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 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 Instruments"), except for such 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 Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated in 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 Prospectus under the caption "Use of Proceeds") and compliance by the Fund with its obligations 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 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, 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. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting 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 charter, partnership agreement, limited liability company agreement, by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund Company or any of its Subsidiaries is a party or by which it or its properties 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"”), except for such defaults that would not result in a Material Adverse EffectEffect or that are otherwise specifically disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated in this Agreement herein and in the Registration Statement Statement, the Disclosure Package and the Final 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 Prospectus therein under the caption "“Use of Proceeds"”) and compliance by the Fund Company with its obligations under this Agreement hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or 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 to, the Agreements and Instruments (except for such conflicts, breaches breaches, defaults or defaults Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse EffectEffect or that are otherwise specifically disclosed in the Registration Statement, the Final Prospectus and the Disclosure Package), nor ; (b) do not and will such action not result in any violation of the provisions of the charter or the charter, partnership agreement, limited liability company agreement, by-laws or other organizational documents of the Fund, Company or any Subsidiary; and (c) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any Subsidiary or any of its their assets, properties or operationsoperations (except in the case of this clause (c) for such violations that would not result in a Material Adverse Effect). As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany or any Subsidiary.

Absence of Defaults and Conflicts. The Fund None of the Company, the Operating Partnership or any of their subsidiaries is not in violation of its charter declaration of trust, partnership agreement, charter, bylaws or by-laws similar organizational documents, 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 the Fund Company, the Operating Partnership or any of their subsidiaries is a party or by which it or its properties any of them may be bound, or to which any of the property or assets of the Fund Company, the Operating Partnership or any subsidiary is subject (collectively, "“Agreements and Instruments"), ”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated in this Agreement 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 Prospectus therein under the caption "“Use of Proceeds"”) and compliance by the Fund Company, the Operating Partnership and their subsidiaries with its their respective obligations under this Agreement 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 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, the Operating Partnership or any subsidiary pursuant to 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 declaration of trust, partnership agreement, charter, or bylaws, as the by-laws case may be, of the FundCompany, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company, the Operating Partnership or any subsidiary or any of its their assets, properties or operations. As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany, the Operating Partnership or any subsidiary.

Absence of Defaults and Conflicts. The Fund None of the Company, the Operating Partnership or any of their Subsidiaries is not in violation of its charter declaration of trust, partnership agreement, charter, bylaws or by-laws similar organizational documents, 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 the Fund Company, the Operating Partnership or any Subsidiary is a party or by which it or its properties any of them may be bound, or to which any of the property or assets of the Fund Company, the Operating Partnership or any Subsidiary is subject (collectively, "“Agreements and Instruments"), ”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated in this Agreement herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Shares Securities from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the use of the proceeds Net Proceeds from the sale of the Shares Securities as described in the Prospectus under the caption "“Use of Proceeds"”) and compliance by the Fund Company, the Operating Partnership and their Subsidiaries with its their respective obligations under this Agreement 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 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, the Operating Partnership or any Subsidiary pursuant to to, the Agreements and Instruments (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 declaration of trust, partnership agreement, charter, or bylaws, as the by-laws case may be, of the FundCompany, the Operating Partnership or any Subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company, the Operating Partnership or any Subsidiary or any of its their assets, properties or operations. As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany, the Operating Partnership or any Subsidiary.

Absence of Defaults and Conflicts. The Fund None of the Simon Entities or, to the knowledge of the Operating Partnership, any joint ventures or partnerships in which Simon Entities have an equity interest (“Property Partnerships”) is not in violation of its charter or charter, by-laws 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 obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund each entity is a party or by which it or its properties any of them may be bound, or to which any of the its property or assets of the Fund is or any Property may be bound or subject (collectively, "“Agreements and Instruments"”), except for such violations (other than with respect to the charter, by-laws, partnership agreement, or other organizational document of the Company, the Operating Partnership or any significant subsidiary) or defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, the Investment Advisory AgreementNotes, the Custody Agreement, Indenture and any other agreement or instrument entered into or issued or to be entered into or issued by the Auction Agent Agreement and Company or the Letter of Representations referred to Operating Partnership in connection with the transactions contemplated hereby or thereby or in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Prospectus and the consummation of the transactions contemplated in this Agreement herein 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 Notes as described in the Prospectus under the caption "“Use of Proceeds"”) and compliance by the Fund Operating Partnership with its obligations under this Agreement hereunder and thereunder have been duly authorized by all necessary corporate action action, and do not and will shall not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance Lien upon any property assets, properties or assets operations of the Fund Operating Partnership or any other Simon Entity or any Property Partnership pursuant to the to, any Agreements and Instruments (Instruments, except for such conflicts, breaches breaches, defaults, Repayment Events or defaults or liensLiens, charges or encumbrances that that, singly or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect), nor will shall such action result in any violation of the provisions of the charter OP Partnership Agreement or certificate of limited partnership of the Operating Partnership or the by-laws organizational documents of the Fund, any other Simon Entity or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Operating Partnership, any other Simon Entity or any Property Partnership or any of its their assets, properties or operations, except for such violations (other than with respect to the charter, by-laws, partnership agreement, or other organizational document of the Company, the Operating Partnership or any significant subsidiary) that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’s behalf) the right to require the repurchase, redemption or repayment of all or a material portion of such indebtedness by any Simon Entity or, to the Fundknowledge of the Operating Partnership, any Property Partnership.

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-laws bylaws, 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 the Fund Company or any of its subsidiaries is a party or by which it or its properties 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"”), except for any such 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 Auction Agent Agreement Indenture and the Letter of Representations referred to in the Registration Statement (as used hereinSecurities, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated in this Agreement 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 hereunder and under this 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 a 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 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 the by-laws bylaws, each as amended, 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 for any such violations with respect to this clause (II) as would not, individually or in the aggregate, result in a Material Adverse Effect. As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’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 or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund Company or any of its subsidiaries is a party or by which it or its properties 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"), ”) except for such 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 Auction Agent Agreement Securities and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Pledged Bonds and the consummation of the transactions contemplated in this Agreement herein and in the Registration Statement Statement, the 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 any preliminary prospectus and the Prospectus under the caption "“Use of Proceeds"”) and compliance by the Fund Company with its obligations hereunder and under this Agreement 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 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 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 the 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 operationsoperations (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 Event" ” means any 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 charter, by-laws or other organizational documents. Further, neither the Company nor any of the Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund Company or any of the Subsidiaries is a party or by which it or its properties 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"), ”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Deposit Agreement, the Custody Warrant Agreement, if applicable, the Auction Agent Investment Advisory Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Administration Agreement and the consummation of the transactions contemplated in this Agreement herein and therein 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 under this Agreement have been duly authorized by all necessary corporate action 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 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 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), nor will such action result in any violation of the provisions of the charter or the 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. As used herein, a "“Repayment Event" ” means any 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 BIP Entities is not in violation of its limited partnership agreement, articles, charter or by-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 any of the Fund BIP Entities is a party or by which it or its properties any of them may be bound, or to which any of the BIP Entities or the property or assets of any of the Fund BIP Entities is subject (collectively, "“Agreements and Instruments"”), except for such defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated in this Agreement therein and in the Registration Statement Disclosure Package, the U.S. Prospectus and the Supplemented Canadian Prospectus (including the issuance authorization, issuance, sale and sale delivery of the Shares Units and Additional Units and the use of the proceeds from the sale of the Shares Units and the Additional Units as described in the Disclosure Package, the U.S. Prospectus and the Supplemented Canadian Prospectus under the caption "“Use of Proceeds"”) and compliance by the Fund BIP with its obligations under this Agreement 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 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 any of the Fund BIP Entities pursuant to 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 the by-by laws of any of the FundBIP Entities, the resolutions of the general partner, unitholders, shareholders, directors or any committee of directors of any of the BIP Entities or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or instrumentality, court, domestic or foreign, or stock exchange having jurisdiction over any of the Fund BIP Entities or any of its their assets, properties or operationsoperations (except for such violations or conflicts that would not result in a Material Adverse Effect). As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by any of the FundBIP Entities.

Absence of Defaults and Conflicts. The Fund Neither the Company, the Operating Partnership nor any of their respective subsidiaries is not (i) in violation of its charter Organizational Documents (as defined below) or by-laws (ii) 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 performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the 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 Company Document (collectively, "Agreements and Instruments"as defined below), except except, in the case of clause (ii) above, for such defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter issuance of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Securities and the consummation of the other transactions contemplated in this Agreement herein and therein and in the Registration Statement Statement, the 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 Disclosure Package and the Prospectus under the caption "“Use of Proceeds"”) and compliance by each of the Fund Company and the Operating Partnership with its obligations 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) underunder any Company Documents, or result in the creation or imposition of any lien, charge or encumbrance Lien upon any property or assets of the Fund pursuant to Company, the Agreements and Instruments (except for such conflicts, breaches Operating Partnership or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect)any of their respective subsidiaries, nor will such action result in any violation of the provisions of the charter or the by-laws Organizational Documents of the FundCompany, the Operating Partnership or any of their respective subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any of its subsidiaries or any of their respective assets, properties or operations. As The term “Company Documents” as used herein, a "Repayment Event" herein means any event contracts, indentures, guarantees, mortgages, deeds of trust, loan or condition credit agreements, letter of credit facilities, security agreements, bonds, notes, debentures, evidences of indebtedness, leases or other instruments or agreements to which gives the holder Company, the Operating Partnership or any of their respective subsidiaries is a party or by which the Company, the Operating Partnership or any of their respective subsidiaries is bound or to which any of the property or assets of the Company, the Operating Partnership or any of their respective subsidiaries is subject. The term “Organizational Documents” as used herein means (a) in the case of a corporation, its charter and bylaws; (b) in the case of a limited or general partnership, its partnership certificate, certificate of formation or similar organizational document and its partnership agreement; (c) in the case of a limited liability company, its articles of organization, certificate of formation or similar organizational documents and its operating agreement, limited liability company agreement, membership agreement or other similar agreement; (d) in the case of a trust, its certificate of trust, certificate of formation or similar organizational document and its trust agreement or other similar agreement; and (e) in the case of any noteother entity, debenture or other evidence of indebtedness (or any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion organizational and governing documents of such indebtedness by the Fundentity.

Absence of Defaults and Conflicts. The Fund None of the Company, the Operating Partnership or any of their respective subsidiaries is not (A) in violation of its charter charter, bylaws, certificate of limited partnership, partnership agreement or by-laws or other organizational document, (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 the Fund Company, the Operating Partnership or any of their respective subsidiaries is a party or by which it or its properties any of them may be bound, or to which any of the property properties or assets of the Fund Company, the Operating Partnership or any such subsidiary is subject (collectively, "“Agreements and Instruments"”), except except, for such 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 Auction Agent Agreement and the Letter of Representations referred to Effect or as set forth in or contemplated in the Registration Statement (as used hereinStatement, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" General Disclosure Package and the "Letter of Representations," respectivelyProspectus or (C) and to the consummation knowledge of the transactions contemplated Company or the Operating Partnership, in 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 Prospectus under the caption "Use of Proceeds") and compliance by the Fund with its obligations 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 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, 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 or any of its their respective subsidiaries or any of their assets, properties or operationsother operations (each, a “Governmental Entity”), except, in the case of this clause (C), for such violations that would not result in a Material Adverse Effect or as set forth in or contemplated in the Registration Statement, the General Disclosure Package and the Prospectus. The execution, delivery and performance of this Agreement and of any Terms Agreement and the consummation of the transactions contemplated herein or in any Terms Agreement and in the Registration Statement, the General Disclosure Package and the Prospectus and compliance by the Company and the Operating Partnership with their respective obligations hereunder and under any Terms Agreement: (i) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company, the Operating Partnership or any of their respective subsidiaries pursuant to the Agreements and Instruments (except, in the case of this clause (i), for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect or as set forth in or contemplated in the Registration Statement, the General Disclosure Package and the Prospectus), (ii) will not result in any violation of the provisions of the charter, bylaws, certificate of limited partnership, partnership agreement or other organizational documents of the Company, the Operating Partnership or any of their respective subsidiaries or (iii) will not result in a violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any Governmental Entity (except, for such violations that would not result in a Material Adverse Effect or as set forth in or contemplated in the Registration Statement, the General Disclosure Package and the Prospectus). As used herein, a "“Repayment Event" ” means any 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 or any of their respective subsidiaries.

