Common use of Absence of Defaults and Conflicts Clause in Contracts

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

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

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

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

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

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

Absence of Defaults and Conflicts. The Company is not in violation of the Charter or its Amended amended and Restated Certificate of Incorporation restated bylaws as in effect on the date hereof (the “CharterBylaws”) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries 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 Company or any Subsidiary is a party or by which the Company or any Subsidiary it may be bound, or to which any of the property or assets of the Company or any Subsidiary is subject (collectively, “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance by the Company of this Agreement Agreement, the Warrant Agreement, the Escrow Agreement, the Warrant Subscription Agreements and the Trust Agreement, the issuance and sale of the Securities, the consummation of the transactions contemplated herein herein, therein, in the Registration Statement, in the Time of Sale Prospectus and in the Prospectus (including the issuance and sale of the Securities Private Placement Warrants and the use of the proceeds from the sale of the Securities therefrom as described in the Registration Statement, the General Disclosure Package Time of Sale Prospectus and the Prospectus under the caption “Use of Proceeds”) and the compliance by the Company with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with with, or constitute a breach of, or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary pursuant to, to the Agreements and Instruments (except for such conflictsInstruments, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the Charter or the Bylaws of the Company or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, rule or regulation, judgment, order, writ or decree applicable to the Company of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary or any of their its 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 Company or any SubsidiaryCompany.

Absence of Defaults and Conflicts. The Company Trust is not in violation of its Amended and Restated Certificate certificate of Incorporation (“Charter”) trust, if applicable, or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary Trust is a party or by which the Company or any Subsidiary it may be bound, bound or to which any of the property or assets of the Company or any Subsidiary Trust is subject (collectively, “the "Trust Agreements and Instruments”"), except for such violations or defaults that would not reasonably be expected to result in a Trust Material Adverse Effect; and (1) the execution, delivery and performance of this Distribution Agreement, the Indenture, the Notes, each Funding Agreement, the Administration Agreement, the License Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the Company Trust in connection with the transactions contemplated by the Prospectus, (2) the performance of this the Trust Agreement (all agreements and instruments referenced in clauses (1) and (2) above are referred to herein as the "Program Documents"), (3) the consummation of the transactions contemplated herein in the Prospectus (including the issuance and sale of the Securities Notes and the use of the proceeds from the sale of the Securities therefrom as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”Prospectus) and (4) the compliance by the Company Trust with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and under the Program Documents do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach ofbreach, violation or default which (A) gives the holder of any note, debenture or Repayment Event other evidence of indebtedness (as defined belowor any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Trust under, or (B) result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Company or any Subsidiary Trust pursuant to, the any Trust Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect)Instruments, nor will such action result in any violation of the provisions Trust's certificate of trust, if applicable, the Charter Trust Agreement and the Trust is not in default in the performance or Bylaws observance of the Company or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Trust or any of their its assets, properties or operations. As ; provided that no representation or warranty is made with respect to the Funding Agreement(s) to the extent that the source of the funds used hereinby the Trust to purchase such Funding Agreement renders such funds, a “Repayment Event” means or any event property or condition which gives the holder of any noteinvestment acquired with such funds, debenture subject to governmental seizure or other evidence penalty under the USA Patriot Act of indebtedness (2001, as amended, or any person acting on other law, rule or regulation, relating to money laundering, terrorist financing or other illegal activities; provided further, that in the case of clause (A) of this paragraph (viii), this representation and warranty shall not extend to such holder’s behalf) the right to require the repurchase, redemption or repayment that would not result in a Trust Material Adverse Effect and in the case of all clause (B) of this paragraph (viii), this representation and warranty shall not extend to such lien, charges or a portion of such indebtedness by the Company encumbrances or any Subsidiaryviolations or defaults that would not result in a Trust Material Adverse Effect.

