exchange Debentures are issued in exchange for the Exchangeable Preferred Stock) and do such other agreements to which it is or will be a party in connection with the transactions contemplated by this Agreement, (D) consummation of the Pending Acquisitions and (E) the execution, delivery and performance of the Existing Credit Facility or the New Credit Facility, as applicable, will not and will not, (1) whether with or without the giving of notice or the passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance Encumbrance upon any property or assets of the Fund any such entity or any of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances Encumbrances that would not result in a Material Adverse Effect), nor will such action Effect or (2) result in any violation of (x) the provisions of the charter or by-laws respective organizational documents of the Fund Issuer or any of its subsidiaries or (y) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Issuer or any of its subsidiaries or any of their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect). As used herein, a “"REPAYMENT EVENT” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Fundany such entity or any of its subsidiaries.

Absence of Defaults and Conflicts. The Fund Neither the Company, the Guarantor nor any Subsidiary is not in violation of its charter articles of incorporation or by-laws, laws or in default default, and no event has occurred that with notice or lapse of time or both would constitute such a default, in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company, the Guarantor or any Subsidiary is a party or by which it may be bound, or to which any of the property or assets of the Fund Company, the Guarantor or any Subsidiary is subject (collectively, the “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) ), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Agreement Indenture 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 “OFFERING AGREEMENTS”) Securities and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the 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 Fund Company and the Guarantor with its their obligations thereunder have been duly authorized by all necessary corporate action hereunder and do under the Indenture and the Securities does not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company, the Guarantor or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter articles of incorporation or by-laws of the Fund Company, the Guarantor or any Subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company, the Guarantor or any Subsidiary or any of its their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. 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 Fund.Company, the Guarantor or any Subsidiary; provided, however, that the foregoing representations and warranties are made to the knowledge of the Company and the Guarantor insofar as they relate to NUI Utilities, Inc.

Absence of Defaults and Conflicts. The Fund Neither the Company, nor any --------------------------------- of its Subsidiaries is not in violation of its charter or by-laws, laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Company or any of its Subsidiaries is subject (collectively, “AGREEMENTS AND INSTRUMENTS”"Agreements and Instruments") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the 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 Combination Agreements by the Registration Statement (as used hereinCompany, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated in this Agreement, the Offering Agreements Combination Agreements, and in the Registration Statement (including the issuance and sale of the 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 Fund Company with its obligations thereunder under this Agreement and the Combination Agreements have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any of its Subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse EffectEffect and except as disclosed in the Registration Statement or in the Combination Agreements (including the exhibits and schedules thereto)), nor and will such action not result in any violation of (i) the provisions of the charter or by-laws of the Fund Company or any of its Subsidiaries or (ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any of its Subsidiaries or any of their assets, properties or operations except, in the case of clause (except for ii), to the extent that any such violations that violation would not result in have a Material Adverse Effect). As used herein, a “REPAYMENT EVENT” "Repayment Event" means any 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 FundCompany or any of its Subsidiaries.

Absence of Defaults and Conflicts. The Fund is not in violation of its charter the Agreement and Declaration of Trust or by-lawslaws of the Fund, each as amended from time to time, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it is a party or by which it may be bound, or to which any of the property or assets of the Fund is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory AgreementAgreement dated as of May 24, the Custody Agreement, the Stock Transfer Agency Agreement, 2007 between the Fund Administration Servicing Agreement and the Fund Accounting Servicing Agreement referred to in the Registration Statement Investment Adviser (as used herein, individually the “Investment Advisory Agreement,” ”), the Investment Management Agreement dated as of May 24, 2007 among the Fund, the Investment Adviser and the Investment Manager (the “Investment Management Agreement”), the Custodian Contract dated as of May 24, 2007 between the Fund and The Bank of New York (the “Custody Agreement,” ”), the Auction Agency Agreement between the Fund and The Bank of New York, dated September [ ], 2007 and the Stock Transfer Agency Agreement dated as of May 24, 2007 between the Fund and The Bank of New York (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 in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the Shares AMPS and the use of the proceeds from the sale of the Shares AMPS as described in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Fund with its obligations thereunder hereunder have been duly authorized by all necessary corporate action under the Delaware Statutory Trust Act (the “Delaware 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 Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation (except for such violations that will not result in a Material Adverse Effect) of the provisions of the charter Agreement and Declaration of Trust or by-laws of the Fund Fund, each as amended from time to time, or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund or any of its assets, properties or operations (except for such violations that would not result operations, other than State securities or “blue sky” laws applicable in a Material Adverse Effect)connection with the purchase and distribution of the AMPS by the Underwriters pursuant to this Agreement. 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 Fund.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its subsidiaries is not in violation of its charter articles of incorporation or by-laws, laws or in breach of or otherwise in default, and no event has occurred which, with notice or lapse of time or both, would constitute such a default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company or any of its subsidiaries is a party or by which it any of them may be bound, or to which any of the property or assets of the Fund Company or any of its subsidiaries is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, Transaction Documents and any other agreement or instrument entered into or issued or to be entered into or issued by the Custody Agreement, Company in connection with the Stock Transfer Agency Agreement, the Fund Administration Servicing Agreement and the Fund Accounting Servicing Agreement referred to transactions contemplated hereby or thereby or in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) Private Placement Memorandum and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement Private Placement Memorandum (including the issuance and sale of the 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 Private Placement Memorandum under the caption “Use of Proceeds”) and compliance by the Fund Company with its obligations thereunder have been duly authorized by all necessary corporate action and hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or Repayment Events or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter articles of incorporation or by-laws of the Fund Company or its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any subsidiary or any of its their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. 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 FundCompany or any subsidiary.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its subsidiaries is not in violation of its charter or by-laws, laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Company or any of its subsidiaries is subject (collectively, “AGREEMENTS AND INSTRUMENTS”"Agreements and Instruments") and except for such defaults and, in the case of the Company's subsidiaries only, such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Registration Rights Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Agreement Indenture and the Fund Accounting Servicing Agreement referred Notes and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) Offering Memorandum and the consummation of the transactions contemplated herein, therein and in the Offering Agreements and in the Registration Statement Memorandum (including the issuance and sale of the Shares and Notes, the use of the proceeds from the sale of the Shares Notes as described in the General Disclosure Package and the Prospectus Offering Memorandum under the caption “"Use of Proceeds”" and the filing of the Registration Statement) and compliance by the Fund Company with its obligations thereunder hereunder, and under the Registration Rights Agreement, the Indenture and the Notes have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or 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 Fund Company or any of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws of the Fund Company or any of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any of its assets, properties subsidiaries or operations (except for such violations that would not result in a Material Adverse Effect)any of their assets or properties. As used herein, a “REPAYMENT EVENT” "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Fund.Company or any of its subsidiaries. 739869.1 5

Absence of Defaults and Conflicts. The Fund is not Neither of the Issuers nor any of their respective subsidiaries are in violation of its respective charter or by-laws, laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it is the Issuers or any of their respective subsidiaries, as applicable, are a party or by which it any of them may be bound, or to which any of the property or assets of the Fund Issuers or any of their respective subsidiaries, as applicable, is subject (collectively, “AGREEMENTS AND INSTRUMENTS”"Agreements and Instruments") except for such violations or and defaults that would not reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance by the Issuers of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Agreement and each of the Fund Accounting Servicing Agreement referred other Recapitalization Documents to which it is a party and any other agreement or instrument entered into or issued or to be entered into or issued by the Issuers in connection with the transactions contemplated hereby or thereby or in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) Offering Memorandum and the consummation of the transactions contemplated herein, therein and in the Offering Agreements and in the Registration Statement Memorandum (including the issuance and sale of the 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 Offering Memorandum under the caption “"Use of Proceeds”" and the consummation of the Recapitalization Transactions) and compliance by each of the Fund Issuers with its their respective obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or a Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Issuers or any of their respective subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that that, singly or in the aggregate, would not reasonably be expected to result in a Material Adverse EffectEffect and except for the Bank Agreements and for Agreements and Instruments relating to indebtedness to be repaid in full in connection with the Recapitalization Transactions), nor will such action result in any violation of the provisions of the respective charter or by-laws of each of the Fund Issuers or any of their subsidiaries or any material 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 Fund Issuers or any of its assets, properties their subsidiaries or operations (except for such violations that would not result in a Material Adverse Effect)any of their assets or properties. As used herein, a “REPAYMENT EVENT” "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by either of the FundIssuers or any of their subsidiaries.