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 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 Instruments"), except for such 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 Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated in 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 Prospectus under the caption "Use of Proceeds") and compliance by the Fund with its obligations 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 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, 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. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting 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 Except as disclosed in the Registration Statement, (A) neither the Company nor any of its Significant Subsidiaries is not in violation of its charter Articles of Incorporation, Regulations of the Board of Directors, Regulations of the Executive Management Board, Share Handling Regulations or by-laws similar organizational documents, (B) neither the Company nor any of its subsidiaries is in violation of any law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, Japanese or foreign, having jurisdiction over the Company or any subsidiary or any of their respective assets, properties or operations, or (C) neither the Company nor any of its subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund Company or any of its subsidiaries is a party or by which it or its properties 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")”) except, except in the case of clause (B) or (C) above, for such violations or defaults that would not not, singly or in the aggregate, result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement Indenture and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Securities and the consummation of the transactions contemplated in this Agreement 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 Prospectus under the caption "“Use of Proceeds"”) and compliance by the Fund Company with its obligations under this Agreement 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 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 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 the by-laws Articles of Incorporation, Regulations of the FundBoard of Directors, Regulations of the Executive Management Board, Share Handling Regulations or similar organizational documents of the Company or any subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic Japanese or foreign, having jurisdiction over the Fund Company or any subsidiary or any of its their respective assets, properties or operationsoperations or of any Agreements and Instruments. As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’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 Parent Guarantor nor any of their subsidiaries is not in violation of its operating agreement, charter or by-laws 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 the Fund Company, the Parent Guarantor or any of their subsidiaries is a party or by which it they or its properties any of them may be bound, or to which any of the property or assets of the Fund Company, the Parent Guarantor or any subsidiary is subject (collectively, "“Agreements and Instruments"), ”) except for such 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 Auction Agent Agreement Indenture and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Securities and the consummation of the transactions contemplated in this Agreement 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 Prospectus under the caption "“Use of Proceeds"”) and compliance by the Fund Company and the Parent Guarantor with its their respective obligations hereunder and under this Agreement the Indenture and the Securities have been duly authorized by all necessary corporate action or limited liability company action, as applicable, and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or 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, the Parent Guarantor or any subsidiary pursuant to to, the Agreements and Instruments (except for such conflicts, breaches breaches, defaults or defaults Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of (i) the operating agreement, charter or the by-laws laws, as applicable, of the FundCompany, the Parent Guarantor or any subsidiary or (ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company, the Parent Guarantor or any subsidiary or any of its their assets, properties or operations, except, with respect to section (ii) above, for such violations that would not result in a Material Adverse Effect. As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany, the Parent Guarantor or any subsidiary.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its subsidiaries is not in violation of the provisions 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 the Fund Company or any of its subsidiaries is a party or by which it or its properties 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 Instruments"), except for such 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 AgreementNotes and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated by the Prospectus, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated in this Agreement 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 Prospectus under the caption "Use of Proceeds") and the compliance by the Fund Company with its obligations hereunder and under this Agreement the Indenture, the Notes and such other agreements or instruments have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or the 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 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, 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. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting 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 Company, the Operating Partnership or any of their Subsidiaries is not in violation of its charter declaration of trust, partnership agreement, charter, bylaws or by-laws similar organizational documents, 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 the Fund Company, the Operating Partnership or any of their Subsidiaries is a party or by which it or its properties any of them may be bound, or to which any of the property or assets of the Fund Company, the Operating Partnership or any Subsidiary is subject (collectively, "“Agreements and Instruments"), ”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated in this Agreement 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 Prospectus therein under the caption "“Use of Proceeds"”) and compliance by the Fund Company, the Operating Partnership and their Subsidiaries with its their respective obligations under this Agreement 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 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, the Operating Partnership or any Subsidiary pursuant to 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 declaration of trust, partnership agreement, charter, or bylaws, as the by-laws case may be, of the FundCompany, the Operating Partnership 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 Operating Partnership or any Subsidiary or any of its their assets, properties or operations. As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany, the Operating Partnership or any Subsidiary.

Absence of Defaults and Conflicts. The Fund None of the Partnership Entities is not in violation of its limited partnership agreement, articles, charter or by-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 any of the Fund Partnership Entities is a party or by which it or its properties any of them may be bound, or to which any of the Partnership Entities or the property or assets of any of the Fund Partnership Entities is subject (collectively, "“Agreements and Instruments"”), except for such defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated in this Agreement therein and in the Registration Statement Disclosure Package, the U.S. Prospectus and the Supplemented Canadian Prospectus (including the issuance authorization, issuance, sale and sale delivery of the Shares Units and Additional Units and the use of the proceeds from the sale of the Shares Units and the Additional Units as described in the Disclosure Package, the U.S. Prospectus and the Supplemented Canadian Prospectus under the caption "“Use of Proceeds"”) and compliance by the Fund Partnership with its obligations under this Agreement 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 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 any of the Fund Partnership Entities pursuant to 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 the by-by laws of any of the FundPartnership Entities, the resolutions of the general partner, unitholders, shareholders, directors or any committee of directors of any of the Partnership Entities or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or instrumentality, court, domestic or foreign, or stock exchange having jurisdiction over any of the Fund Partnership Entities or any of its their assets, properties or operationsoperations (except for such violations or conflicts that would not result in a Material Adverse Effect). As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by any of the FundPartnership Entities.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its subsidiaries is not (A) in violation of its charter respective articles of incorporation or by-laws bylaws or similar constitutive documents, 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 the Fund Company or any of its subsidiaries is a party or by which it or its properties 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"”), except for any such 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 Auction Agent Agreement Indenture and the Letter of Representations referred to in the Registration Statement (as used hereinSecurities, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated in this Agreement 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 hereunder and under this 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 a 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 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 the by-laws bylaws, each as amended, of the FundCompany 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 for any such violations with respect to this clause (II) as would not, individually or in the aggregate, result in a Material Adverse Effect. As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’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 Except as disclosed in the Registration Statement, (i) neither the Company nor any of its Significant Subsidiaries is not in violation of its charter Articles of Incorporation, Regulations of the Board of Directors, Regulations of the Executive Management Board, Share Handling Regulations or by-laws similar organizational documents, (ii) neither the Company nor any of its subsidiaries is in violation of any law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, Japanese or foreign, having jurisdiction over the Company or any subsidiary or any of their respective assets, properties or operations, or (iii) neither the Company nor any of its subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund Company or any of its subsidiaries is a party or by which it or its properties 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")”) except, except in the case of clause (ii) or (iii) above, for such violations or defaults that would not not, singly or in the aggregate, result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement Indenture and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Securities and the consummation of the transactions contemplated in this Agreement 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 Prospectus under the caption "“Use of Proceeds"”) and compliance by the Fund Company with its obligations under this Agreement 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 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 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 the by-laws Articles of Incorporation, Regulations of the FundBoard of Directors, Regulations of the Executive Management Board, Share Handling Regulations or similar organizational documents of the Company or any subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic Japanese or foreign, having jurisdiction over the Fund Company or any subsidiary or any of its their respective assets, properties or operationsoperations or of any Agreements and Instruments. As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’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 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 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 Instruments"), except for such 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 Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated in 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 Prospectus under the caption "Use of Proceeds") and compliance by the Fund with its obligations 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 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, 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. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting 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 Partnership Entities is not in violation of its limited partnership agreement, articles, charter or by-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 any of the Fund Partnership Entities is a party or by which it or its properties any of them may be bound, or to which any of the Partnership Entities or the property or assets of any of the Fund Partnership Entities is subject (collectively, "“Agreements and Instruments"”), except for such defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated in this Agreement therein and in the Registration Statement Disclosure Package, the U.S. Prospectus, the Canadian Preliminary Supplement and the Supplemented Canadian Prospectus (including the issuance sale and sale delivery of the Exchangeable Shares and the use Additional Exchangeable Shares, if any, and the authorization, issuance and delivery of any Units upon the proceeds from the sale exchange, redemption or acquisition of the any Exchangeable Shares as described in the Prospectus under the caption "Use of Proceeds"or Additional Exchangeable Shares, if any) and compliance by each of BEPC and the Fund Partnership with its obligations under this Agreement 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 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 any of the Fund Partnership Entities pursuant to 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 the by-by laws of any of the FundPartnership Entities, the resolutions of the general partner, unitholders, shareholders, directors or any committee of directors of any of the Partnership Entities or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or instrumentality, court, domestic or foreign, or stock exchange having jurisdiction over any of the Fund Partnership Entities or any of its their assets, properties or operationsoperations (except for such violations or conflicts that would not result in a Material Adverse Effect). As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by any of the FundPartnership Entities.