Absence of Defaults and Conflicts. The Company Trust is not in violation of its Amended agreement and Restated Certificate declaration of Incorporation (“Charter”) trust or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (includingby-laws, without limitationeach as amended from time to time, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is or in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary it is a party or by which the Company or any Subsidiary it may be bound, or to which any of the property or assets of the Company or any Subsidiary Trust is subject (collectively, “"Agreements and Instruments”), ") except for such violations or defaults that would not reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement, the Investment Advisory and Management Agreement, the Custody Agreement, the Stock Transfer Agency Agreement and the Administration, Bookkeeping and Pricing Services Agreement referred to in the Registration Statement (as used herein, the "Investment Advisory Agreement," the "Custody Agreement," the "Transfer Agency Agreement" and the "Administration Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company Trust with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Trust pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result in a Material Adverse Effect), nor will such action result in any violation (except for such violations that would not reasonably be expected to result in a Material Adverse Effect) of the provisions of the Charter agreement and declaration of trust or Bylaws by-laws of the Company Trust, each as amended from time to time, or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Trust or any of their its assets, properties or operations, other than State securities or "blue sky" laws applicable in connection with the purchase and distribution of the Securities by the Underwriters pursuant to this Agreement. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any SubsidiaryTrust.

Absence of Defaults and Conflicts. The Company is not in violation of the Charter or its Amended amended and Restated Certificate of Incorporation restated bylaws as in effect on the date hereof (the “CharterBylaws”) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries 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 Company or any Subsidiary is a party or by which the Company or any Subsidiary it may be bound, or to which any of the property or assets of the Company or any Subsidiary is subject (collectively, “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance by the Company of this Agreement Agreement, the Ancillary Agreements, the issuance and sale of the Securities, the consummation of the transactions contemplated herein herein, therein, in the Registration Statement, in the Time of Sale Prospectus and in the Prospectus (including the issuance and sale of the Securities Private Placement Warrants and the use of the proceeds from the sale of the Securities therefrom as described in the Registration Statement, the General Disclosure Package Time of Sale Prospectus and the Prospectus under the caption “Use of Proceeds”) and the compliance by the Company with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with with, or constitute a breach of, or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary pursuant to, to the Agreements and Instruments (except for such conflictsInstruments, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the Charter or the Bylaws of the Company or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, rule or regulation, judgment, order, writ or decree applicable to the Company of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary or any of their its assets, properties or operations, except in each such case (other than with respect to the Charter or the Bylaws), for any violations, breaches or defaults which would not reasonably be expected to result in 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 Company or any SubsidiaryCompany.

Absence of Defaults and Conflicts. The Company is not in violation of its Amended and Restated Certificate of Incorporation (“Charter”) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary Neither the Adviser nor the Administrator is in violation of its organizational documents (includingcertificate of formation or certificate of limited partnership, without limitationas applicable, partnership and or limited liability company agreements). Neither the Company nor any of its Subsidiaries is operating agreement or limited partnership operating agreement, as applicable, or in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company Adviser or any Subsidiary the Administrator is a party or by which the Company it or any Subsidiary of them may be bound, or to which any of the property or assets of the Company Adviser or any Subsidiary the Administrator is subject (collectively, the “Agreements and Instruments”), or in violation of any law, statute, rule, regulation, judgment, order or decree except for such violations or defaults that would not not, individually or in the aggregate, reasonably be expected to result in a an Adviser Material Adverse Effect or an Administrator Material Adverse Effect, as applicable; and the execution, delivery and performance by the Company of this Agreement, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company Adviser with its obligations hereunder and thereunder have been duly authorized under the Investment Advisory Agreement and by all necessary corporate action the Administrator with its obligations hereunder and under the Administration Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company Adviser or the Administrator pursuant to any Subsidiary pursuant toInstrument, the Agreements and Instruments (as applicable, except for such conflicts, breaches, violations or defaults or Repayment Events or liens, charges or encumbrances that would not not, individually or in the aggregate, reasonably be expected to result in a an Adviser Material Adverse Effect or an Administrator Material Adverse Effect), as applicable, nor will such action result in any violation of the provisions of the Charter limited partnership or Bylaws of the Company or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements)agreement, as applicable, of the Adviser or Administrator, respectively; 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 Company or any Subsidiary Adviser, the Administrator, or any of their respective assets, properties or operations. As used hereinoperations except for such violations that would not, a “Repayment Event” means any event individually or condition which gives in the holder of any noteaggregate, debenture reasonably be expected to result in an Adviser Material Adverse Effect or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchasean Administrator Material Adverse Effect, redemption or repayment of all or a portion of such indebtedness by the Company or any Subsidiaryas applicable.