Absence of Defaults and Conflicts. The Fund is not in violation of its charter or by-laws, laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Fund is a party or by which it or its properties may be bound, or to which any of the property or assets of the Fund is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) ), except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory and Management Agreement dated as of [ ], 2007 between the Fund and the Investment Adviser (the “Advisory Agreement”), the Custody AgreementTransfer Agency Agreement dated as of [ ], 2007 between the Stock Fund and The Bank of New York (the “Transfer Agency Agreement”), and the Custody Agreement dated as of September 21, 2001, as amended as of January 24, 2007, between the Fund Administration Servicing Agreement and the Fund Accounting Servicing Agreement referred to in the Registration Statement State Street Bank and Trust Company (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated in the Offering Agreements this Agreement and in the Registration Statement (including the issuance and sale of the 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 Fund with its obligations thereunder under this Agreement have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or 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 Fund pursuant to, to the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or the by-laws of the Fund Fund, or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund or any of its assets, properties or operations (collectively, the “Laws” except for such violations that Laws which would not result in have 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 Fund.

Absence of Defaults and Conflicts. The Fund Trust is not in --------------------------------- violation of the certificate of trust filed with the State of Delaware on April 4, 1997 (the "Trust Certificate") or the Trust Agreement, ----------------- neither the Company nor any of its subsidiaries is in violation of its charter or by-laws, or and none of them are 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 it is a party or by which it may be bound, bound or to which any of the property its properties or assets of the Fund is may be subject (collectively, “AGREEMENTS AND INSTRUMENTS”) "Agreements and -------------- Instruments"), except for such violations or defaults that would not result in a ----------- Material Adverse Effect; the execution and delivery of the executionOperative Documents by the Trust or the Company, delivery and performance of this Agreementas the case may be, the Investment Advisory Agreementissuance and delivery of the Securities, the Custody Agreement, consummation by 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 “OFFERING AGREEMENTS”) and the consummation Offerors of the transactions contemplated in the Offering Agreements and in the Registration Statement (including the issuance and sale of the 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”) Operative Documents, and compliance by the Fund Offerors with its their respective obligations thereunder under the Operative Documents to which they are party have been duly authorized by all necessary corporate action on the part of the Company and, at the Closing Time, will have been duly authorized by all necessary action on the part of the Trust, and do not and will not, whether with or without the giving of notice or passage of time or both, (A) result in any violation of the charter or by-laws of the Company or any subsidiary thereof or the Trust Agreement or the Trust Certificate or (B) conflict with or constitute a breach of any of the terms or provisions of, or constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Trust, the Company or any subsidiary thereof pursuant to, (1) the Agreements and Instruments (Instruments, except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in Effect or (2) any violation of the provisions of the charter or by-laws of the Fund or any existing applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government governmental instrumentality or court, domestic or foreign, having jurisdiction over the Fund Trust, the Company or any subsidiary thereof or any of its assetstheir respective properties, properties assets or operations (except for such violations that would not result in a Material Adverse Effect)operations. As used herein, a “REPAYMENT EVENT” "Repayment Event" means any event or condition which gives the holder --------------- of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany or any subsidiary.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of the Subsidiaries is not in violation of its charter or by-laws, laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company or any of the Subsidiaries is a party or by which it any of them may be bound, or to which any of the property or assets of the Fund Company or any of the Subsidiaries is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) or has violated or is in violation of any of the laws, rules and regulations administered by the United States Centers for Medicare and Medicaid Services (“CMS”), the United States Food and Drug Administration (the “FDA”), the Substance Abuse and Mental Health Services Administration (the “SAMHSA”) and by the Drug Enforcement Administration (the “DEA”), or any other applicable 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 the Subsidiaries or any of their assets or properties, except in each case for such defaults or violations that have been disclosed or defaults that would not singly or in the aggregate result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, the Investment Advisory Registration Rights Agreement, the Custody AgreementIndenture, the Stock Transfer Agency AgreementSecurities, the Fund Administration Servicing Agreement Exchange Securities and the Fund Accounting Servicing Agreement referred Guarantees and any other agreement or instrument entered into or issued or to be entered into or issued by the Company or any of the Guarantors in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) and connection with the consummation of the transactions contemplated by this Agreement herein and in the Offering Agreements and in the Registration Statement Memorandum (including the issuance and sale of the Shares Securities and the Guarantees, the use of the proceeds from the sale of the Shares Securities and the Guarantees as described in the General Disclosure Package and the Prospectus Offering Memorandum under the caption “Use of Proceeds”) and compliance by the Fund Company and the Guarantors with its their respective obligations thereunder under this Agreement, the Registration Rights Agreement, the Indenture, the Securities and the Guarantees have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or 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 Fund Company or any of the Subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws of the Fund Company or any of the Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any of its the Subsidiaries or any of their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect). As used herein, a “REPAYMENT EVENT” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Fundoperations.

Absence of Defaults and Conflicts. The Fund is not in violation of its charter articles of incorporation or by-laws, each as amended from time to time, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it is a party or by which it may be bound, or to which any of the property or assets of the Fund is subject (collectively, “AGREEMENTS AND INSTRUMENTS”"Agreements and Instruments") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Management Agreement, the Custody Administration Agreement, the Stock Custodian Agreement, and the Transfer Agency Agreement, the Fund Administration Servicing Agreement and the Fund Accounting Servicing Service Agreement referred to in the Registration Statement (as used herein, individually the “Investment Advisory "Management Agreement,” " the “Custody "Administration Agreement,” " the “Stock "Custodian Agreement" and the "Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”" respectively) and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the 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 Fund with its obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter articles of incorporation or by-laws of the Fund Fund, each as amended from time to time, or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund or any of its assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. As used herein, a “REPAYMENT EVENT” "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Fund.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its subsidiaries is not in violation of its charter or by-laws, laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Company or any of its subsidiaries is subject (collectively, “AGREEMENTS AND INSTRUMENTS”) "Agreements and Instruments"), except for such violations or defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Underwriting Agreement, the Investment Advisory Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing applicable Terms Agreement and each applicable Indenture and any other agreement or instrument entered into or issued or to be entered into or issued by the Fund Accounting Servicing Agreement referred to Company in connection with the transactions contemplated hereby or thereby or in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) Prospectus and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement and the Prospectus (including the issuance and sale of the 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 the Prospectus under the caption “"Use of Proceeds”") and compliance by the Fund Company with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Fund Company or any of its subsidiaries pursuant to, the any Agreements and Instruments (except for such conflicts, breaches or defaults breaches, defaults, events or liens, charges or encumbrances that would not result in a Material Adverse Effect), ) nor will such action result in any violation of the provisions of the charter or by-laws of the Fund Company or any of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, foreign having jurisdiction over the Fund Company or any if its subsidiaries or any of its their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. As used herein, a “REPAYMENT EVENT” "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany or any of its subsidiaries.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its subsidiaries is not (a) in violation of its charter or by-laws, laws or (b) 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 it the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Company or any subsidiary is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) except for such violations or defaults that would not not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the 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 “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in Securities by the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”Selling Shareholder) and compliance by the Fund Company with its obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches breaches, defaults or defaults Repayment Events or liens, charges or encumbrances (i) that may occur under the Company’s Credit Agreement, dated as of December 1, 2009, as a result of a notification from the Department of Education (“DOE”) to the Company or any of its subsidiaries or schools of any suspension or termination of Title IV Program (as defined below) funding in connection with such sale of the Securities by the Selling Shareholder, (ii) or that would not not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect), nor will such action result in any violation of (A) the provisions of the charter or by-laws of the Fund Company or any subsidiary or (B) except as disclosed in the Company’s Annual Report on Form 10-K filed for the fiscal year ended December 31, 2009 under the headings “Business—Regulatory Environment” and “Risk Factors—Issuance or sales of a substantial amount of our common stock could result in a change in control of our schools, which could require any affected schools to reaffirm their DOE approvals, state authorizations and accreditations and their ability to participate in Title IV Programs” and in the General Disclosure Package and the Prospectus under the heading “Risks Related to the Offering— The sale of shares in this offering by the selling stockholder will constitute a change in control of each of our schools under the DOE standards and standards of certain institutional accrediting agencies requiring each of our schools to apply for recertification for continued ability to participate in Title IV Programs and reaffirm certain accreditations. The failure to obtain the required recertifications and reaffirmations could have a material adverse effect on our results of operations” and except for any such violation that would not reasonably be expected to result, singly or in the aggregate, in a Material Adverse Effect, any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any subsidiary or any of its their assets, properties or operations operations, including, without limitation, the Higher Education Act of 1965, as amended, and the regulations promulgated thereunder (except for such violations that would not result in a Material Adverse Effectthe “HEA”). 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 FundCompany or any subsidiary.