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-laws bylaws, 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 the Fund Company or any of its subsidiaries is a party or by which it or its properties 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"”), except for any such 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 Auction Agent Agreement Indenture and the Letter of Representations referred to in the Registration Statement (as used hereinSecurities, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated in this Agreement 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 hereunder and under this 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 a 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 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 the by-laws bylaws, each as amended, of the FundCompany 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 for any such violations with respect to this clause (II) as would not, individually or in the aggregate, result in a Material Adverse Effect. As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’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 declaration of trust 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 the Fund it 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 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 Administration Agreement, the Custody Agreement, the Auction Agent Stock Transfer Agency Agreement and the Letter of Representations Auction Agency Agreement referred to in the Registration Statement (as used herein, the "Advisory Management Agreement," the ", Administration Agreement," the "Custody Agreement," and the "Auction Stock Transfer Agency Agreement" and the "Letter of Representations,Auction Agency Agreement" respectively) and the consummation of the transactions contemplated in this Agreement 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 Prospectus under the caption "Use of Proceeds") and compliance performance by the Fund with of its obligations under this Agreement 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 violate 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 conflictsviolations, 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 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 operationsoperations (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 of its consolidated subsidiaries is not (A) in violation of its charter articles of incorporation or by-laws bylaws, 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 the Fund Company or any of its consolidated subsidiaries is a party or by which it or its properties any of them may be bound, or to which any of the property or assets of the Fund Company or any of its consolidated subsidiaries is subject (collectively, "“Agreements and Instruments"”), except for any such defaults with respect to this clause (B) that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement Indenture and the Letter of Representations referred to in the Registration Statement (as used hereinSecurities, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated in this Agreement 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 hereunder and under this 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 a 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 consolidated subsidiaries pursuant to 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 the by-laws bylaws, each as amended, of the Fund, Company or any of its consolidated 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 consolidated subsidiaries or any of their assets, properties or operations, except for any such violations with respect to this clause (II) as would not, individually or in the aggregate, result in a Material Adverse Effect. As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’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 consolidated subsidiaries.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its Subsidiaries, and to the Company’s knowledge, none of the Company’s other subsidiaries is not in violation of its charter or charter, by-laws laws, operating agreement or any organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund Company or its subsidiaries, is a party or by which it or its properties any of them may be bound, or to which any of the property or assets of the Fund Company or its subsidiaries is subject (collectively, "“Agreements and Instruments"”), except for such defaults that would not reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance of this AgreementAgreement and, except as disclosed in the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement General Disclosure Package and the Letter of Representations referred to in the Registration Statement (as used hereinProspectus, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated in this Agreement 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 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 Company or any subsidiary, pursuant to to, the Agreements and Instruments (except for such conflicts, breaches breaches, defaults or defaults Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or the charter, by-laws laws, operating agreement or any similar organizational documents of the FundCompany 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 operationsoperations (other than foreign or state securities or blue sky laws). As used hereinin this Agreement, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’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 Simon Entities or any Property Partnership is not in violation of its charter or charter, by-laws 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 obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund each entity is a party or by which it or its properties any of them may be bound, or to which any of the its property or assets of the Fund is or any Portfolio Property may be bound or subject (collectively, "Agreements and Instruments"), except for such violations (other than with respect to the charter, by-laws, partnership agreement, or other organizational document of such entities) or defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, the Investment Advisory AgreementNotes, the Custody AgreementIndenture, the Auction Agent Registration Rights Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the Letter of Representations referred to Operating Partnership in connection with the transactions contemplated hereby or thereby or in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Offering Memorandum and the consummation of the transactions contemplated in this Agreement herein and in the Registration Statement Offering Memorandum (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 Prospectus under the caption "Use of Proceeds") and compliance by the Fund Operating Partnership with its obligations under this Agreement hereunder and thereunder have been duly authorized by all necessary corporate action partnership action, and do not and will shall not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or 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 assets, properties or assets operations of the Fund Operating Partnership or any other Simon Entity or any Property Partnership pursuant to the to, any Agreements and Instruments (Instruments, except for such conflicts, breaches or defaults breaches, defaults, Repayment Events or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect), nor will shall such action result in any violation of the provisions of the charter partnership agreement and certificate of limited partnership of the Operating Partnership or the by-laws organizational documents of the Fund, any other Simon Entity or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Operating Partnership, any other Simon Entity or any Property Partnership or any of its their assets, properties or operations, except for such violations that would not have a Material Adverse Effect. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a material portion of such indebtedness by the FundOperating Partnership, any other Simon Entity or any Property Partnership.

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, bylaws or by-laws other organizational or governing documents 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 the Fund Company or any of its Subsidiaries is a party or by which it or its properties 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"), ”) except for such defaults that would not 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 Auction Agent Agreement Company and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Bank and the consummation of the transactions contemplated in this Agreement 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 under this Agreement 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 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 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, bylaws or the by-laws other organizational or governing documents of the Fund, Company or any of the Subsidiaries or any material violation of 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. As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness or obligation of the Company or any of its Subsidiaries (or any person acting on such holder's ’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 of the Subsidiaries.

Absence of Defaults and Conflicts. The Fund Company 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 the Fund Company is a party or by which it or its properties may be bound, or to which any of the property assets, properties or assets operations of the Fund Company is subject (collectively, "“Agreements and Instruments"”), except for such defaults that would not result in a Material Adverse Effect; and the Change. The execution, delivery and performance of this Agreement, the Investment Advisory each applicable Terms Agreement, the Custody AgreementIndenture, the Auction Agent Agreement Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Letter of Representations referred to Company in connection with the transactions contemplated hereby or thereby or in the Registration Statement (as used hereinStatement, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" General Disclosure Package and the "Letter of Representations," respectively) Prospectus and the consummation of the transactions contemplated in this Agreement 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 Prospectus under the caption "Use of Proceeds"therein) and compliance by the Fund Company with its obligations under this Agreement hereunder and thereunder have been duly authorized by all necessary corporate 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 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 assets, properties or assets operations of the Fund Company pursuant to the to, 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 organizational documents or the by-laws of the Fund, Company or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any of its assets, properties or operations. As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany.

Absence of Defaults and Conflicts. The Fund is not in violation of its charter agreement and declaration of trust 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 the Fund it 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 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 Portfolio Management Agreement, the Auction Agent Custodian Agreement and the Letter of Representations Transfer Agency Services Agreement referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody “Investment Management Agreement," ” the "Auction “Portfolio Management Agreement" ,” the “Custodian Agreement” and the "Letter of Representations“Transfer Agency Services Agreement," ” respectively) and the consummation of the transactions contemplated in this Agreement 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 Prospectus under the caption "“Use of Proceeds"”) and compliance by the Fund with its obligations under this Agreement 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 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 agreement and declaration of trust 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, other than State securities or “blue sky” laws applicable in connection with the purchase and distribution of the Securities by the Underwriters pursuant to this Agreement. As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Fund.

Absence of Defaults and Conflicts. The Fund None of the Company, the Operating Partnership or any Subsidiary is not in violation of its charter or declaration of trust, partnership agreement, charter, by-laws or other governing instrument ("Governing Instruments") or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund Company, the Operating Partnership or any Subsidiary is a party or by which it or its properties any of them may be bound, or to which any of the property or assets of the Fund Company, the Operating Partnership or any Subsidiary is subject (collectively, "Agreements and Instruments"), ) except for such violations or defaults of any Agreements or Instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated in this Agreement herein and in the Registration Statement 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 Prospectus under the caption "Use of Proceeds") and compliance by the Fund Company and the Operating Partnership with its their respective obligations under this Agreement hereunder have been duly authorized by all necessary corporate requisite 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, the Operating Partnership or any Subsidiary pursuant to 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 the by-laws Governing Instruments of the FundCompany, the Operating Partnership 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 Operating Partnership or any Subsidiary or any of its their assets, properties or operations, except for such violations that would not have a Material Adverse Effect. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a material portion of such indebtedness by the FundCompany, the Operating Partnership 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-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 the Fund Company or any of its subsidiaries is a party or by which it or its properties 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"), ) except for such 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 Auction Agent Agreement Indenture and the Letter of Representations 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, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Offering Memorandum and the consummation of the transactions contemplated in this Agreement herein and in the Registration Statement Offering 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 Prospectus Offering Memorandum under the caption "Use of Proceeds") and compliance by the Fund Company with its obligations under this Agreement 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 a 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 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 the 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 or any of their assets or properties, properties which violation would result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the charter or operationsby-laws of the Company or any of its subsidiaries. No event of default exists under any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument constituting Senior Indebtedness (as defined in the Indenture). As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's 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 Neither the Company nor its consolidated subsidiaries are (A) in violation of its charter respective articles of incorporation or by-laws bylaws, 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 the Fund Company or its consolidated subsidiaries is a party or by which it or its properties any of them may be bound, or to which any of the property or assets of the Fund Company or its consolidated subsidiaries is subject (collectively, "“Agreements and Instruments"”), except for any such defaults with respect to this clause (B) that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement Indenture and the Letter of Representations referred to in the Registration Statement (as used hereinSecurities, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated in this Agreement 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 hereunder and under this 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 a 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 subsidiaries pursuant to 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 the by-laws bylaws, each as amended, of the FundCompany or its consolidated 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 its consolidated subsidiaries or any of its their assets, properties or operations, except for any such violations with respect to this clause (II) as would not, individually or in the aggregate, result in a Material Adverse Effect. As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’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 subsidiaries.

Absence of Defaults and Conflicts. The Fund is not in violation of its charter declaration of trust 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 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 Instruments"), except for such 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 Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated in 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 Prospectus under the caption "Use of Proceeds") and compliance by the Fund with its obligations 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 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 the 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. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting 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 the subsidiaries is not in violation of its charter declaration of trust (“Original Declaration of Trust”) or by-laws bylaws (“Original Company Bylaws”), in the case of the Company, or certificate of formation or limited liability company agreement (or like organizational documents) (each a “Subsidiary Governing Document”), in the case of any of the subsidiaries, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund Company or such subsidiary 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 Company or any of its Subsidiaries is subject (collectively, "“Agreements and Instruments"”), except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, Agreement by the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Company and the consummation by the Company of the transactions contemplated in this Agreement 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 Prospectus under the caption "“Use of Proceeds"”) and compliance by the Fund Company with its obligations under this Agreement 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 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 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 Original Declaration of Trust, the by-laws Original Company Bylaws, the amended and restated declaration of trust of the FundCompany, as effective at the Closing Time (“Amended Declaration of Trust”), the amended and restated bylaws of the Company, as effective at the Closing Time (“Amended Company Bylaws”), any Subsidiary Governing Document or any 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. As used herein, a "“Repayment Event" ” means any 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 Trust is not in violation of its charter declaration of trust 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 the Fund it 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 Trust 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 Administration Agreement, the Auction Custodian Agreement, the Transfer Agent and Service Agreement and the Letter of Representations Auction Agency Agreement referred to in the Registration Statement (as used herein, the "Advisory Agreement," the "Administration Agreement", the "Custody Custodian Agreement," ", the "Auction Transfer Agency Agreement" and the "Letter of Representations," Auction Agency Agreement", respectively) and the consummation of the transactions contemplated in this Agreement 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 Prospectus under the caption "Use of Proceeds") and compliance by the Fund Trust with its obligations under this Agreement 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 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 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 declaration of trust or the by-laws of the Fund, Trust 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. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder'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 Neither the Company nor any of its subsidiaries 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 the Fund Company or any of its subsidiaries is a party or by which it or its properties 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"), ) except for such 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 Auction Agent Warrant Agreement and the Letter of Representations 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, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Offering Memorandum and the consummation of of' the transactions contemplated in this Agreement herein and in the Registration Statement Offering 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 Prospectus Offering Memorandum under the caption "Use of Proceeds") and compliance by the Fund Company with its obligations under this Agreement 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 a 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 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 the 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 operationsany of their assets or properties. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or debenture, other evidence of indebtedness or preferred stock (or any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness or preferred stock by the FundCompany or any of its subsidiaries.