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

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

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

Absence of Defaults and Conflicts. The Company Fund is not in violation of its Amended and Restated Certificate of Incorporation (“Charter”) charter or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (includingby-laws, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is or in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary it is a party or by which the Company or any Subsidiary it may be bound, or to which any of the property or assets of the Company or any Subsidiary Fund is subject (collectively, “Agreements and InstrumentsAGREEMENTS AND INSTRUMENTS”), ) except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement and any Purchase Agreements (collectively, the “OFFERING AGREEMENTS”) and the consummation of the transactions contemplated herein in the Offering Agreements and in the Registration Statement (including the issuance and sale of the Securities Shares to the Investors and the use of the proceeds from the sale of the Securities Shares as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company Fund with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Fund pursuant to, the Agreements and Instruments or the Investment Advisory Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Agreement and the Fund Accounting Servicing Agreement referred to in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “FUND AGREEMENTS”) (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the Charter charter or Bylaws by-laws of the Company Fund or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Fund or any of their its assets, properties or operationsoperations (except for such violations that would not result in a Material Adverse Effect). As used herein, a “Repayment EventREPAYMENT EVENT” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any SubsidiaryFund.

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

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

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

Absence of Defaults and Conflicts. The Company Fund is not (i) in violation of its Amended and Restated Certificate declaration of Incorporation trust or by-laws, each as amended from time to time, or (“Charter”ii) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary it is a party or by which the Company or any Subsidiary it may be bound, or to which any of the property or assets of the Company or any Subsidiary Fund is subject (collectivelytogether with the declaration of trust and by-laws, the “Agreements and Instruments”), except except, with respect to (ii) only, for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement, the Investment Management Agreement dated as of April [—], 2010, between the Fund and the Investment Adviser (the “Investment Management Agreement”), the Amended and Restated Master Custodian Agreement dated as of February 25, 2005, and effective as of [—], 2010, between the Fund and State Street Bank and Trust Company (the “Custodian Agreement”) and the Shareholder Transfer Agency and Service Agreement dated as of October 7, 2002, and effective as of [—], 2010, between the Fund and State Street Bank and Trust Company (the “Transfer Agency Agreement”) and any other material agreements and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company Fund with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the Charter declaration of trust or Bylaws by-laws of the Company Fund, each as amended from time to time, or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Fund or any of their its assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any SubsidiaryFund.