Absence of Defaults and Conflicts. The Fund Neither the Issuer, the Guarantor, nor any of the Guarantor's Designated Subsidiaries is not in violation of its charter or charter, by-laws, laws or similar organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Issuer, the Guarantor or any of the Guarantor's Designated Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Issuer, the Guarantor or any of the Guarantor's Designated Subsidiaries is subject (collectively, “AGREEMENTS AND INSTRUMENTS”) "Agreements and Instruments"), except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory AgreementIndenture, the Custody Agreement, Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Stock Transfer Agency Agreement, Issuer or the Fund Administration Servicing Agreement and Guarantor in connection with the Fund Accounting Servicing Agreement referred to transactions contemplated hereby or thereby or in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) Prospectus and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package Registration Statement and the Prospectus under the caption “"Use of Proceeds”") and compliance by each of the Fund Issuer and the Guarantor with its obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Issuer, the Guarantor or any of the Guarantor's Designated Subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or Repayment Events or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect), nor will such action result in any violation of (i) the provisions of the charter or charter, by-laws or similar organizational documents of the Fund Issuer, the Guarantor or any of the Guarantor's Designated Subsidiaries or (ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Issuer, the Guarantor or any of its the Guarantor's Designated Subsidiaries or any of their assets, properties or operations except, in the case of (except ii) above, for such violations that would not result in a Material Adverse Effect). As used herein, a “REPAYMENT EVENT” "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundIssuer, the Guarantor or any of the Guarantor's Designated Subsidiaries.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of the Guarantors is not (1) in violation of its charter articles of incorporation or continuance, memorandum, articles or by-lawslaws or other charter documents, (2) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority to which it, or its properties or assets may be subject or (3) 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 it the Company or any of the Guarantors is a party or by which it any of them may be bound, or to which any of the property or assets of the Fund Company or any of the Guarantors is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”), except, in the case of clauses (2) except and (3) above, for such violations or defaults that would not not, individually or in the aggregate, result in a Material Adverse Effect; and the execution, delivery and performance of this Agreementthe Transaction Documents, the Investment Advisory Agreement, Operative Documents and any other agreement or instrument entered into or issued or to be entered into or issued by any of the Custody Agreement, Issuers in connection with the Stock Transfer Agency Agreement, the Fund Administration Servicing Agreement and the Fund Accounting Servicing Agreement referred to transactions contemplated hereby or thereby or in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) Final Offering Memorandum and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement Final Offering Memorandum (including the issuance and sale of the Shares Securities and the use of the proceeds from the sale of the Shares Securities substantially as described in the General Disclosure Package and the Prospectus Final Offering Memorandum under the caption “Use of Proceeds”) and compliance by the Fund each Issuer with its obligations thereunder hereunder, as of the Closing Time, have been duly authorized by all necessary corporate action or authorized by all requisite action set forth in such Issuer’s constituent documents and applicable law of the jurisdiction of its formation 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 Fund Company or any Guarantor pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not not, individually or in the aggregate, result in a Material Adverse Effect)Effect or are granted pursuant to the Senior Secured Credit Facility, nor will such action result in any violation of the provisions of the charter articles of incorporation or continuance, memorandum, articles or by-laws or other charter documents of the Fund Company or any of the Guarantors or, assuming the representations and warranties and agreements of the Initial Purchasers contained herein are accurate, any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any of its the Guarantors or any of their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. 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 FundCompany or any of its subsidiaries.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its subsidiaries is not (i) in violation of its charter operating agreement, charter, bylaws or by-laws, other comparable governing document or (ii) 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 it the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property assets, properties or assets operations of the Fund Company or any of its subsidiaries is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”), except with respect to clause (ii) except for such violations or defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, the Investment Advisory AgreementIndenture , the Custody Agreement, Notes and any other agreement or instrument entered into or issued or to be entered into or issued by the Stock Transfer Agency Agreement, Company in connection with the Fund Administration Servicing Agreement and the Fund Accounting Servicing Agreement referred to transactions contemplated hereby or thereby or in the Registration Statement (as used hereinStatement, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” General Disclosure Package and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) Prospectus and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Shares Notes 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 Fund Company with its obligations hereunder and thereunder have been duly authorized by all necessary corporate limited liability company action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Fund Company or any of its subsidiaries pursuant to, the any Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws bylaws of the Fund Company or any of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any of its subsidiaries or any of their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. 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 FundCompany or any of its subsidiaries.

Absence of Defaults and Conflicts. The Fund Trust is not in violation of its charter agreement and declaration of trust or by-laws, each as amended from time to time, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it is a party or by which it may be bound, or to which any of the property or assets of the Fund Trust is subject (collectively, “AGREEMENTS AND INSTRUMENTS”"Agreements and Instruments") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Management Agreement, the Custody Administration Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Custodian Agreement and the Fund Accounting Servicing Transfer Agency and Service Agreement referred to in the Registration Statement (as used herein, individually the “Investment Advisory "Management Agreement,” " the “Custody "Administration Agreement,” ", the “Stock "Custodian Agreement" and the "Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”" respectively) and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the 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 Fund Trust with its obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Trust pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation (except for such violations that will not result in a Material Adverse Effect) of the provisions of the charter agreement and declaration of trust or by-laws of the Fund Trust, each as amended from time to time, or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Trust or any of its assets, properties or operations (except for such violations that would not result operations, other than State securities or "blue sky" laws applicable in a Material Adverse Effect)connection with the purchase and distribution of the Securities by the Underwriters pursuant to this Agreement. As used herein, a “REPAYMENT EVENT” "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundTrust.

Absence of Defaults and Conflicts. The Fund None of the DB Entities is not (A) in violation of its constituent documents, charter or by-laws, laws or (B) 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 it any of the DB Entities is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund any DB Entity is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) ), except for such violations or defaults that would not result in have a Material Adverse Effect; and material adverse effect on the ability of the relevant DB Entity to perform its obligations under the Transaction Documents (as defined below). The execution, delivery and performance by the DB Entities of this Agreement, the Investment Advisory Trust Agreement, the Custody LLC Agreement, the Stock Transfer Agency AgreementGuarantees, the Fund Administration Servicing Initial Obligation, the Services Agreement among the Guarantor, the Trust and the Fund Accounting Servicing Company to be dated on or about February •, 2008, the Subordinated Deposit Agreement referred between the Company and the Guarantor to in be dated on or about February •, 2008 and the Registration Statement Agency Agreement among the Trust, the Company, The Bank of New York and Deutsche Bank Trust Company Americas to be dated on or about February •, 2008 (as used hereincollectively, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” Transaction Documents”) and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) Securities and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the 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 Fund Trust, the Company and the Guarantor with its their respective obligations thereunder under the Transaction Documents and the Securities have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund DB Entities or any subsidiary of the Guarantor pursuant to, the Agreements and Instruments (except for such conflicts, breaches breaches, defaults or defaults Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of (A) the provisions of the constituent documents, charter or by-laws of the Fund DB Entities or any subsidiary of 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 Fund DB Entities or any subsidiary of the Guarantor or any of its their assets, properties or operations (except except, with respect to (B), for such violations that would not result in a Material Adverse Effect). As used herein, a “REPAYMENT EVENTRepayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundDB Entities or any subsidiary of the Guarantor.

Absence of Defaults and Conflicts. The Fund is not in violation of its charter the Statement or by-laws, each as amended or supplemented to date, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Fund is a party or by which it may be bound, or to which any of the property or assets of the Fund is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) except for such violations or defaults (A) that do not involve Offering Agreements (as defined below) and (B) that would not not, individually or in the aggregate, result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement dated as of March 29, 1999 between the Fund and the Adviser, the Mutual Fund Custody and Services Agreement dated as of September 10, 2001 between Fund and The Bank of New York Mellon Corporation and the Transfer Agency and Service Agreement, dated as of January 1, 2011 among the Custody AgreementFund, the Stock Transfer Agency AgreementComputershare Trust Company, the Fund Administration Servicing Agreement N.A. and the Fund Accounting Servicing Agreement Computershare Inc., 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 Transfer Agency Agreement,” respectively and collectively the “OFFERING AGREEMENTSOffering Agreements”) and the consummation of the transactions contemplated in the Offering Agreements and in the Registration Statement (including the issuance and sale of the 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 Fund with its obligations thereunder have been duly authorized by all necessary corporate 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 Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or breaches, defaults or liens, charges or encumbrances that would not not, individually or in the aggregate, result in a Material Adverse Effect), nor will such action result in (i) any violation of the provisions of the charter Statement or by-laws of the Fund or (ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund or any of its assets, properties or operations operations, except with respect to (except ii) only for such violations that would not not, individually or in the aggregate, 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 Fund.