Absence of Defaults and Conflicts. The Fund None of the Simon Entities or any Property Partnership is not in violation of its charter or charter, by-laws 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 obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund each entity is a party or by which it or its properties any of them may be bound, or to which any of the its property or assets of the Fund is or any Property may be bound or subject (collectively, "“Agreements and Instruments"”), except for such violations (other than with respect to the charter, by-laws, partnership agreement, or other organizational document of such entities) or defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the Letter of Representations referred to Company or the Operating Partnership in connection with the transactions contemplated hereby or thereby or in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Prospectus and the consummation of the transactions contemplated in this Agreement 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 Prospectus under the caption "Use of Proceeds") and compliance by each of the Fund Company and the Operating Partnership with its their respective obligations under this Agreement hereunder and thereunder have been duly authorized by all necessary corporate action action, and do not and will shall not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or 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 assets, properties or assets operations of the Fund Company, the Operating Partnership or any other Simon Entity or any Property Partnership pursuant to the to, any Agreements and Instruments (Instruments, except for such conflicts, breaches or defaults breaches, defaults, Repayment Events or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect), nor will shall such action result in any violation of the provisions of the charter or the Charter and by-laws of the FundCompany, the OP Partnership Agreement or certificate of limited partnership of the Operating Partnership or the organizational documents of any other Simon Entity or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company, the Operating Partnership, any other Simon Entity or any Property Partnership or any of its their assets, properties or operations, except for such violations (other than with respect to the charter, by-laws, partnership agreement, or other organizational document of such entities) that would not have a Material Adverse Effect. As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’s behalf) the right to require the repurchase, redemption or repayment of all or a material portion of such indebtedness by the FundCompany, the Operating Partnership, any other Simon Entity 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 Organizational Documents (as defined below) or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the 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 Company Document (collectively, "Agreements and Instruments"as defined below), except for such defaults that would not not, individually or in the aggregate, result in a Material Adverse Effect; . The execution and delivery of, and the executionperformance by the Company of its obligations under, delivery and performance of this New Notes Purchase Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement New Notes Indenture and the Letter of Representations referred to in the Registration Statement (as used hereinNew Notes, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated in this Agreement 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 Prospectus under the caption "Use of Proceeds") and compliance by the Fund with its obligations under this Agreement have been duly authorized by all necessary corporate action and therein, do not and 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 default, Termination Event or Repayment Event (each as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance Lien upon any property or assets of the Fund Company or any of its subsidiaries pursuant to the Agreements and Instruments (to, any Company Documents, except for such conflicts, breaches or breaches, defaults or liens, charges or encumbrances Liens that would not neither, individually or in the aggregate, result in a Material Adverse Effect)Effect nor materially and adversely affect the performance by the Company of its obligations under this New Notes Purchase Agreement or the New Notes Indenture, nor will such action result in any violation of (i) the provisions of the charter or the by-laws Organizational Documents 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 respective assets, properties or operations, except, in the case of clause (ii), for such violations that would neither, individually or in the aggregate, result in a Material Adverse Effect nor materially and adversely affect the performance by the Company of its obligations under this New Notes Purchase Agreement. As used hereinFor the purposes hereof, a "Repayment Event" the following capitalized terms shall have the following meanings: (A) “Company Documents” means any event all other contracts, indentures, mortgages, deeds of trust, loan or condition which gives the holder credit agreements, bonds, notes, debentures, evidences of any noteindebtedness, debenture swap agreements, hedging agreements, leases or other evidence of indebtedness (instruments or agreements to which the Company or any person acting on such holder's behalf) of its subsidiaries is a party or by which the right Company or any of its subsidiaries is bound or to require which any of the repurchaseproperty or assets of the Company or any of its subsidiaries is subject, redemption including the Existing Indentures and any other instruments, agreements and documents filed or repayment of all incorporated by reference as exhibits to the Annual Report or a portion of such indebtedness any subsequent report filed by the Fund.Company under the Exchange Act pursuant to Rule 601(b)(10) of Regulation S-K of the Commission; provided that if

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its subsidiaries 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 the Fund Company or any of its subsidiaries is a party or by which it or its properties 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"), ”) except for such 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, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the Letter of Representations referred to Company in connection with the transactions contemplated hereby or thereby or in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Prospectus and the consummation of the transactions contemplated in this Agreement 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 Prospectus under the caption "“Use of Proceeds"”) and compliance by the Fund Company with its obligations under this Agreement 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 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 to to, the Agreements and Instruments (except for such conflicts, breaches breaches, defaults or defaults Repayment Events or liens, charges or encumbrances that that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or the by-laws of the FundCompany or any of its subsidiaries or, except such violations that, individually or in the aggregate, would not reasonably be expected to 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 of its subsidiaries or any of their assets, properties or operations. As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany or any of its subsidiaries.

Absence of Defaults and Conflicts. The Fund Neither PSEG nor any of its Subsidiaries is not in violation of its charter Amended and Restated Certificate of Incorporation, other organization document 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 the Fund PSEG or any of its Subsidiaries is a party or by which it or its properties any of them may be bound, or to which any of the property assets, properties or assets operations of the Fund PSEG or any of its Subsidiaries is subject (collectively, "Agreements and Instruments"), except for such 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 Auction Agent applicable Terms Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by PSEG in connection with the Letter of Representations referred to transactions contemplated hereby or thereby or in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Prospectus and the consummation of the transactions contemplated in this Agreement 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 Prospectus under the caption "Use of Proceeds"" as well as the issuance of any Underlying Securities) and compliance by the Fund PSEG with its obligations under this Agreement 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 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 assets, properties or assets operations of the Fund PSEG or any of its subsidiaries pursuant to the to, 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 the by-laws of the Fund, PSEG 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 PSEG or any of its subsidiaries or any of their assets, properties or operations. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundPSEG or any of its subsidiaries.

Absence of Defaults and Conflicts. The Fund is not in violation of its charter agreement and declaration of trust 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 the Fund it 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 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 Portfolio Management Agreement, the Auction Agent Custodian Agreement and the Letter of Representations Transfer Agency Services Agreement referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Investment Management Agreement," the "Auction Portfolio Management Agreement," the "Custodian Agreement" and the "Letter of RepresentationsTransfer Agency Services Agreement," respectively) and the consummation of the transactions contemplated in this Agreement 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 Prospectus under the caption "Use of Proceeds") and compliance by the Fund with its obligations under this Agreement 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 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 agreement and declaration of trust 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, other than State securities or "blue sky" laws applicable in connection with the purchase and distribution of the Securities by the Underwriters pursuant to this Agreement. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's 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 ----------------------------------- Amgen-Regeneron Partners is not in violation of its charter or by-laws or the partnership agreement, as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund Company or Amgen-Regeneron Partners is a party or by which it or its properties any of them may be bound, or to which any of the property or assets of the Fund Company or Amgen-Regeneron Partners is subject (collectively, "Agreements and Instruments"), ) except for such -------------------------- defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, Agreement by the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Company and the consummation of the transactions contemplated in this Agreement herein and in the Registration Statement (including the issuance and sale of the Shares Initial Securities and the Option Securities (if any) and the use of the proceeds from the sale of the Shares Initial Securities and the Option Securities (if any) as described in the Prospectus under the caption "Use of Proceeds") and --------------- compliance by the Fund Company with its obligations under this Agreement 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 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 Amgen- Regeneron Partners 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 FundCompany or the partnership agreement of Amgen-Regeneron Partners, or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or Amgen-Regeneron Partners or any of its their assets, properties or operationsoperations except for any such violation that could not be expected to result in a Material Adverse Effect. As used herein, a "Repayment Event" means any event or condition which gives the --------------- holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany or Amgen-Regeneron Partners.

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 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 lease, license or other agreement or instrument to which the Fund Company or any of its subsidiaries is a party or by which it or any of its properties subsidiaries 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"), ”) except for such 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 Auction Agent Agreement Indenture and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Securities and the consummation of the transactions contemplated in this Agreement herein, therein and in the Registration Statement General Disclosure Package and the Final Prospectuses (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 Prospectus General Disclosure Package and the Final Prospectuses under the caption "“Use of Proceeds"”) and compliance by the Fund Company with its obligations hereunder and under this 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 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 to, the Agreements and Instruments (except for such conflicts, breaches or defaults defaults, Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of or conflict with the provisions of the charter or the 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, or stock exchange, having jurisdiction over the Fund Company or any of its subsidiaries or any of their assets, properties or operations. As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany or any of its subsidiaries.

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 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 Instruments"), except for such 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 Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated in 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 Prospectus under the caption "Use of Proceeds") and compliance by the Fund with its obligations 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 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, 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. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting 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 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 the Fund Company or any of its subsidiaries is a party or by which it or its properties 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"), ”) except for such defaults that would not reasonably be expected to result in a Material Adverse EffectChange; and 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 Auction Agent Agreement and the Letter of Representations referred to Company in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and connection with the consummation of the transactions contemplated in this Agreement hereby or thereby or by the Disclosure Package 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 Notes as described in the Disclosure Package and the Prospectus under the caption "“Use of Proceeds"”) and compliance by the Fund Company with its obligations under this Agreement 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 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 to to, the Agreements and Instruments (Instruments, except for such conflicts, breaches or defaults or Repayment Events or liens, charges or encumbrances that that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect)Change, nor will such action result in any violation of (A) the provisions of the charter or the by-laws laws, or similar organizational documents, of the Fund, Company or any of its subsidiaries or (B) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any of its subsidiaries or any of their assets, properties or operations, except with respect to clause (B), any such violation as would not reasonably be expected to result in a Material Adverse Change. As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’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 or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund Company or any of its subsidiaries is a party or by which it or its properties 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"), ) except for such 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 Auction Agent Agreement Indenture and the Letter of Representations 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, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Offering Memorandum and the consummation of the transactions contemplated in this Agreement herein and in the Registration Statement Offering 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 Prospectus Offering Memorandum under the caption "Use of Proceeds") and compliance by the Fund Company with its obligations under this Agreement hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, (1) conflict with or constitute a breach of, or 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 properties, assets or assets operations of the Fund Company or any of its subsidiaries pursuant to to, or (2) constitute a Repayment Event (as defined below) 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)Instruments, nor (b) will such action result in any violation of the provisions of the charter or the by-laws of the FundCompany or any charters, bylaws and similar organizational documents of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any of its subsidiaries or any of their assets, properties or operations, except in the case of clause (a), subclause (1) above, for any conflict, breach, default, lien, charge or encumbrance as would not result in a Material Adverse Effect. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's 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 or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund Company or any of its subsidiaries is a party or by which it or its properties 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"), except for (a) with respect to the Company's subsidiaries other than the Subsidiaries, such violations that would not result in a Material Adverse Effect, and (b) such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in U.S. Purchase Agreement by the Registration Statement (as used hereinCompany or ▇▇▇▇▇▇▇, the "Advisory Agreement", consummation by the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation Company or its subsidiaries of the transactions contemplated in this Agreement and the U.S. Purchase Agreement, the Related Transactions and the transactions contemplated 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 Prospectus Prospectuses under the caption "Use of Proceeds") ), and compliance by the Fund Company and its subsidiaries with its their obligations under this Agreement Agreement, the U.S. Purchase Agreement, the Merger Agreement, the New Bank Credit Agreement, the Supplemental Indenture and the Dealer Manager Agreement, have been duly authorized by all necessary corporate action by the Company or its subsidiaries, as the case may be, except for any required approval of the Merger by the stockholders of the Company, which approval will be obtained prior to the Closing Date, and do not and 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 subsidiary pursuant to to, the Agreements and Instruments (except for (A) such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect)Effect or (B) such liens, charges, or encumbrances as are created in connection with the execution, delivery and performance of the New Bank Credit Facility or the Other Secured Agreements, nor will such action result in any violation of the provisions of the charter or the 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. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting 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 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 the Fund it 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 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 Sub-Administration Agreement, the Auction Agent Custodian Agreement and the Letter of Representations Stock Transfer Agency Agreement referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody “Management Agreement," ” the "Auction “Sub-Administration Agreement" ,” the “Custodian Agreement” and the "Letter of Representations“Stock Transfer Agency Agreement," ” respectively) and the consummation of the transactions contemplated in this Agreement 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 Prospectus under the caption "“Use of Proceeds"”) and compliance by the Fund with its obligations under this Agreement 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 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 articles of incorporation 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. As used herein, a "“Repayment Event" ” means any 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 their respective 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 the Fund Company or any of its subsidiaries is a party or by which it or its properties 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"), ”) 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 Auction Agent Agreement Indenture and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Securities and the consummation of the transactions contemplated in this Agreement herein and in the Registration Statement Offering 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 Prospectus Offering Memorandum under the caption "“Use of Proceeds"” and the issuance of the shares of Common Stock issuable upon conversion of the Notes) and compliance by the Fund Company with its obligations hereunder and under this Agreement 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 a 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 Company or any subsidiary pursuant to, or require any consent under or permit any third party to terminate, any of the Agreements and Instruments (Instruments, except for such conflictsbreaches, breaches defaults, Repayment Events, Liens, consents or defaults or liens, charges or encumbrances terminations 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, 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. As used herein, a "“Repayment Event" ” means any 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 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 the Fund Company or any of its subsidiaries is a party or by which it or its properties 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"), except for such defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the Letter of Representations referred to Company in connection with the transactions contemplated hereby or thereby or in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Prospectus and the consummation of the transactions contemplated in this Agreement 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 Prospectus under the caption "Use of Proceeds") and compliance by the Fund Company with its obligations under this Agreement 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 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 assets, properties or assets operations of the Fund Company or any of its subsidiaries pursuant to the to, any Agreements and Instruments (except as disclosed in the Prospectus and except for other such conflicts, breaches or defaults or liens, charges or encumbrances breaches 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, or violate any 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 where such violation would not result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the charter or by-laws of the Company or any of its subsidiaries. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting 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 certificate of incorporation (“Charter”), or by-laws or its bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any Subsidiary is in default in the performance or observance (nor has any event occurred which with notice, lapse of time, or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund Company 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 Company is subject (collectively, "“Agreements and Instruments"”), except for such defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance by the Company of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in consummation by the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation Company of the transactions contemplated in this Agreement 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 Registration Statement, the Disclosure Package and the Prospectus under the caption "“Use of Proceeds"”) and compliance by the Fund Company with its obligations under this Agreement 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 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 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)Instruments, nor will such action result in any violation of the provisions of the charter Charter or Bylaws of the Company or the by-laws organizational documents of the Fundany Subsidiary (including, or without limitation, partnership and limited liability company agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any Subsidiary or any of its their assets, properties or operations. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Fund.