Absence of Defaults and Conflicts. The Company Such Trust is not (x) in violation of its Amended and Restated Certificate of Incorporation Trust Agreement or (“Charter”y) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary such Trust is a party or by which the Company or any Subsidiary it may be bound, bound or to which any of the property or assets of the Company or any Subsidiary such Trust is subject (collectively, as to each Trust, the “Trust Agreements and Instruments”), except for such defaults that would not result in a Trust Material Adverse Effect; and the . The (A) execution, delivery and performance of this Agreement, the relevant Indenture, the relevant Notes and any other agreement or instrument entered into or issued or to be entered into or issued by such Trust in connection with the transactions contemplated by the Company Time of Sale Prospectus, (B) performance of the relevant Trust Agreement (all agreements and instruments referenced in Section 3(b)(iv)(A) hereof and this Agreement and Section 3(b)(iv)(B) are referred to herein, as to each Trust, as the “Trust Program Documents”), (C) consummation of the transactions contemplated herein in the Time of Sale Prospectus (including the issuance and sale of the Securities relevant Notes and the use of the proceeds from the sale of the Securities therefrom as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use Time of Proceeds”Sale Prospectus) and (D) compliance by the Company such Trust with its obligations hereunder and thereunder under the Trust Program Documents have been or will timely be duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach ofbreach, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the Charter or Bylaws of the Company or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by such Trust under, or, except as contemplated by the Company Trust Program Documents, result in the creation or imposition of any lien, charge or encumbrance upon any assets, properties or operations of such Trust pursuant to, any Trust Agreements and Instruments, nor will such actions result in any violation of the relevant Trust Agreement or, except to the extent that any such violation would not result in a Trust Material Adverse Effect, any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over such Trust or any Subsidiaryof its assets, properties or operations.

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

Absence of Defaults and Conflicts. The Company is not (A) in violation of its Amended and Restated Certificate of Incorporation charter, by-laws or similar organizational documents, (“Charter”B) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary it may be bound, bound or to which any of the property properties or assets of the Company or any Subsidiary is subject (collectively, “Agreements and Instruments”), except for such defaults that would not not, singly or in the aggregate, result in a Material Adverse Effect; and , or (C) in violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency having jurisdiction over the THL Entities or any of their respective properties, assets or operations (each, a “Governmental Entity”), except for such violations that would not, singly or in the aggregate, result in a Material Adverse Effect. The execution, delivery and performance by of the Company of this Agreement Agreements and the consummation of the transactions contemplated herein therein and in the Registration Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the IPO Securities and the use of the proceeds from the sale of the IPO Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus therein under the caption “Use of Proceeds”,” and the issuance and sale of shares of Common Stock to BDC Holdings in connection with the Private Placement) and compliance by the Company with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and under the Company Agreements do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property properties or assets of the 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 not, singly or in the aggregate, result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the Charter charter, by-laws or Bylaws similar organizational documents of the Company or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary or any of their assets, properties or operationsGovernmental Entity. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any SubsidiaryCompany.

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

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

Absence of Defaults and Conflicts. The Company Fund is not (i) in violation of its Amended and Restated Certificate declaration of Incorporation trust or by-laws, each as amended from time to time, or (“Charter”ii) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary it is a party or by which the Company or any Subsidiary it may be bound, or to which any of the property or assets of the Company or any Subsidiary Fund is subject (collectivelytogether with the declaration of trust and by-laws, the “Agreements and Instruments”), except except, with respect to (ii) only, for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement, the Investment Advisory and Business Management Agreement dated as of [—], 2010, between the Fund and the Manager (the “Investment Management Agreement”), the [Sub-Advisory Agreement] dated as of [—], 2010, by and among the Fund, the Manager and the Commodity Subadvisor (the “Commodity Sub-Advisory Agreement”), the [Sub-Advisory Agreement] dated as of [—], 2010, by and among the Fund, the Manager and the Collateral Subadvisor (the “Collateral Sub-Advisory Agreement”), [include any other material agreements] and any other material agreements and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company Fund with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect)Instruments, nor will such action result in any violation of the provisions of the Charter declaration of trust or Bylaws by-laws of the Company Fund, each as amended from time to time, or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Fund or any of their its assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any SubsidiaryFund.