Absence of Defaults and Conflicts. The Fund is not in violation of its charter agreement and declaration of trust or by-laws, each as amended from time to time, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it is a party or by which it may be bound, or to which any of the property or assets of the Fund is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory AgreementAgreement dated as of [ ], the Custody Agreement, the Stock Transfer Agency Agreement, 2005 between the Fund Administration Servicing Agreement and the Fund Accounting Servicing Agreement referred to in the Registration Statement Investment Adviser (as used herein, individually the “Investment Advisory Agreement,” ”), the Investment Sub-Advisory Agreement dated as of [ ], 2005 among the Fund, the Investment Adviser and the Investment Sub-Adviser (the “Investment Sub-Advisory Agreement”), the Custodian Contract dated as of [ ], 2005 between the Fund and The Bank of New York (the “Custody Agreement,” ”) and the Registrar, Transfer Agency and Service Agreement dated as of [ ], 2005 between the Fund and The Bank of New York (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 in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the 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 Fund with its obligations thereunder hereunder have been duly authorized by all necessary corporate action under the Delaware Statutory Trust Act (the “Delaware 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 Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation (except for such violations that will not result in a Material Adverse Effect) of the provisions of the charter agreement and declaration of trust or by-laws of the Fund Fund, each as amended from time to time, or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund or any of its assets, properties or operations (except for such violations that would not result operations, other than State securities or “blue sky” laws applicable in a Material Adverse Effect)connection with the purchase and distribution of the Securities by the Underwriters pursuant to this Agreement. 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 Fund.

Absence of Defaults and Conflicts. The Fund None of the CNX Parties is not (i) in violation of its charter Organizational Documents or by-laws, or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contemplated by the Transactions or contained in any material contractCNX Document, indentureexcept, mortgagein the case of clause (ii), deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it is a party or by which it may be bound, or to which any of the property or assets of the Fund is subject (collectively, “AGREEMENTS AND INSTRUMENTS”) except for such violations or defaults that would not not, individually or in the aggregate, result in a Material Adverse Effect; Effect 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, 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 “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated in herein (including the Offering Agreements Transactions) and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Shares Units and the use of the proceeds from the sale of the Shares Units as described in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Fund CNX Parties party hereto with its their obligations thereunder have been duly authorized by all necessary corporate action 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 Fund Partnership Entities pursuant toto any CNX Documents, the Agreements and Instruments (except for such conflicts, breaches or breaches, defaults or liens, charges or encumbrances Liens that would not not, 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), nor will such action result in any violation of (A) the provisions of the charter or by-laws Organizational Documents of the Fund 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 Fund CNX Parties or any of its their respective assets, properties or operations operations, except, in the case of clause (except B), for such violations that would not not, 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). As used herein, a “REPAYMENT EVENT” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Fund.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its subsidiaries is not in violation of its charter or by-lawsbylaws or its partnership agreement, as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company or any of its subsidiaries is a party or by which it any of them may be bound, or to which any of the property respective properties or assets of the Fund Company or any subsidiary is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) ), except for such violations or defaults that would not result in have a Material Adverse Effect; 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 Fund Accounting Servicing Agreement referred to in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated in the Offering Agreements and in the Registration Statement herein (including the issuance and sale of the Shares 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 Fund Company with its obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any subsidiary pursuant to, the Agreements and Instruments (any Agreement or Instrument, except for such conflicts, breaches or defaults or liens, charges or encumbrances that that, individually or in the aggregate, would not result in have a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws bylaws of the Fund Company or any applicable law, statute, rule, regulation, or governmental or court judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund or any of its assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)decree. 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 FundCompany or any subsidiary of the Company or any of its subsidiaries.

Absence of Defaults and Conflicts. The Fund is not in violation of its charter the Articles or the Fund’s by-laws, laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it is a party or by which it may be bound, or to which any of the property or assets of the Fund is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) ), except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Administration Agreement, the Stock Transfer Agency Custodian Agreement, the Fund Administration Servicing Transfer Agency Agreement and the Fund Accounting Servicing Auction Agency Agreement referred to in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Administration Agreement,” the “Stock Transfer Agency Custodian Agreement,” the “Fund Administration Servicing Transfer Agency Agreement,” and the “Fund Accounting Servicing Auction Agency Agreement,” respectively and collectively the “OFFERING AGREEMENTS”respectively) and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the Shares AMPS and the use of the proceeds from the sale of the Shares AMPS as described in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Fund with its obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter Articles or the Fund’s by-laws of the Fund laws, or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund or any of its assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. 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 Fund.

Absence of Defaults and Conflicts. The Fund Neither the Company, the Guarantor nor any Subsidiary is not in violation of its charter articles of incorporation or by-laws, laws or in default default, and no event has occurred that with notice or lapse of time or both would constitute such a default, in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company, the Guarantor or any Subsidiary is a party or by which it may be bound, or to which any of the property or assets of the Fund Company, the Guarantor or any Subsidiary is subject (collectively, the “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) ), except for such defaults that would not result in a Material Adverse Effect or in violation of any applicable statute, law, rule, regulation or judicial or administrative decree, writ, judgment or order, except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Agreement Indenture 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 “OFFERING AGREEMENTS”) Securities and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the 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 Fund Company and the Guarantor with its their obligations thereunder have been duly authorized by all necessary corporate action hereunder and do under the Indenture and the Securities does not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company, the Guarantor or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter articles of incorporation or by-laws of the Fund Company, the Guarantor or any Subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company, the Guarantor or any Subsidiary or any of its their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. 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 FundCompany, the Guarantor or any Subsidiary.

Absence of Defaults and Conflicts. The Fund Neither the Company nor the Bank is not (a) in violation of its charter or by-laws, laws or (b) 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 it the Company or the Bank is a party or by which it the Company or the Bank may be bound, or to which any of the property or assets of the Fund Company or the Bank is subject (the “Agreements and Instruments”), including but not limited to the 3 Year Revolving Credit Agreement dated March 14, 2005, as amended, among the Company, the Initial Lenders named therein and ▇▇▇▇▇ Fargo Bank, National Association, as agent (the “▇▇▇▇▇ Fargo Loan Facility”), the 5.25% Senior Notes due March 31, 2008 (the “Senior Notes”) and the Zero Coupon Senior Convertible Debt Securities due 2022 and the Zero Coupon Senior Convertible Contingent Debt Securities due 2024 (collectively, the “AGREEMENTS AND INSTRUMENTSCODES”), except in the case of both subclauses (a) except and (b) above for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Registration Rights Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Agreement Indenture and the Fund Accounting Servicing Agreement referred Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) Offering Memorandum and the consummation of the transactions contemplated herein and in the Offering Agreements and in the Registration Statement Memorandum (including the issuance and sale of the 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 Offering Memorandum under the caption “Use of Proceeds”) and compliance by the Fund Company with its obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or the Bank pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws of the Fund Company or the Bank or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any subsidiary or any of its their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. 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 FundCompany or the Bank.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its subsidiaries is not (A) in violation of its charter articles of incorporation or by-lawsbylaws or other organizational documents, each as amended as of the date hereof or (B) 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 it the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Company or any subsidiary is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) except for such violations or defaults that would not not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, Underwriting Agreement by the Investment Advisory Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Agreement Company 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 “OFFERING AGREEMENTS”) Bank and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the 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 Fund Company and the Bank with its their obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not reasonably be expected to result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter articles of incorporation or by-laws bylaws or other organizational documents of the Fund Company or any subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any subsidiary or any of its their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. 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 obligation of the Company or any of its subsidiaries (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such note, debenture or other evidence of indebtedness or obligation by the FundCompany or any subsidiary.

Absence of Defaults and Conflicts. The Fund None of the Partnership, the Guarantor nor any of the Guarantor's Material Subsidiaries is not in violation of its charter or by-laws, laws or other constituting or organizational document or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Partnership, the Guarantor or any of the Guarantor's Material Subsidiaries is a party or by which it the Partnership, the Guarantor or any of the Guarantor's Material Subsidiaries may be bound, or to which any of the property or assets of the Fund Partnership, the Guarantor or any of the Guarantor's Material Subsidiaries is subject (collectively, “AGREEMENTS AND INSTRUMENTS”"Agreements and Instruments") except for such violations or defaults relating to such Agreements and Instruments that would not reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory AgreementIndenture, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Agreement Guarantee 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 “OFFERING AGREEMENTS”) Notes and the consummation of the transactions contemplated herein and in the Offering Agreements and in the Registration Statement Circular (including the issuance and sale of the 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 Offering Circular under the caption “"Use of Proceeds”") and compliance by the Fund Partners, the Partnership and the Guarantor with its their obligations thereunder have been duly authorized by all necessary corporate action hereunder and under the Indenture, the Guarantee and the Notes do not and will not, 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 Fund Partnership, the Guarantor or any of the Guarantor's subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches breaches, defaults or defaults Repayment Events or liens, charges or encumbrances that that, singly or in the aggregate, would not reasonably be expected to result in a Material Adverse EffectEffect or prevent the Partnership or the Guarantor from performing their respective obligations hereunder), nor will such action result in any violation of (i) the provisions of the charter or by-laws or other constituting or organizational document of each of the Fund Partnership, the Guarantor or any of the Guarantor's Material Subsidiaries or (ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Partnership, the Guarantor or any of its the Guarantor's subsidiaries or any of their assets, properties or operations operations, except in the case of clause (except ii), for such violations violation that would not result in a Material Adverse Effect)Effect or prevent the Partnership or the Guarantor from performing their respective obligations hereunder. 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 repayment thereof of all or a portion of such indebtedness by the FundPartnership, the Guarantor or any of the Guarantor's subsidiaries.