Absence of Defaults and Conflicts. The Fund Neither the Company or ICG LP nor any of their subsidiaries is not in violation of its charter or charter, by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund Company, ICG LP or any of their subsidiaries is a party or by which it or its properties any of them may be bound, or to which any of the property or assets of the Fund Company, ICG LP or any subsidiary is subject (collectively, "“Agreements and Instruments"), ”) except for such 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 Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Reorganization Agreements and the consummation of the transactions contemplated in this Agreement herein and therein and in the Registration Statement (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 Prospectus under the caption "“Use of Proceeds"”) and compliance by the Fund Company and ICG LP with its their respective obligations hereunder and under this Agreement the Reorganization Agreements, to the extent it is a party to such agreements, have been duly authorized by all necessary corporate or other action and do not and 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, ICG LP or any of their subsidiaries pursuant to to, the Agreements and Instruments or the Reorganization Agreements (except for such conflicts, breaches breaches, defaults or defaults Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result in a Material Adverse Effect), nor will such action result in any violation of the provisions of (i) the charter or the by-laws of the Fund, Company or any subsidiary or (ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any subsidiary or any of its their assets, properties or operations, except in the case of clause (ii) for such violations that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Fund.“Repayment

Absence of Defaults and Conflicts. The Fund Neither the Company or ICG LP nor any of their subsidiaries is not in violation of its charter or charter, by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund Company, ICG LP or any of their subsidiaries is a party or by which it or its properties any of them may be bound, or to which any of the property or assets of the Fund Company, ICG LP or any subsidiary is subject (collectively, "“Agreements and Instruments"), ”) except for such 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 Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Reorganization Agreements and the consummation of the transactions contemplated in this Agreement herein and therein and in the Registration Statement (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 Prospectus under the caption "“Use of Proceeds"”) and compliance by the Fund Company and ICG LP with its their respective obligations hereunder and under this Agreement the Reorganization Agreements, to the extent it is a party to such agreements, have been duly authorized by all necessary corporate or other action and do not and 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, ICG LP or any of their subsidiaries pursuant to to, the Agreements and Instruments or the Reorganization Agreements (except for such conflicts, breaches breaches, defaults or defaults Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result in a Material Adverse Effect), nor will such action result in any violation of the provisions of (i) the charter or the by-laws of the Fund, Company or any subsidiary or (ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any subsidiary or any of its their assets, properties or operations, except in the case of clause (ii) for such violations that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’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 Depositor is not in violation of its charter or by-laws limited liability company agreement 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 Agreement and Instrument with respect to which 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 Instruments"), except for such defaults that would not result in a Material Adverse Effectit; and the execution, delivery and performance by the Depositor of the Depositor Agreements, this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used hereinSecurities, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated in this Agreement and herein or therein, in the Registration Statement Preliminary Prospectus or in the Prospectus (including the issuance and sale of the Shares Notes to the Underwriters pursuant to the terms of this Agreement and the use of the proceeds from the sale of the Shares therefrom as described in the Prospectus under the caption "heading “Use of Proceeds"” in the Prospectus) and compliance by the Fund it with its obligations under this Agreement hereunder and thereunder have been duly and validly 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 mortgage, pledge, charge, encumbrance, adverse claim or encumbrance other security interest (collectively, “Liens”) upon any of its property or assets of the Fund pursuant to the Depositor Agreements or Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect)Liens permitted by the Basic Documents, nor will such action result in any violation of the provisions of the charter or the by-laws of the Fund, its limited liability company agreement 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 Depositor or any of its assets, properties or operations. As used herein, a "“Repayment Event" means ” means, with respect to any Bank Entity, any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Fundsuch Bank Entity and “Agreements and Instruments” means, with respect to any Bank Entity, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which such Bank Entity is a party or by which it may be bound, or to which any of its properties, operations or assets is subject.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its subsidiaries 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 the Fund Company or any of its subsidiaries is a party or by which it or its properties 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"), ) except for such defaults that would not result in or have a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Registration Rights Agreement, the Custody Agreement, the Auction Agent Agreement Indenture and the Letter of Representations 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, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Offering Memorandum and the consummation of the transactions contemplated in this Agreement herein and in the Registration Statement Offering 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 Prospectus Offering Memorandum under the caption "Use of Proceeds") and compliance by the Fund Company with its obligations under this Agreement 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 a 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 to, any of 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 or have 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, 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 assetssubsidiaries or any of their assets or properties, properties except for such violations that would not result in or operationshave 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.gives

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its subsidiaries is not in violation of its charter constituting or by-laws operative document or agreement or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund Company or any of its subsidiaries is a party party, or by which it or its properties 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"), ) except for such defaults that would not result in a Material Adverse Effect; the issue and sale of the Shares, the execution, delivery and performance of this Agreement, [the Investment Advisory International Underwriting Agreement], the Custody AgreementShares 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, the Auction Agent Agreement and the Letter of Representations referred to thereby or in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Prospectus and the consummation of the transactions contemplated in this Agreement herein, therein and in the Registration Statement Prospectus (including the issuance and sale of the Shares by the Company hereunder [and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption "Use of Proceeds") and International Underwriting Agreement]), the compliance by the Fund Company with its obligations hereunder [and under this Agreement the International Underwriting 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 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 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 constituting or the by-laws operative document or agreement 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 or operations. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (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 indebtedness by the Fund.their assets or

Absence of Defaults and Conflicts. The Fund Company is not in violation --------------------------------- of its charter or by-laws bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the 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 Company is subject (collectively, "Agreements and Instruments"), except for such defaults that would not result in a Material Adverse Effect; and the Effect (as defined below). The (A) execution, delivery and performance of this Underwriting Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Indenture and each applicable Terms Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the Letter of Representations referred to Company in connection with the transactions contemplated hereby or thereby or in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectivelyProspectus, and (B) and the consummation of the transactions contemplated in this Agreement and in the Registration Statement therein (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption "Use of Proceeds"Underwritten Securities) and compliance by the Fund Company with its obligations under this Agreement 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 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 assets, properties or assets operations of the Fund Company 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 the by-laws bylaws of the Fund, Company or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, court (domestic or foreign), having jurisdiction over the Fund Company or any of its assets, properties or operations, except for such conflicts, breaches or defaults that would not result in a Material Adverse Effect. As used herein, a "Repayment Event" means any event or condition which that gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany.

Absence of Defaults and Conflicts. The Fund Trust is not in violation of its charter declaration of trust 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 the Fund it 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 Trust 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 Management Agreement, the Sub-Advisory Agreement, the Custody Agreement, the Auction Agent Custodian Agreement and the Letter of Representations Transfer Agent and Service Agreement referred to in the Registration Statement (as used herein, the "Management Agreement," the "Sub-Advisory Agreement", the "Custody Agreement," the "Auction Custodian Agreement" and the "Letter of RepresentationsTransfer Agency Agreement," respectively) and the consummation of the transactions contemplated in this Agreement 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 Prospectus under the caption "Use of Proceeds") and compliance by the Fund Trust with its obligations under this Agreement 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 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 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 declaration of trust or the by-laws of the Fund, Trust 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. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder▇▇▇▇▇▇'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 Depositor is not in violation of its charter or by-laws limited liability company agreement 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 Agreement and Instrument with respect to which 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 Instruments"), except for such defaults that would not result in a Material Adverse Effectit; and the execution, delivery and performance by the Depositor of the Depositor Agreements, this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used hereinSecurities, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated in this Agreement and herein or therein, in the Registration Statement Preliminary Prospectus or in the Prospectus (including the issuance and sale of the Shares Notes to the Underwriter pursuant to the terms of this Agreement and the use of the proceeds from the sale of the Shares therefrom as described in the Prospectus under the caption "heading “Use of Proceeds"” in the Prospectus) and compliance by the Fund it with its obligations under this Agreement hereunder and thereunder have been duly and validly 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 mortgage, pledge, charge, encumbrance, adverse claim or encumbrance other security interest (collectively, “Liens”) upon any of its property or assets of the Fund pursuant to the Depositor Agreements or Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect)Liens permitted by the Basic Documents, nor will such action result in any violation of the provisions of the charter or the by-laws of the Fund, its limited liability company agreement 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 Depositor or any of its assets, properties or operations. As used herein, a "“Repayment Event" means ” means, with respect to any Bank Entity, any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Fundsuch Bank Entity and “Agreements and Instruments” means, with respect to any Bank Entity, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which such Bank Entity is a party or by which it may be bound, or to which any of its properties, operations or assets is subject.

Absence of Defaults and Conflicts. The Fund is not Neither the Trust, Company, the Operating Partnership nor any of their Subsidiaries is, or with the giving of notice or lapse of time or both would be, in violation of its charter or in default under, the Declaration, the Articles of Incorporation or by-laws of the Company, the certificates of limited partnership of the Operating Partnership and the Property Partnership, or in default in the performance OP Partnership Agreement, or observance of the Property Partnership Agreement, or any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan agreement or credit agreementother agreement or instrument to which any of the REIT Entities is a party or by which any of them or any of their respective properties is bound, noteexcept for violations and defaults which individually and in the aggregate are not material to the REIT Entities taken as a whole; the issue and sale of the Securities, lease the Common Securities and the Series A Preferred L.P. Units and the performance by each of the Trust and the Operating Partnership of all its respective obligations under the Securities, the Common Securities and the Series A Preferred L.P. Units and the performance by each of the Trust, the Operating Partnership and the Company of all their respective obligations under this Agreement and the consummation of the transactions herein contemplated (A) do not and will not contravene (1) any provision of applicable law or statute, the Declaration, the Articles of Incorporation or by-laws of the Company, the certificates of limited partnership of the Operating Partnership and the Property Partnership, or the OP Partnership Agreement or the Property Partnership Agreement, or (2) any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which any of the Company or its Subsidiaries is a party or by which any of them or their respective properties is bound that is material to the Company and its Subsidiaries, taken as a whole, or (3) any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Fund Trust is a party or by which it or its properties may be boundparty, or to which (4) any order, rule or regulation of any court or governmental agency or body having jurisdiction over (a) the Company or any of its Subsidiaries or (b) the property Trust, except, for a contravention which would not have a material adverse effect on the condition, financial or assets otherwise, or the earnings or business affairs of, (x) with respect to clause (A)(2) and (A)(4)(a), the Company and its Subsidiaries, taken as a whole and (y) with respect to clause (A)(3) and (A)(4)(b), the Trust, and (B) and no consent, approval, authorization, order, license, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Fund is subject (collectivelySecurities, "Agreements and Instruments"), except for such defaults that would not result in a Material Adverse Effect; the Common Securities and the execution, delivery and performance of this Agreement, Series A Preferred L.P. Units by the Investment Advisory Agreement, Trust or the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and Operating Partnership or the consummation of the transactions contemplated in by this Agreement by the Trust, the Operating Partnership and the Company, except such consents, approvals, authorizations, orders, licenses, registrations or qualifications as have been obtained under the 1933 Act and as may be required under state securities or Blue Sky Laws in connection with the Registration Statement (including the issuance purchase and sale distribution of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption "Use of Proceeds") and compliance Securities by the Fund with its obligations 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 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, 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. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundUnderwriters.