Absence of Defaults and Conflicts. The Fund is not in violation of its charter Articles or by-laws, each as amended or supplemented to date, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Fund is a party or by which it may be bound, or to which any of the property or assets of the Fund is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) except for such violations or defaults (A) that do not involve Material Fund Agreements (as defined below) and (B) that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, Agreement or the Investment Advisory Agreement dated as of June 27, 1994 between the Fund and the Adviser, as amended May 19, 1999 (the “Management Agreement”), the Custody AgreementCustodian Contract dated as of September 10, 2001 between the Fund and the Custodian, the Stock Transfer Agency Agreementand Service Agreement dated as of January 1, 2011 between the Fund Administration Servicing Agreement Fund, Computershare Trust Company, N.A. and Computershare Inc., as amended to include the Securities, and the Automatic Dividend Reinvestment and Voluntary Cash Purchase Plan (each, a “Material Fund Accounting Servicing Agreement referred to in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the 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 Fund with its obligations thereunder hereunder and under the Securities have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to, the Agreements and Instruments any Material Fund Agreement (except for such conflicts, breaches or breaches, defaults or liens, charges or encumbrances that would would, singly or in the aggregate, not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter Articles or by-laws of the Fund or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund or any of its assets, properties or operations (operations, except for such violations that would not result in a Material Adverse Effect). As used herein, a “REPAYMENT EVENT” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Fund.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any Subsidiary is not in violation of its charter or charter, by-laws, laws or similar organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company or any Subsidiary is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Company or any Subsidiary is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory AgreementIndenture, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Registration Rights Agreement and the Fund Accounting Servicing Agreement referred Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) Offering Memorandum and the consummation of the transactions contemplated herein and in the Offering Agreements and in the Registration Statement Memorandum (including the issuance and sale of the 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 Offering Memorandum under the caption “Use of Proceeds”) and compliance by each of the Fund Company and the Guarantors with its their obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any Guarantor pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or Repayment Events or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws of the Fund Company or the charter, by-laws or similar organizational documents of any Guarantor or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any Guarantor or any of its their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. 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 FundCompany or any Guarantor.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its subsidiaries is not in violation of its charter or by-lawsof, or in default in 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 it the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Company or any subsidiary is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) that is included as an exhibit to the documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus, which the Company has filed with the Commission, except as disclosed in the General Disclosure Package and Prospectus or for such violations or defaults that would not result in a Material Adverse Effect; 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 Indenture 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 “OFFERING AGREEMENTS”) Securities and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the 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 Fund Company with its obligations thereunder hereunder and under the Indenture and the Securities have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches breaches, defaults or defaults Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws of the Fund Company or any subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any subsidiary or any of its their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. 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 FundCompany or any subsidiary.

Absence of Defaults and Conflicts. The Fund is not in violation of its charter articles of incorporation or by-laws, each as amended from time to time, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it is a party or by which it may be is bound, or to which any of the property or assets of the Fund is subject (collectively, “AGREEMENTS AND INSTRUMENTS”"Agreements and Instruments") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Management Agreement, the Custody Administration Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Custodian Agreement and the Fund Accounting Servicing Transfer Agency and Service Agreement referred to in the Registration Statement (as used herein, individually the “Investment Advisory "Management Agreement,” " the “Custody "Administration Agreement,” " the “Stock "Custodian Agreement" and the "Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”" respectively) and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the 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 Fund with its obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter articles of incorporation or by-laws of the Fund Fund, each as amended from time to time, or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund or any of its assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. As used herein, a “REPAYMENT EVENT” "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Fund.

Absence of Defaults and Conflicts. The Fund Company is not in violation of its charter or by-lawsCertificate of Incorporation, as amended (the “Charter”), or By-Laws, as amended (the “Bylaws”); none of the Subsidiaries is in violation of its charter, bylaws or other organizational documents and neither the Company nor any of its Subsidiaries is in 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 it the Company or any of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Company or any Subsidiary is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) ), or in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except for such violations or defaults that would not could not, singly or in the aggregate, result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory AgreementIndenture, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Agreement and the Fund Accounting Servicing Merger Agreement referred to in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated in the Offering Agreements herein and therein, and in the Registration Statement (including the issuance and sale of the 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 Fund Company with its obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not could not, singly or in the aggregate, result in a Material Adverse Effect), ; nor will such action result in any violation of the provisions of the charter Charter or by-laws Bylaws of the Fund Company or the charter, bylaws or other organizational document of any Subsidiary; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any Subsidiary or any of its their assets, properties or operations (except for such violations that would not could not, singly or in the aggregate, 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 FundCompany or any Subsidiary.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its subsidiaries is not in violation of its charter or by-laws, laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company or any such subsidiary is a party or by which it any of them may be bound, or to which any of the property or assets of the Fund Company or any of its subsidiaries is subject (collectively, “AGREEMENTS AND INSTRUMENTS”"Agreements and Instruments") except for such violations or defaults that would have not and will not result in a Material Adverse Effect; and the performance of the Indenture, the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Registration Rights Agreement and the Fund Accounting Servicing Agreement referred 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 Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) transactions contemplated hereby or thereby and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement therein (including the issuance and sale of the 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 Offering Memorandum under the caption “"Description of the Additional Notes and Related Matters-Use of Proceeds”") and compliance by the Fund Company with its obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or a Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws of the Fund Company or any of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any of its subsidiaries or any of their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. As used herein, a “REPAYMENT EVENT” "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Fund.Company or any of its subsidiaries. (xiv)

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its subsidiaries is not in violation of its respective charter or by-laws, laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Company or any of its subsidiaries is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) ), except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory AgreementIndenture, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing DTC Agreement and the Fund Accounting Servicing Agreement referred Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) Prospectus and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the offering, issuance and sale of the Shares Securities pursuant to this Agreement and the Indenture and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package Preliminary Prospectus and the Prospectus under the caption “Use of Proceeds”” and the issuance of the shares of Underlying Common Stock issuable upon conversion of the Securities) and in the Concurrent Stock Offering and compliance by the Fund Company with its obligations thereunder hereunder and under the Indenture and the Securities have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches breaches, defaults or defaults Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws of the Fund Company or any of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any of its subsidiaries or any of their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. 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 FundCompany or any of its subsidiaries.

Absence of Defaults and Conflicts. The Fund None of the DB Entities is not (A) in violation of its constituent documents, charter or by-laws, laws or (B) 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 it any of the DB Entities is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund any DB Entity is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) ), except for such violations or defaults that would not result in have a Material Adverse Effect; and material adverse effect on the ability of the relevant DB Entity to perform its obligations under the Transaction Documents (as defined below). The execution, delivery and performance by the DB Entities of this Agreement, the Investment Advisory Trust Agreement, the Custody LLC Agreement, the Stock Transfer Agency AgreementGuarantees, the Fund Administration Servicing Initial Obligation, the Services Agreement among the Guarantor, the Trust and the Fund Accounting Servicing Agreement referred Company to in the Registration Statement (as used hereinbe dated on or about November [14], individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” 2007 and the Agency Agreement among the Trust, the Company, The Bank of New York and Deutsche Bank Trust Company Americas to be dated on or about November [14], 2007 (collectively, “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTSTransaction Documents”) and the Securities and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the 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 Fund Trust, the Company and the Guarantor with its their respective obligations thereunder under the Transaction Documents and the Securities have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund DB Entities or any subsidiary of the Guarantor pursuant to, the Agreements and Instruments (except for such conflicts, breaches breaches, defaults or defaults Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of (A) the provisions of the constituent documents, charter or by-laws of the Fund DB Entities or any subsidiary of 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 Fund DB Entities or any subsidiary of the Guarantor or any of its their assets, properties or operations (except except, with respect to (B), for such violations that would not result in a Material Adverse Effect). As used herein, a “REPAYMENT EVENTRepayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundDB Entities or any subsidiary of the Guarantor.

Absence of Defaults and Conflicts. The Fund is not in violation of its charter agreement and declaration of trust or by-laws, each as amended from time to time, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it is a party or by which it may be bound, or to which any of the property or assets of the Fund is subject (collectively, “AGREEMENTS AND INSTRUMENTS”"Agreements and Instruments") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement dated as of [ ], 2005 between the Fund and the Investment Adviser (the "Advisory Agreement"), the Custody AgreementSub-Advisory Agreement dated as of [ ], 2005 among the Fund, the Stock Investment Adviser and the Sub-Adviser (the "Sub-Advisory Agreement"), the Custodian Contract dated as of [ ], 2005 between the Fund and The Bank of New York (the "Custodian Agreement") and the Registrar, Transfer Agency and Service Agreement dated as of [ ], 2005 between the Fund and The Bank of New York (the "Transfer Agency Agreement, 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 “OFFERING AGREEMENTS”") and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the 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 Fund with its obligations thereunder hereunder have been duly authorized by all necessary corporate 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 Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation (not including for these purposes any such violations that will not result in a Material Adverse Effect) of the provisions of the charter agreement and declaration of trust or by-laws of the Fund Fund, each as amended from time to time, or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund or any of its assets, properties or operations (except for such violations that would not result operations, other than State securities or "blue sky" laws applicable in a Material Adverse Effect)connection with the purchase and distribution of the Securities by the Underwriters pursuant to this Agreement. As used herein, a “REPAYMENT EVENT” "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Fund.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its Subsidiaries is not (A) in violation of its charter or by-laws, laws or (B) 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 it the Company or any of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Company or any Subsidiary is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this AgreementUnderwriting Agreement by the Company and its banking Subsidiary Merchants Bank of Indiana, 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 an Indiana state chartered bank (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTSBank”) and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the 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 Fund Company and the Bank with its their obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws of the Fund Company or any Subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any Subsidiary or any of its their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. 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 obligation of the Company or any of its Subsidiaries (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such note, debenture or other evidence of indebtedness or obligation by the FundCompany or any Subsidiary.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its Subsidiaries is not in violation of its charter or by-laws, laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company or any of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Company or any of its Subsidiaries is subject (collectively, “AGREEMENTS AND INSTRUMENTS”"Agreements and Instruments") or has violated or 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 assets or properties, except in each case for such defaults or violations or defaults that would not reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Registration Rights Agreement, the Custody Indenture, the DTC Agreement, the Stock Transfer Agency Securities, the Exchange Securities, the Recapitalization Agreement, the Fund Administration Servicing Offer to Purchase, the Merger Agreement (if the Merger is consummated), the New Credit Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the Fund Accounting Servicing Agreement referred to Company in connection with the transactions contemplated hereby or thereby or in the Registration Statement (as used herein, individually Offering Memorandum or in connection with the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) Transactions and the consummation of the transactions contemplated herein and in the Offering Agreements and in the Registration Statement Memorandum (including the issuance and sale of the 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 Offering Memorandum under the caption “"Use of Proceeds”") and compliance by the Fund Company with its obligations thereunder have been duly authorized by all necessary corporate action hereunder and in connection with 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, 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 Fund Company or any of its Subsidiaries pursuant to, the Agreements and Instruments (Instruments, except for such conflicts, breaches or defaults or with regard to liens, charges or and encumbrances that would not result as disclosed in a Material Adverse Effect)the Offering Memorandum in connection with the New Credit Agreement, nor will such action result in any violation of the provisions of the charter or by-laws of the Fund Company or any of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any of its assets, properties Subsidiaries or operations (except for such violations that would not result in a Material Adverse Effect)any of their assets or properties. As used herein, a “REPAYMENT EVENT” "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany or any of its Subsidiaries.

Absence of Defaults and Conflicts. The Fund None of the DB Entities is not (A) in violation of its constituent documents, charter or by-laws, laws or (B) 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 it any of the DB Entities is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund any DB Entity is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) ), except for such violations or defaults that would not result in have a Material Adverse Effect; and material adverse effect on the ability of the relevant DB Entity to perform its obligations under the Transaction Documents (as defined below). The execution, delivery and performance by the DB Entities of this Agreement, the Investment Advisory Trust Agreement, the Custody LLC Agreement, the Stock Transfer Agency AgreementGuarantees, the Fund Administration Servicing Initial Obligation, the Services Agreement among the Guarantor, the Trust and the Fund Accounting Servicing Agreement referred Company to in the Registration Statement (as used hereinbe dated on or about July 20, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” 2007 and the Agency Agreement among the Trust, the Company, The Bank of New York and Deutsche Bank Trust Company Americas to be dated on or about July 20, 2007 (collectively, “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTSTransaction Documents”) and the Securities and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the 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 Fund Trust, the Company and the Guarantor with its their respective obligations thereunder under the Transaction Documents and the Securities have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund DB Entities or any subsidiary of the Guarantor pursuant to, the Agreements and Instruments (except for such conflicts, breaches breaches, defaults or defaults Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of (A) the provisions of the constituent documents, charter or by-laws of the Fund DB Entities or any subsidiary of 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 Fund DB Entities or any subsidiary of the Guarantor or any of its their assets, properties or operations (except except, with respect to (B), for such violations that would not result in a Material Adverse Effect). As used herein, a “REPAYMENT EVENTRepayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundDB Entities or any subsidiary of the Guarantor.

Absence of Defaults and Conflicts. The Fund None of the DB Entities is not (A) in violation of its constituent documents, charter or by-laws, laws or (B) 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 it any of the DB Entities is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund any DB Entity is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) ), except for such violations or defaults that would not result in have a Material Adverse Effect; and material adverse effect on the ability of the relevant DB Entity to perform its obligations under the Transaction Documents (as defined below). The execution, delivery and performance by the DB Entities of this Agreement, the Investment Advisory Trust Agreement, the Custody LLC Agreement, the Stock Transfer Agency AgreementGuarantees, the Fund Administration Servicing Initial Obligation, the Services Agreement among the Guarantor, the Trust and the Fund Accounting Servicing Company to be dated on or about May 9, 2008, the Subordinated Deposit Agreement referred between the Company and the Guarantor to in be dated on or about May 9, 2008 and the Registration Statement Agency Agreement among the Trust, the Company, The Bank of New York and Deutsche Bank Trust Company Americas to be dated on or about May 9, 2008 (as used hereincollectively, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” Transaction Documents”) and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) Securities and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the 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 Fund Trust, the Company and the Guarantor with its their respective obligations thereunder under the Transaction Documents and the Securities have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund DB Entities or any subsidiary of the Guarantor pursuant to, the Agreements and Instruments (except for such conflicts, breaches breaches, defaults or defaults Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of (A) the provisions of the constituent documents, charter or by-laws of the Fund DB Entities or any subsidiary of 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 Fund DB Entities or any subsidiary of the Guarantor or any of its their assets, properties or operations (except except, with respect to (B), for such violations that would not result in a Material Adverse Effect). As used herein, a “REPAYMENT EVENTRepayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundDB Entities or any subsidiary of the Guarantor.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its subsidiaries is not in violation of its charter constating documents or by-laws, laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease lease, license or other agreement or instrument to which it the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Company or any subsidiary is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) except for such violations or defaults that would not result individually or in the aggregate in a Material Adverse Effect; and the execution, delivery and performance of this Underwriting Agreement, the Investment Advisory Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Agreement Indenture 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 “OFFERING AGREEMENTS”) Securities and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package Draft Canadian Prospectus, the U.S. Prospectus and the Canadian Prospectus under the caption “Use of Proceeds”) and compliance by the Fund Company with its obligations thereunder have been duly authorized by all necessary corporate action hereunder and under the Indenture do not and 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 Fund Company or any of its subsidiaries or pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result individually or in the aggregate in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter constating documents or by-laws of the Fund Company or any subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any subsidiary or any of its their assets, properties or operations (except for such violations that which violation would not result in a Material Adverse Effect). As used herein, a “REPAYMENT EVENTRepayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany or any of the subsidiaries.

Absence of Defaults and Conflicts. The Fund None of the Company or any of its subsidiaries is not in violation of its charter or by-laws, as applicable, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company or any of its subsidiaries, as the case may be, is a party or by which it any of them may be bound, or to which any of the property or assets of the Fund Company or any of its subsidiaries, as the case may be, is subject (collectively, “AGREEMENTS AND INSTRUMENTS”"Agreements and Instruments") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Indenture, the Securities, the Security Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Registration Rights Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the Fund Accounting Servicing Agreement referred to Company or the Subsidiary Guarantors in connection with the transactions contemplated hereby or thereby or in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) Offering Memorandum and the consummation of the transactions contemplated herein and in the Offering Agreements and in the Registration Statement Memorandum (including the issuance and sale of the Shares Securities, the consummation of the ▇▇▇▇▇▇▇ Acquisition and the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and the Prospectus Offering Memorandum under the caption “"Use of Proceeds”") and compliance by the Fund Company and the Subsidiary Guarantors with its their obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or a Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws of the Fund Company or any of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any of its subsidiaries or any of their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. As used herein, a “REPAYMENT EVENT” "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany or any of its subsidiaries.