Absence of Defaults and Conflicts. The Fund is not Upon completion of the Formation Transactions, none of the Company, the Operating Partnership or any of its Subsidiaries will be in violation of its charter or declaration of trust, charter, by-laws laws, partnership agreement, certificate of limited partnership or other governing document, as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund Company, the Operating Partnership or any of its Subsidiaries is a party or by which it or its properties any of them may be bound, or to which any of the Initial Properties or any other property or assets of the Fund Company, the Operating Partnership or any Subsidiary is subject (collectively, the "Agreements and Instruments"), ) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) U.S. Purchase Agreement and the consummation of the transactions contemplated in this Agreement, the U.S. Purchase Agreement and in the Registration Statement (including the issuance and sale of the Shares Securities, the consummation of the Formation Transactions, and the use of the proceeds from the sale of the Shares Securities as described in the Prospectus Prospectuses under the caption "Use of Proceeds") and compliance by each of the Fund Company and the Operating Partnership with its obligations under this Agreement and the U.S. Purchase Agreement have been duly authorized by all necessary corporate action or partnership action, as the case may be, and do not and 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 of the Initial Properties or any other property or assets of the Fund Company, the Operating Partnership or any Subsidiary 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 declaration of trust, charter, by-laws laws, partnership agreement, certificate of limited partnership or other governing document, as the case may be, of the FundCompany, the Operating Partnership 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 Operating Partnership or any subsidiary or any of its their assets, properties or operations. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany, the Operating Partnership 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 or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund Company or any of its subsidiaries is a party or by which it or its properties 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"), ) except for such 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 Auction Agent Registration Rights Agreement and the Letter of Representations 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, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Offering Memorandum and the consummation of the transactions contemplated in this Agreement herein and in the Registration Statement Offering 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 Prospectus Offering Memorandum under the caption "Use of Proceeds") and compliance by the Fund Company with its obligations under this Agreement 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, default 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 pursuant to 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 the 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 operationsany of their assets or properties. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or debenture, other evidence of indebtedness or preferred stock (or any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness or preferred stock by the FundCompany or any of its subsidiaries.

Absence of Defaults and Conflicts. The Fund None of the Simon Entities or, to the knowledge of the Operating Partnership, any joint ventures or partnerships in which Simon Entities have an equity interest (“Property Partnerships”) is not in violation of its charter or charter, by-laws 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 obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund each entity is a party or by which it or its properties any of them may be bound, or to which any of the its property or assets of the Fund is or any Property may be bound or subject (collectively, "“Agreements and Instruments"”), except for such violations (other than with respect to the charter, by-laws, partnership agreement, or other organizational document of the Company, the Operating Partnership or any significant subsidiary) or defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, the Investment Advisory AgreementNotes, the Custody Agreement, Indenture and any other agreement or instrument entered into or issued or to be entered into or issued by the Auction Agent Agreement and Company or the Letter of Representations referred to Operating Partnership in connection with the transactions contemplated hereby or thereby or in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Prospectus and the consummation of the transactions contemplated in this Agreement herein 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 Notes as described in the Prospectus under the caption "“Use of Proceeds"”) and compliance by the Fund Operating Partnership with its obligations under this Agreement hereunder and thereunder have been duly authorized by all necessary corporate action action, and do not and will shall not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance Lien upon any property assets, properties or assets operations of the Fund Operating Partnership or any other Simon Entity or any Property Partnership pursuant to the to, any Agreements and Instruments (Instruments, except for such conflicts, breaches breaches, defaults, Repayment Events or defaults or liensLiens, charges or encumbrances that that, singly or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect), nor will shall such action result in any violation of the provisions of the charter OP Partnership Agreement or certificate of limited partnership of the Operating Partnership or the by-laws organizational documents of the Fund, any other Simon Entity or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Operating Partnership, any other Simon Entity or any Property Partnership or any of its their assets, properties or operations, except for such violations (other than with respect to the charter, by-laws, partnership agreement, or other organizational document of the Company, the Operating Partnership or any significant subsidiary) that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’s behalf) the right to require the repurchase, redemption or repayment of all or a material portion of such indebtedness by any Simon Entity or, to the Fundknowledge of the Operating Partnership, any Property Partnership.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its --------------------------------- subsidiaries is not in violation of its (1) charter or by-laws 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 the Fund Company or any of its subsidiaries is a party or by which it or its properties 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"), ) except for such defaults under Agreements and Instruments 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 Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) U.S. Purchase Agreement and the consummation of the transactions contemplated in this Agreement, the U.S. Purchase Agreement 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 Prospectus Prospectuses under the caption "Use of Proceeds"" and the consummation of the Related Transactions) and compliance by the Fund Company with its obligations under this Agreement and the U.S. Purchase Agreement have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or 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 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, 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. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting 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 Trust is not in violation of its charter declaration of trust 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 the Fund it 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 Trust is subject (collectively, "“Agreements and Instruments"), ”) except for such violations or defaults that would not result in a Trust Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Management Agreement, the Sub-Advisory Agreement, the Custody Agreement, the Auction Agent Custodian Agreement and the Letter of Representations Transfer Agent and Service Agreement referred to in the Registration Statement (as used herein, the "“Management Agreement,” the “Sub-Advisory Agreement"”, the "Custody “Custodian Agreement” and the “Transfer Agency Agreement," the "Auction Agreement" and the "Letter of Representations," ” respectively) and the consummation of the transactions contemplated in this Agreement 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 Prospectus under the caption "“Use of Proceeds"”) and compliance by the Fund Trust with its obligations under this Agreement 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 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 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 Trust Material Adverse Effect), nor will such action result in any violation of the provisions of the charter declaration of trust or the by-laws of the Fund, Trust 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. As used herein, a "“Repayment Event" ” means any 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 Company is not in violation of its charter Certificate of Incorporation, as amended (the “Charter”), or by-laws 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 (A) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund Company or any of its Subsidiaries is a party or by which it or its properties 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"”), or (B) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except for such violations or defaults that would not not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, Agreement by the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Company and the consummation of the transactions contemplated in this Agreement herein and in the Registration Statement by the Company (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption "“Use of Proceeds"”) and compliance by the Fund Company with its obligations under this Agreement 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 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 to, the Agreements and Instruments (except for such conflicts, breaches or defaults breaches, 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 Bylaws of the Company or the by-laws charter, bylaws or other organizational document 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 or court, domestic or foreign, having jurisdiction over the Fund Company or any Subsidiary or any of its their assets, properties or operationsoperations (except for such violations that would not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect). As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’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 Simon Entities or any Property Partnership is not in violation of its charter or charter, by-laws 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 obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund each entity is a party or by which it or its properties any of them may be bound, or to which any of the its property or assets of the Fund is or any Portfolio property may be bound or subject (collectively, "Agreements and Instruments"), except for such violations (other than with respect to the charter, by-laws, partnership agreement, or other organizational document of such entities) or defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, the Investment Advisory AgreementNotes, the Custody AgreementIndenture, the Auction Agent Registration Rights Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the Letter of Representations referred to Operating Partnership in connection with the transactions contemplated hereby or thereby or in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Offering Memorandum and the consummation of the transactions contemplated in this Agreement herein and in the Registration Statement Offering Memorandum (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 Prospectus under the caption "Use of Proceeds") and compliance by the Fund Operating Partnership with its obligations under this Agreement hereunder and thereunder have been duly authorized by all necessary corporate action partnership action, and do not and will shall not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or 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 assets, properties or assets operations of the Fund Operating Partnership or any other Simon Entity or any Property Partnership pursuant to the to, any Agreements and Instruments (Instruments, except for such conflicts, breaches or defaults breaches, defaults, Repayment Events or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect), nor will shall such action result in any violation of the provisions of the charter partnership agreement and certificate of limited partnership of the Operating Partnership or the by-laws organizational documents of the Fund, any other Simon Entity or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Operating Partnership, any other Simon Entity or any Property Partnership or any of its their assets, properties or operations, except for such violations that would not have a Material Adverse Effect. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a material portion of such indebtedness by the FundOperating Partnership, any other Simon Entity 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 or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund Company or any of its subsidiaries is a party or by which it or its properties 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"), except for such 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 Auction Agent Agreement Indenture and the Letter of Representations 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, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Offering Memorandum and the consummation of the transactions contemplated in this Agreement herein and in the Registration Statement Offering 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 Prospectus Offering Memorandum under the caption "Use of Proceeds") and compliance by the Fund Company with its obligations under this Agreement 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 a 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 to, the Agreements and Instruments (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 the 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 operationsany of their assets or properties. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany or any of its subsidiaries.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its consolidated subsidiaries 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 the Fund Company or any of its consolidated subsidiaries is a party or by which it or its properties any of them may be bound, or to which any of the property properties or assets of the Fund Company or any of its consolidated subsidiaries is subject (collectively, "“Agreements and Instruments"”), except for such defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement Indenture and the Letter of Representations 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, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Prospectus and the consummation of the transactions contemplated in this Agreement herein and in the Registration Statement 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 Prospectus under the caption "“Use of Proceeds"”) and compliance by the Fund Company with its obligations under this Agreement 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 a 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 consolidated subsidiaries pursuant to 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 Effect), nor will such action result in any violation of the provisions of the charter or the by-laws of the Fund, Company or any of its consolidated subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any of its assets, properties consolidated subsidiaries or operationsany of their assets or properties. As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany or any of its consolidated subsidiaries.