Absence of Defaults and Conflicts. The Fund Neither the Company nor the Subsidiary is not (1) in violation of its charter Articles of Incorporation or by-lawslaws (or other similar organizational documents), or (2) 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 it is a party or by which it or any of them may be bound, or to which any of the its property or assets of the Fund is subject (collectively, “AGREEMENTS AND INSTRUMENTS”"Agreements and Instruments") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Agreement and the Fund Accounting Servicing Agreement referred to Effect or (3) in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated in the Offering Agreements and in the Registration Statement (including the issuance and sale of the 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 Fund with its obligations thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws of the Fund or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company, the Subsidiary or any of its assetstheir assets or properties, properties except as disclosed in the Offering Memorandum or operations (except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture, the Securities, the Warrant Agreement and the Registration Rights Agreement, the Warrant Registration Rights Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the Company or the Subsidiary in connection with the transactions contemplated hereby or thereby or in the 11 Offering Memorandum and the consummation of the transactions contemplated herein and in the Offering Memorandum (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Offering Memorandum under the caption "Use of Proceeds") and compliance by the Company with its obligations hereunder and thereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or a Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiary pursuant to, the Agreements and Instruments except for such conflicts, breaches or defaults or liens, charges or encumbrances that, singly or in the aggregate, would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the charter or statute, as applicable, or by-laws (or other similar organizational documents) of the Company or the Subsidiary or any applicable law, statute, rule, regulation (including, without limitation, the Communications Act of 1934, as amended, and the rules and regulations of the Federal Communications Commission (the "FCC") thereunder), judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or the Subsidiary or any of their assets or properties, including, without limitation, the FCC except where such violation would not result in a Material Adverse Effect. As used herein, a “REPAYMENT EVENT” "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany or the Subsidiary.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its subsidiaries is not in violation of its articles of incorporation, bylaws or other charter or by-laws, documents or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Company or any of its subsidiaries is subject (collectively, “AGREEMENTS AND INSTRUMENTS”"Agreements and Instruments") except for such violations defaults or alleged defaults that are described in the Offering Memorandum and such other defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory AgreementIndenture, the Custody AgreementSecurities, the Stock Transfer Agency Agreement, the Fund Administration Servicing Registration Rights Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the Fund Accounting Servicing Agreement referred to Company in connection with the transactions contemplated hereby, thereby or in the Registration Statement (as used hereinOffering Memorandum, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated herein, therein and in the Offering Agreements and in the Registration Statement Memorandum (including the issuance and sale of the Shares and Securities, the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and the Prospectus Offering Memorandum under the caption “"Use of Proceeds”" and the issuance of the shares of Common Stock issuable upon conversion of the Securities) and compliance by the Fund Company with its obligations thereunder hereunder and thereunder, have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults breaches, default, Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the articles of incorporation, bylaws or other charter or by-laws documents of the Fund Company or any of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or of foreign, having jurisdiction over the Fund Company or any of its assetssubsidiaries or any of their assets or properties, properties or operations (except for such violations of law, statutes, rules, regulations, judgments, orders, writs or decrees that would not result in a Material Adverse Effect). As used herein, a “REPAYMENT EVENT” "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany or any of its subsidiaries.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its subsidiaries is not in violation of its charter Memorandum or Articles of Association, charter, by-lawslaws or other governing document, as applicable, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Company or any of its subsidiaries is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Registration Rights Agreement,, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Agreement Indenture and the Fund Accounting Servicing Agreement referred Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) Offering Memorandum and the consummation of the transactions contemplated herein and in the Offering Agreements and in the Registration Statement Memorandum (including the issuance and sale of the 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 Offering Memorandum under the caption “Use of Proceeds”” and the issuance of the Ordinary Shares issuable upon conversion of the Securities) and compliance by the Fund Company with its obligations thereunder hereunder and under the Registration Rights Agreement, the Indenture and the Securities have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or Repayment Events or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or Memorandum of Association, Articles of Association, charter, by-laws or other governing document, as applicable, of the Fund Company or any of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any of its subsidiaries or any of their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. 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 FundCompany or any of its subsidiaries.

Absence of Defaults and Conflicts. The Fund (A) Neither Dura nor any Subsidiary is not in violation of its charter or by-laws, laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it Dura or any Subsidiary is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Dura or any Subsidiary is subject (collectively, “AGREEMENTS AND INSTRUMENTS”"Agreements and Instruments") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of each of this Agreement, the Investment Advisory International Purchase Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Warrant Agreement and the Fund Accounting Servicing Agreement referred to in Transaction Agreements by Dura, SDC and DDSI, as the Registration Statement (as used hereincase may by, individually the “Investment Advisory Agreement,” issuance and delivery of the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” Warrants and the “Fund Accounting Servicing Agreement,” respectively and collectively issuance of shares of Dura Common Stock upon the “OFFERING AGREEMENTS”) exercise of the Warrants and the consummation by Dura, SDC and DDSI, as the case may be, of the transactions contemplated in this Agreement, the Offering International Purchase Agreement, the Warrant Agreement and the Transaction Agreements and in the Registration Statement (including the issuance and sale of the Shares and the use Warrants as part 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”Units) and compliance by Dura, SDC and DDSI, as the Fund case may be, with its their respective obligations thereunder under this Agreement, the International Purchase Agreement, the Warrant Agreement and each of the Transaction Agreements to which they are a party have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Dura or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws of the Fund Dura or any Subsidiary or any applicable material law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Dura or any Subsidiary or any of its their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. As used herein, a “REPAYMENT EVENT” "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by Dura or any Subsidiary. (B) SDC II is not in violation of its charter or by-laws or in default in the Fundperformance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which SDC II is a party or by which it may be bound, or to which any of the property or assets of SDC II is subject (collectively, "SDC II Agreements and Instruments") except for such defaults that would not result in an SDC II Material Adverse Effect; and the execution, delivery and performance of each of this Agreement, the International Purchase Agreement and the Transaction Agreements by SDC II and the consummation BY SDC II of the transactions contemplated herein, therein and in the Registration Statement (including the issuance and sale of the SDC II Common Stock as part of the Units and the use of the proceeds from the sale of the Units as described in the Prospectuses under the caption "Use of Proceeds") and compliance by SDC II with its obligations under this Agreement, the International Purchase Agreement and each of the Transaction Agreements have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or SDC II Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of SDC II pursuant to, the SDC II Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in an SDC II Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws of SDC II or any applicable material law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over SDC II or any of its assets, properties or operations. As used herein, an "SDC II Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by SDC II.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its subsidiaries is not in violation of its charter or by-laws, laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Company or any of its subsidiaries is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) ), except for such violations or defaults that would not reasonably be expected to result in a Material Adverse Effect; 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 Deposit Agreement and the Fund Accounting Servicing Agreement referred Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Registration Statement (as used hereinStatement, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” General Disclosure Package and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) Prospectus and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the 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 Fund Company with its obligations thereunder hereunder and under the Deposit Agreement and the Securities have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches breaches, defaults or defaults Repayment Events or liens, charges or encumbrances that that, singly or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws of the Fund or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any of its subsidiaries or any of their assets, properties or operations (a “Government Entity”) except for such violations that would not reasonably be expected to result in a Material Adverse Effect), nor will any such action result in any violation of the provisions of the charter or by-laws of the Company or any Designated Subsidiary. 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 FundCompany or any of its subsidiaries.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its subsidiaries is not in (i) violation of its charter or by-lawsorganizational documents, or in (ii) default (whether with or without the giving of notice or passage of time or both) in the performance or observance of any obligation, agreement, covenant or condition contained in any material contractlease, indenture, mortgage, deed of trust, loan or credit agreement, noteoperating agreement, lease property management agreement, franchise agreement, joint venture agreement or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, except in the case of clause (ii) to the extent that such default is disclosed in the Registration Statement and the Prospectus or would not, individually or in the aggregate, reasonably be expected to which any of the property or assets of the Fund is subject (collectively, “AGREEMENTS AND INSTRUMENTS”) except for such violations or defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, the Investment Advisory Agreement, Master Forward Confirmations and any “Supplemental Confirmation” under 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 “OFFERING AGREEMENTS”) Master Forward Confirmations and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement and the Prospectus (including the issuance and sale of the 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 Fund Company with its obligations thereunder have been duly authorized by all necessary corporate action under this Agreement, the Master Forward Confirmations and any “Supplemental Confirmation” under the Master Forward Confirmations do not and will not, whether with (A) conflict with, or without the giving of notice or passage of time or bothresult in any breach of, conflict with or constitute a default under nor constitute any event which (with notice, lapse of time, or both) would constitute a breach of, of or default or Repayment Event (as defined below) underunder (i) any provisions of the charter or bylaws or other organizational documents of the Company or any of its subsidiaries, (ii) any provision of any license, lease, indenture, mortgage, deed of trust, loan, credit, operating agreement, property management agreement, franchise agreement, joint venture agreement or other agreement or instrument to which any of them is a party or by which any of them or their respective properties or assets may be bound or affected, (iii) any law or regulation binding upon or applicable to the Company or any of its subsidiaries or any of their respective properties or assets, or (iv) any decree, judgment or order applicable to the Company or any of its subsidiaries; or (B) result in the creation or imposition of any lien, charge charge, claim or encumbrance upon any property or assets of the Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws of the Fund or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any of its assetssubsidiaries, properties or operations except in the case described in clause (except B) of this sentence for such violations that would not result liens, charges, claims and encumbrances in a Material Adverse Effect)connection with certain indebtedness described in the financial statements referred to in Section 5(a)(4) hereof. 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 FundCompany or any subsidiary of the Company.