Absence of Defaults and Conflicts. The Fund None of the Company, the Operating Partnership or any of their subsidiaries is not in violation of its charter declaration of trust, partnership agreement, charter, bylaws or by-laws similar organizational documents, 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 the Fund Company, the Operating Partnership or any of their subsidiaries is a party or by which it or its properties any of them may be bound, or to which any of the property or assets of the Fund Company, the Operating Partnership or any subsidiary is subject (collectively, "“Agreements and Instruments"), ”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Capped Call Confirmations and the consummation of the transactions contemplated in this Agreement herein and in the Registration Statement General Disclosure Package and the 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 as described in the Prospectus therein under the caption "“Use of Proceeds"”) and compliance by the Fund Company, the Operating Partnership and their subsidiaries with its their respective obligations under this Agreement 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 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, the Operating Partnership or any subsidiary pursuant to 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 declaration of trust, partnership agreement, charter, or bylaws, as the by-laws case may be, of the FundCompany, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company, the Operating Partnership or any subsidiary or any of its their assets, properties or operations. As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany, the Operating Partnership 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 or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund Company or any of its subsidiaries is a party or by which it or its properties 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"), ) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory International Purchase Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in Combination Agreements by the Registration Statement (as used hereinCompany, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated in this Agreement Agreement, the International Purchase Agreement, the 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 Prospectus Prospectuses under the caption "Use of Proceeds") ), and compliance by the Fund Company with its obligations under this Agreement Agreement, the International Purchase 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 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 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 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 the 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 operationsoperations except, in the case of clause (ii), to the extent that any such violation would not have a Material Adverse Effect. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's 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 Company, ▇▇▇▇▇▇▇ Oil and Gas or any of ▇▇▇▇▇▇▇ Oil and Gas's subsidiaries is not in violation of its respective 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 the Fund Company, ▇▇▇▇▇▇▇ Oil and Gas or any of ▇▇▇▇▇▇▇ Oil and Gas's subsidiaries is a party or by which it or its properties any of them may be bound, or to which any of the property or assets of the Fund Company, ▇▇▇▇▇▇▇ Oil and Gas or any of ▇▇▇▇▇▇▇ Oil and Gas's subsidiaries is subject (collectively, "Agreements and Instruments"), except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Transaction Documents and the consummation of the transactions contemplated herein, in this Agreement the Transaction Documents and in the Registration Statement (including the issuance of the Securities in the Share Exchange and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption "Use of Proceeds"Securities pursuant to this Agreement) and compliance by each of the Fund Company and ▇▇▇▇▇▇▇ Oil and Gas with its respective obligations under this Agreement hereunder and pursuant to the Transaction Documents 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 subsidiary pursuant to 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 the by-laws of the FundCompany, ▇▇▇▇▇▇▇ Oil and Gas or any subsidiary of ▇▇▇▇▇▇▇ Oil and Gas or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company, ▇▇▇▇▇▇▇ Oil and Gas or any subsidiary of ▇▇▇▇▇▇▇ Oil and Gas or any of its their assets, properties or operationsoperations (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 FundCompany, ▇▇▇▇▇▇▇ Oil and Gas or any subsidiary of ▇▇▇▇▇▇▇ Oil and Gas.

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

Absence of Defaults and Conflicts. The Fund is not in --------------------------------- violation of its charter declaration of trust 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 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 Instruments"), except for such 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 Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated in 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 Prospectus under the caption "Use of Proceeds") and compliance by the Fund with its obligations 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 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 the 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. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting 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 the Subsidiaries is not in violation of its charter or by-laws 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 the Fund Company or any of the Subsidiaries is a party or by which it or its properties 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"), except for such 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 Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) U.S. Purchase Agreement and the consummation of the transactions contemplated in this Agreement, the U.S. Purchase Agreement 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 Prospectus Prospectuses under the caption "Use of Proceeds") and compliance by the Fund Company and the Partnership with its their respective obligations under this Agreement and the U.S. Purchase Agreement have been duly authorized by all necessary corporate or partnership, as the case may be, action and do not and 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 Subsidiary 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 or partnership agreement, as the case may be, 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. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting 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 nor, to the actual knowledge of the Company, Triumph or any of its subsidiaries, 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 the Fund Company or any of its subsidiaries, or, to the actual knowledge of the Company, Triumph or any of its subsidiaries, is a party or by which it or its properties any of them may be bound, or to which any of the property or assets of the Fund Company or any subsidiary, or Triumph or any of its subsidiaries, is subject (collectively, "“Agreements and Instruments"), ”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated in this Agreement herein and in the Registration Statement (including the entering into of the senior secured credit facilities in the aggregate amount of $625 million (the “Senior Credit Facilities”), the consummation of the Merger and 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 under this Agreement 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 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, or, to the actual knowledge of the Company, Triumph or any of its subsidiaries, pursuant to 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 the by-laws of the FundCompany or any subsidiary, or, to the actual knowledge of the Company, Triumph 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 subsidiary or, to the actual knowledge of the Company, Triumph or any of its subsidiaries, or any of their assets, properties or operations. As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the 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 declaration of trust, charter, by-laws or similar governing instruments and, except as disclosed in Registration Statement, the General Disclosure Package, the Prospectus and the Prospectus Supplement, 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 the Fund Company or any of its subsidiaries is a party or by which it or its properties 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"), ”) except for such 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 Auction Agent Agreement and the Letter or of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) any Terms Agreement and the consummation of the transactions contemplated herein or in this any Terms 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 Prospectus under the caption "“Use of Proceeds"”) and compliance by the Fund Company with its obligations under this Agreement 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 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 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 declaration of trust, charter, by laws or the by-laws similar governing instrument 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. As used herein, a "“Repayment Event" ” means any 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 subsidiary is not in violation of its charter or articles of incorporation, by-laws or 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 other agreement or instrument to which the Fund Company or any subsidiary is a party or by which it or its properties 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"”), except for such violations or defaults that that, singly or in the aggregate, 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 Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated herein, in this Agreement the Transaction Documents and in the Registration Statement (including the issuance and sale of the Shares Securities to the Underwriters pursuant to this Agreement, the Concurrent Sale and the use of the proceeds from the sale of the Shares Securities to the Underwriters pursuant to this Agreement and from the Concurrent Sale as described in the General Disclosure Package and Prospectus under the caption "“Use of Proceeds"”) and compliance by the Fund Company with its obligations under this Agreement 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 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 to, the Agreements and Instruments (except for such conflicts, breaches breaches, defaults or defaults Repayment Events or liens, charges or encumbrances that would not not, 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 or the articles of incorporation, by-laws or similar organizational document 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. As used herein, a "“Repayment Event" ” means any 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 or by-laws or laws, (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contractcontract (including, without limitation, any license agreement, limited liability company agreement, partnership agreement or joint venture), indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund Company or any of its subsidiaries is a party or by which it or its properties 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"), except for such defaults that would not result ”) or (iii) in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated in 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 Prospectus under the caption "Use of Proceeds") and compliance by the Fund with its obligations 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 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, 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 their assets, properties or operations except, in the cases of clauses (ii) and (iii), for such defaults or violations that would not reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance of the Transaction Documents and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Disclosure Package and Final Offering Memorandum and the consummation of the transactions contemplated herein and in the Disclosure Package and Final Offering Memorandum (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Disclosure Package and Final Offering Memorandum under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate actions and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below), or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result in a Material Adverse Effect), nor will such action result in any violation (i) of the provisions of the charter or by-laws of the Company or its subsidiaries or (ii) of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any subsidiary or any of their assets, properties or operations, except, in the case of clause (ii), for any violation that would not reasonably be expected to result in a Material Adverse Effect. As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’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 currently in violation of its charter certificate 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 the Fund Company or any of its subsidiaries is a party or by which it or its properties 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"), ) except for such 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 Auction Agent Agreement Indenture and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Securities and the consummation of the transactions contemplated in this Agreement herein and in the Registration Statement Offering 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 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 hereunder and under this Agreement 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 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 to, the Agreements and Instruments (except for such conflictsInstruments, breaches or defaults or liens, charges or encumbrances that would and will not result in a Material Adverse Effect)the payment of any fee or an obligation to pay any fee to any other broker, dealer or other similar institution other than the Initial Purchasers, nor will such action result in any violation of the provisions of the charter or the 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. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting 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 subsidiary is not (a) in violation of its charter or by-laws or laws, (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 the Fund Company or its subsidiary is a party or by which it or its properties any of them may be bound, or to which any of the property or assets of the Fund Company or its subsidiary is subject (collectively, "Agreements and Instruments")) or (c) 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 its subsidiary or any of their assets, properties or operations, except for such defaults or violations in the case of clauses (b) and (c) that would could not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, the Investment Advisory Registration Rights Agreement, the Custody Agreement, the Auction Agent Agreement Indenture and the Letter of Representations 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, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Offering Memorandum and the consummation of the transactions contemplated in this Agreement herein and in the Registration Statement Offering 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 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 hereunder and under this Agreement 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 a 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 subsidiary pursuant to to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would that, singly and in the aggregate, could not reasonably be expected to result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or the by-laws of the Fund, Company or its subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or its subsidiary or any of its their assets, properties or operations. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany or its 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 or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund Company or any of its subsidiaries is a party or by which it or its properties 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"), ”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Indenture, the Registration Rights Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations 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, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Offering Memorandum and the consummation of the transactions contemplated in this Agreement hereby or thereby and in the Registration Statement Offering 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 Prospectus Offering Memorandum under the caption "“Use of Proceeds"”) and compliance by the Fund Company with its obligations under this Agreement 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 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 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 the by-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. As used herein, a "“Repayment Event" ” means any 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 None of the Company, the Operating Partnership or any of their subsidiaries is not in violation of its charter declaration of trust, partnership agreement, charter, bylaws or by-laws similar organizational documents, 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 the Fund Company, the Operating Partnership or any of their subsidiaries is a party or by which it or its properties any of them may be bound, or to which any of the property or assets of the Fund Company, the Operating Partnership or any subsidiary is subject (collectively, "“Agreements and Instruments"), ”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Capped Call Confirmations and the consummation of the transactions contemplated in this Agreement 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 Prospectus therein under the caption "“Use of Proceeds"”) and compliance by the Fund Company, the Operating Partnership and their subsidiaries with its their respective obligations under this Agreement 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 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, the Operating Partnership or any subsidiary pursuant to 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 declaration of trust, partnership agreement, charter, or bylaws, as the by-laws case may be, of the FundCompany, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company, the Operating Partnership or any subsidiary or any of its their assets, properties or operations. As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany, the Operating Partnership or any subsidiary. No event of default or default with notice and/or lapse of time that would constitute an event of default in respect of the December Securities has occurred and is continuing.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its subsidiaries, nor, to the knowledge of the Company, North Star, 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 lease, license or other agreement or instrument to which the Fund Company or any of its subsidiaries or North Star, as the case may be, is a party or by which it or any of its properties subsidiaries or North Star, as the case may be, may be bound, or to which any of the property or assets of the Fund Company or any of its subsidiaries or North Star, as the case may be, is subject (collectively, "Agreements and Instruments"), ) except for such violations or defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, the Investment Advisory Asset Purchase Agreements and the Gerdau S.A. Subscription Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions ▇▇▇ ▇▇▇▇▇▇ctions contemplated in this Agreement herein and therein and in the Registration Statement U.S. Prospectus and the Canadian 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 U.S. Prospectus and the Canadian Prospectus under the caption "Use of Proceeds") ), and compliance by the Fund Company with its obligations under this Agreement 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 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 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 actions result in any violation of or conflict with the provisions of the charter articles or the 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 instrumentality, court, domestic or foreign, or stock exchange having jurisdiction over the Fund Company or any subsidiary or any of its their assets, properties or operations. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the 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 or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund Company or any of its subsidiaries is a party or by which it or its properties 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"), ) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Pricing Agreement, the Custody Registration Rights Agreement, the Auction Agent Agreement Indenture and the Letter Securities (including the issuance of Representations referred to in the Registration Statement (as used herein, shares of Common Stock issuable upon conversion of the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectivelySecurities) and the consummation of the transactions contemplated in this Agreement and in the Registration Statement hereunder (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 Prospectus Offering Memorandum under the caption "Use of Proceeds") and compliance by the Fund Company with its obligations under this Agreement Agreement, the Pricing Agreement, 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 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 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, 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. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting 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) except for such defaults that would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund Company or any of its subsidiaries is a party or by which it or its properties 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"), except for such 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 Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated in this Agreement 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 use of the proceeds from the sale of the Shares Securities as described in the Statutory Prospectus and the Prospectus under the caption "“Use of Proceeds"”) and in the Concurrent Debt Offering and compliance by the Fund Company with its obligations under this Agreement 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 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 to, the Agreements and Instruments (except for such conflicts, breaches breaches, defaults or defaults Repayment Events or liens, charges or encumbrances that would not be reasonably likely to result in a Material Adverse Effect), nor will such action result in (C) any violation of the provisions of the charter or the by-laws of the FundCompany or any subsidiary or (D) except for such defaults that would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, a violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any subsidiary or any of its their assets, properties or operations. As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany or any subsidiary of the Company.

Absence of Defaults and Conflicts. The Fund Neither the Operating Partnership nor any Subsidiary is not in violation of its charter or charter, by-laws 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 obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund any such entity is a party or by which it or its properties any of them may be bound, or to which any of the its property or assets of the Fund is may be bound or subject (collectively, "Agreements and Instruments"), except for such violations or defaults that would not result in a Material Adverse Effect; Effect and except that no representation is made as to whether there has been any default under the Agreements and Instruments with regard to insurance coverage for acts of terrorism. The execution, delivery and performance of this Underwriting Agreement, the Investment Advisory applicable Terms Agreement, the Custody Agreement, Indenture and any other agreement or instrument entered into or issued or to be entered into or issued by the Auction Agent Agreement and Operating Partnership in connection with the Letter of Representations referred to transactions contemplated hereby or thereby or in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Prospectus and the consummation of the transactions contemplated in this Agreement 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 Prospectus under the caption "Use of Proceeds") and compliance by the Fund Operating Partnership with its obligations under this Agreement hereunder and thereunder have been duly authorized by all necessary corporate partnership action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or 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 assets, properties or assets operations of the Fund Operating Partnership or any Subsidiary pursuant to the to, any Agreements and Instruments (Instruments, except for such conflicts, breaches or defaults breaches, defaults, Repayment Events (as defined below) 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 charter, by-laws or the organizational documents of the Fund, Operating Partnership 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 Operating Partnership or any Subsidiary or any of its their assets, properties or operations, except for such violations that would not have a Material Adverse Effect. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a material portion of such indebtedness by the FundOperating Partnership or any Subsidiary.

Absence of Defaults and Conflicts. The Fund None of the Company, the Operating Partnership or any of their subsidiaries is not in violation of its charter declaration of trust, partnership agreement, charter, bylaws or by-laws similar organizational documents, 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 the Fund Company, the Operating Partnership or any of their subsidiaries is a party or by which it or its properties any of them may be bound, or to which any of the property or assets of the Fund Company, the Operating Partnership or any subsidiary is subject (collectively, "“Agreements and Instruments"), ”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Capped Call Confirmations and the consummation of the transactions contemplated in this Agreement 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 Prospectus therein under the caption "“Use of Proceeds"”) and compliance by the Fund Company, the Operating Partnership and their subsidiaries with its their respective obligations under this Agreement 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 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, the Operating Partnership or any subsidiary pursuant to 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 declaration of trust, partnership agreement, charter, or bylaws, as the by-laws case may be, of the FundCompany, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company, the Operating Partnership or any subsidiary or any of its their assets, properties or operations. As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundCompany, the Operating Partnership 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 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 the Fund Company or any of its subsidiaries is a party or by which it or its properties 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"), ) except for such 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 Auction Agent Agreement Indenture and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Securities and the consummation of the transactions contemplated in this Agreement herein and in the Registration Statement Offering 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 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 hereunder, and under this the Indenture, the Registration Rights 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 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 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 or other constituting or organizational instrument as in effect on the date hereof 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 any such violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of law which would not result in a Material Adverse Effect. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the 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 charter, by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund Company or any of its subsidiaries is a party or by which it or its properties 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"), ”) except for such 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 AgreementFirst Supplemental Indenture, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Securities and the consummation of the transactions contemplated in this Agreement 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 hereunder and under this Agreement the Indenture, the First Supplemental 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 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 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 the charter, by-laws 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. As used herein, a "“Repayment Event" ” means any 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 in violation of its charter or charter, by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund Company or any of its subsidiaries is a party or by which it or its properties 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"), except for such 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 Auction Agent Agreement Indenture and the Letter of Representations 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, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Prospectus and the consummation of the transactions contemplated in this Agreement herein and in the Registration Statement 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 Prospectus under the caption "Use of Proceeds") and compliance by the Fund Company with its obligations under this Agreement 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 a 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 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 the 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. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting 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 is not in violation --------------------------------- of its charter declaration of trust 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 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 Instruments"), except for such 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 Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated in 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 Prospectus under the caption "Use of Proceeds") and compliance by the Fund with its obligations 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 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 the 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. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting 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 (1) in violation of its charter or statute, as applicable, or by-laws (or other similar organizational documents), (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 the Fund Company or any of its subsidiaries is a party or by which it or its properties 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"), except as described in the Offering Memorandum and except for such defaults that would not result in a Material Adverse EffectEffect or (3) in violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their assets or properties, except as described in the Offering Memorandum; and the execution, delivery and performance of this Agreement, the Investment Advisory Warrant Agreement, the Custody Registration Rights Agreement, the Auction Agent Agreement Warrant Registration Rights Agreement, the Indenture and the Letter of Representations referred Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company or any Designated Subsidiary in connection with the transactions contemplated hereby or thereby or in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Offering Memorandum and the consummation of the transactions contemplated in this Agreement herein and in the Registration Statement Offering 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 Prospectus Offering Memorandum under the caption "Use of Proceeds") and compliance by the Fund Company with its obligations under this Agreement 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 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 to to, the Agreements and Instruments (except for such conflicts, breaches breaches, Repayment Events 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 the statute, as applicable, or by-laws (or other similar organizational 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 foreign, having jurisdiction over the Fund Company or any of its assetssubsidiaries or any of their assets or properties, properties or operationsassuming that the Initial Purchasers comply with all of their obligations under Section 6 hereof. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's 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 or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund Company or any of its subsidiaries is a party or by which it or its properties 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"), ) except for such 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 Auction Agent Agreement Indenture and the Letter of Representations 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, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Offering Memorandum and the consummation of the transactions contemplated in this Agreement herein and in the Registration Statement Offering 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 Prospectus Offering Memorandum under the caption "Use of Proceeds") and compliance by the Fund Company with its obligations under this Agreement 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 a 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 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 the by-laws of the Fund, Company or any of its subsidiaries or result in any material violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of which the Company has knowledge of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any of its subsidiaries or any of their assets, properties or operations. As used herein, a "Repayment Event" means any event or condition which 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.

Absence of Defaults and Conflicts. The Fund Neither the Issuer nor the Company nor any of their respective subsidiaries 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 the Fund Issuer or the Company or any of their respective subsidiaries is a party or by which it or its properties any of them may be bound, or to which any of the property or assets of the Fund Issuer or the Company or any of their respective subsidiaries is subject (collectively, "“Agreements and Instruments"), ”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance by each of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement Issuer and the Letter Company of Representations referred to in the Registration Statement (as used hereinTransaction Documents, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the Transactions and the other transactions contemplated in this Agreement herein and in the Registration Statement Disclosure Package and the 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 as described in the Prospectus Disclosure Package and the Final Offering Memorandum under the caption "“Use of Proceeds"”) and compliance by each of the Fund Issuer and the Company with its their respective obligations hereunder or under this Agreement the Transaction Documents 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 Issuer or the Company or any of their respective subsidiaries pursuant to 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 the by-laws of the Fund, Issuer or the Company or any of their respective subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Issuer or the Company or any of its their respective subsidiaries or any of their respective assets, properties or operations. As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the FundIssuer or the Company or any of their respective subsidiaries.

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its Subsidiaries, and to the Company’s knowledge, none of the Company’s other subsidiaries is not in violation of its charter or charter, by-laws laws, operating agreement or any organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund Company or its subsidiaries, is a party or by which it or its properties any of them may be bound, or to which any of the property or assets of the Fund Company or its subsidiaries is subject (collectively, "“Agreements and Instruments"”), except for such defaults that would not reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance of this AgreementAgreement and, except as disclosed in the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement General Disclosure Package and the Letter of Representations referred to in the Registration Statement (as used hereinProspectus, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated in this Agreement 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 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 Company or any subsidiary, pursuant to to, the Agreements and Instruments (except for such conflicts, breaches breaches, defaults or defaults Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or the charter, by-laws laws, operating agreement or any similar organizational documents of the FundCompany 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 operationsoperations (other than foreign or state securities or blue sky laws). As used hereinin this Agreement, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’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 charter, partnership agreement, limited liability company agreement, by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund Company or any of its Subsidiaries is a party or by which it or its properties 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"”), except for such defaults that would not result in a Material Adverse EffectEffect or that are otherwise specifically disclosed in the Registration Statement, the Final Prospectus and the Disclosure Package; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated in this Agreement herein and in the Registration Statement Statement, the Disclosure Package and the Final 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 Prospectus therein under the caption "“Use of Proceeds"”) and compliance by the Fund Company with its obligations under this Agreement hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or 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 to, the Agreements and Instruments (except for such conflicts, breaches breaches, defaults or defaults Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse EffectEffect or that are otherwise specifically disclosed in the Registration Statement, the Final Prospectus and the Disclosure Package), nor ; (b) do not and will such action not result in any violation of the provisions of the charter or the charter, partnership agreement, limited liability company agreement, by-laws or other organizational documents of the Fund, Company or any Subsidiary; and (c) do not and will not result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any Subsidiary or any of its their assets, properties or operationsoperations (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 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 or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Fund Company or any of its subsidiaries is a party or by which it or its properties 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"), except for such 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 Auction Agent Agreement Indenture and the Letter of Representations 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, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Offering Memorandum and the consummation of the transactions contemplated in this Agreement herein and in the Registration Statement Offering 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 Prospectus Offering Memorandum under the caption "Use of Proceeds") and compliance by the Fund Company with its obligations under this Agreement 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 a 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 to, the Agreements and Instruments (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 the 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 operationsany of their assets or properties. As used herein, a "Repayment Event" means any event or condition condi- tion which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's 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 the Founding Companies or their respective subsidiaries 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 the Fund Company, any Founding Company or any of their respective subsidiaries is a party or by which it or its properties 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"), ) except for such defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement, the Investment Advisory U.S. Purchase Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) Acquisition Agreements and the consummation of the transactions contemplated in this Agreement, the U.S. Purchase Agreement 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 Prospectus Prospectuses under the caption "Use of Proceeds") and compliance by the Fund Company with its obligations under this Agreement, the U.S. Purchase Agreement and the Acquisition 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 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, any Founding Company or any subsidiary 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 FundCompany, any Founding Company or any subsidiary thereof or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company, any Founding Company or any subsidiary thereof or any of its their assets, properties or operations. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Fund.,

Absence of Defaults and Conflicts. The Fund Neither the Company nor any of its consolidated subsidiaries is not (A) in violation of its charter or by-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 the Fund Company or any of its consolidated subsidiaries is a party or by which it or its properties any of them may be bound, or to which any of the property or assets of the Fund Company or any of its consolidated subsidiaries is subject (collectively, "“Agreements and Instruments"”), except for any such defaults with respect to this clause (B) that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement Indenture and the Letter of Representations referred to in the Registration Statement (as used hereinSecurities, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated in this Agreement 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 hereunder and under this 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 a 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 consolidated subsidiaries pursuant to 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 (A) the charter or the by-laws of the Fund, Company or any of its consolidated subsidiaries or (B) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Fund Company or any of its consolidated subsidiaries or any of their assets, properties or operations, except for any such violations with respect to this clause (B) as would not, individually or in the aggregate, result in a Material Adverse Effect. As used herein, a "“Repayment Event" ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's ’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 consolidated subsidiaries.