Absence of Defaults and Conflicts. The Fund is not in violation of its charter or by-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it is a party or by which it may be bound, or to which any of the property or assets of the Fund is subject (collectively, “"AGREEMENTS AND INSTRUMENTS”") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the 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 “"OFFERING AGREEMENTS”") and the consummation of the transactions contemplated in the Offering Agreements and in the Registration Statement (including the issuance and sale of the 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 Fund with its obligations thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws of the Fund or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund or any of its assets, properties or operations (except for such violations that would not result in a Material Adverse Effect). As used herein, a “"REPAYMENT EVENT” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Fund.

Absence of Defaults and Conflicts. The Fund is not in violation of its charter the Articles or by-laws, each as amended or supplemented to date, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Fund is a party or by which it may be bound, or to which any of the property or assets of the Fund is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) except for such violations or defaults (A) that do not involve Offering Agreements (as defined below) and (B) that would not not, individually or in the aggregate, result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement dated as of October 3, 1994, as amended May 19, 1999, the Amended and Restated Master Custodian Agreement dated as of July 2, 2001, and the Transfer Agency and Service Agreement, the Custody Agreementdated as of January 1, the Stock Transfer Agency Agreement2011, the Fund Administration Servicing Agreement and the Fund Accounting Servicing Agreement as amended from time to time, last amended on July 1, 2016, referred to in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Transfer Agency Agreement,” respectively and collectively the “OFFERING AGREEMENTSOffering Agreements”) and the consummation of the transactions contemplated in the Offering Agreements and in the Registration Statement (including the issuance and sale of the 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 Fund with its obligations thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or breaches, defaults or liens, charges or encumbrances that would not not, individually or in the aggregate, result in a Material Adverse Effect), nor will such action result in (i) any violation of the provisions of the charter Articles or by-laws of the Fund or (ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund or any of its assets, properties or operations operations, except with respect to (except ii) only, for such violations that would not not, individually or in the aggregate, 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 Fund.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its subsidiaries or variable interest entities is not in violation of its charter or by-laws, Organizational Documents (as defined below) or in default (or with the giving of notices or lapse of time would be 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 it the Company or any of its subsidiaries or variable interest entities is a party or by which it any of them may be bound, or to which any of the property or assets of the Fund Company or any of its subsidiaries or variable interest entities is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) except for such violations or defaults that would not not, individually or in the aggregate, result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, 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 hereinDeposit Agreement, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated in the Offering Agreements herein or therein and in the Registration Statement (including the issuance and sale of the Securities and the Ordinary Shares underlying the 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 Fund Company with its obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any of its subsidiaries or variable interest entities pursuant to, the Agreements and Instruments (except for such conflicts, breaches breaches, defaults or defaults Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws Organizational Documents of the Fund Company or any of its subsidiaries or variable interest entities or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any of its subsidiaries or variable interest entities or any of their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. As used herein, a “REPAYMENT EVENTOrganizational Documents” means, with respect to any person, the memorandum of association, articles of association, articles of incorporation, certificate of incorporation, bylaws and any charter, partnership agreements, joint venture agreements or other organizational documents of such entity and any amendments thereto. A “Repayment Event” means any event or condition which that gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany or any of its subsidiaries or variable interest entities.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its subsidiaries is not in violation of its charter or by-lawslaws or partnership agreement, as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Fund Company or any of its subsidiaries is subject (collectively, “AGREEMENTS AND INSTRUMENTS”"Agreements and Instruments") except for such violations defaults as are disclosed in the Offering Memorandum or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Registration Rights Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Agreement Indenture and the Fund Accounting Servicing Agreement referred Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) Offering Memorandum and the consummation of the transactions contemplated herein, therein and in the Offering Agreements and in the Registration Statement Memorandum (including the issuance and sale of the Shares and Securities, the use of the proceeds from the sale of the Shares Securities as described in the General Disclosure Package and the Prospectus Offering Memorandum under the caption “"Use of Proceeds”" and the filing of the Registration Statement) and compliance by the Fund Company with its obligations thereunder hereunder, and under the Registration Rights Agreement, the Indenture and the Securities have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or a Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches breaches, defaults or defaults Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws bylaws or partnership agreement, as the case may be, of the Fund Company or any of its subsidiaries or, to the best of the Company's knowledge, any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any of its subsidiaries or any of their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. As used herein, a “REPAYMENT EVENT” "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness of the Company or any of its subsidiaries (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 FundCompany or any of its subsidiaries.

Absence of Defaults and Conflicts. The Fund is not in violation of its charter articles of incorporation or by-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it is a party or by which it may be bound, or to which any of the property or assets of the Fund is subject (collectively, “AGREEMENTS AND INSTRUMENTS”"Agreements and Instruments") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Agreement and the Fund Accounting Servicing Administration Agreement referred to in the Registration Statement Statement, the Custodian Services Agreement, dated as of [ ], 2003 between the Fund and PFPC Trust Company, and the Transfer and Dividend Disbursing Agent and Registrar Agreement, dated as of [ ], 2003 between the Fund and PFPC, Inc., (as used herein, individually the “Investment "Advisory Agreement,” " the “Custody "Administration Agreement,” " the “Stock "Custodian Services Agreement" and the "Transfer Agency And Registrar Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”" respectively) and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the 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 Fund with its obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter articles of incorporation or by-laws of the Fund or Fund, nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund or any of its assets, properties or operations (operations, except for such violations that would not result in a Material Adverse Effect). As used herein, a “REPAYMENT EVENT” "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Fund.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of ----------------------------------------- its subsidiaries is not in violation of its charter or charter, by-laws, laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it the Company or any of its subsidiaries is a party or by which it may be bound, bound or to which any of the property or assets of the Fund is Company or any of its subsidiaries may be subject (collectively, “AGREEMENTS AND INSTRUMENTS”) "Agreements and Instruments"), except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory AgreementIndenture, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Registration Rights Agreement and the Fund Accounting Servicing Agreement referred Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”) Offering Memorandum and the consummation of the transactions contemplated in herein the Offering Agreements and in the Registration Statement Memorandum (including the issuance and sale of the 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 Offering Memorandum under the caption “"Use of Proceeds”") and compliance by the Fund Company with its obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or a Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund Company or any of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that that, individually or in the aggregate, would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws of the Fund Company or any of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any of its subsidiaries or any of their assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. As used herein, a “REPAYMENT EVENT” "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany or any of its subsidiaries.

Absence of Defaults and Conflicts. The Fund is not in violation of its charter articles of incorporation or by-laws, each as amended from time to time, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which it is a party or by which it may be is bound, or to which any of the property or assets of the Fund is subject (collectively, “AGREEMENTS AND INSTRUMENTSAgreements and Instruments”) except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory AgreementManagement Agreement dated as of [•], 2007 between the Fund and the Investment Manager, the Custody AgreementInvestment Advisory Agreement dated as of [•], 2007 between the Investment Adviser and the Investment Manager, the Stock Administration Services Agreement dated as of [•], 2007 between the Fund and the Deutsche Investment Management Americas Inc., the Custodian Agreement dated as of [•], 2007 between the Fund and B▇▇▇▇ Brothers H▇▇▇▇▇▇▇ & Co. and the Transfer Agency Agreementand Service Agreement dated as of [•], 2007 between the Fund Administration Servicing Agreement and the Fund Accounting Servicing Agreement DWS S▇▇▇▇▇▇ Investments Service Company referred to in the Registration Statement (as used herein, individually the “Investment Advisory Management Agreement,” the “Custody Advisory Agreement,” “the “Administration Agreement,” the “Stock Custodian Agreement” and the “Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “OFFERING AGREEMENTS”respectively) and the consummation of the transactions contemplated in the Offering Agreements herein and in the Registration Statement (including the issuance and sale of the 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 Fund with its obligations thereunder hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter articles of incorporation or by-laws of the Fund Fund, each as amended from time to time, or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund or any of its assets, properties or operations (except for such violations that would not result in a Material Adverse Effect)operations. 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 Fund.