Absence of Defaults and Conflicts. The Company is not in violation of its Amended and Restated Certificate of Incorporation (“Charter”) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries subsidiaries is (i) in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary may be bound, or to which any of the property or assets of the Company or any Subsidiary is subject (collectively, “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated herein (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions its Organizational Documents, (ii) in violation of the Charter or Bylaws of the Company or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary of its subsidiaries or any of their respective assets, properties or operations. As used hereinoperations or (iii) in breach or default (or with or without the giving of notice or the passage of time or both, a “Repayment Event” means would be in breach or default) in the performance or observance of any event obligation, agreement, covenant or condition which gives contained in any Company Document, except in the holder case of clauses (ii) or (iii) for such violations, breaches or defaults that would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. The execution, delivery and performance by the Company and the Guarantors of the Transaction Documents and the consummation of the transactions contemplated therein and in the Preliminary Offering Memorandum, the General Disclosure Package and the Offering Memorandum (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Preliminary Offering Memorandum and the Offering Memorandum under the caption “Use of Proceeds”) and compliance by the Company and the Guarantors with their obligations under the Transaction Documents do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default, Termination Event or Repayment Event under, or result in the creation or imposition of any note, debenture Lien upon any property or other evidence assets of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any Subsidiaryof its subsidiaries pursuant to, any Company Documents except for any such conflict, breach, default, Termination Event, Repayment Event, or Lien that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or as would not materially adversely affect the ability of the Company and the Guarantors to consummate the transactions contemplated herein. Such actions will not result in any violation of (i) the provisions of the Organizational Documents of the Company or any of its subsidiaries or (ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of its or their respective assets, properties or operations except in the case of clause (ii) as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or as would not materially adversely affect the ability of the Company and the Guarantors to consummate the transactions contemplated herein.

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

Absence of Defaults and Conflicts. The Company Neither of the Transaction Entities, nor any of their subsidiaries is not (A) in violation of its Amended and Restated Certificate charter, by-laws, certificate of Incorporation limited partnership, agreement of limited partnership or similar organizational document, (“Charter”B) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which either of the Company Transaction Entities or any Subsidiary of their subsidiaries is a party or by which the Company it or any Subsidiary of them may be bound, or to which any of the property Properties or any other properties or assets of the Company Transaction Entities or any Subsidiary of their subsidiaries is subject (collectively, “Agreements and Instruments”), except for such defaults that would not not, singly or in the aggregate, result in a Material Adverse Effect; and , or (C) in violation of any law, statute, rule, regulation, judgment, order, writ or decree of any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency having jurisdiction over the Company or any of its subsidiaries or any of their respective properties, assets or operations (each, a “Governmental Entity”), except for such violations that would not, singly or in the aggregate, result in a Material Adverse Effect. The execution, delivery and performance by the Company of this Agreement and the other Operative Documents and the consummation of the transactions contemplated herein and in the General Disclosure Package and the Prospectus (including the Formation Transactions, the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus therein under the caption “Use of Proceeds”) and compliance by the Company Transaction Entities and the Predecessor Entities with its their obligations hereunder and thereunder have been duly authorized by all necessary corporate action or limited partnership action, as applicable, and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property properties or assets of the Company or any Subsidiary subsidiary or Predecessor Entity (or subsidiary thereof) pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not not, singly or in the aggregate, result in a Material Adverse Effect), nor will such action result in any violation of (i) the provisions of the Charter charter, by-laws, certificate of limited partnership, agreement of limited partnership or Bylaws similar organizational document of either of the Company Transaction Entities or the organizational documents any of their subsidiaries or any Subsidiary Predecessor Entity (including, without limitation, partnership and limited liability company operating agreements), or any applicable subsidiary thereof) or (ii) any law, statute, rule, regulation, judgment, order, writ or decree of any governmentGovernmental Entity, government instrumentality or courtexcept in the case of clause (ii) only, domestic or foreign, having jurisdiction over the Company or for any Subsidiary or any of their assets, properties or operationssuch violation that would not result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company Transaction Entities or any Subsidiaryof their subsidiaries or Predecessor Entity (or subsidiary thereof).

Absence of Defaults and Conflicts. The Company None of the Company, the Operating Partnership or any of the Subsidiaries is not (i) in violation of its Amended and Restated Certificate of Incorporation respective Organizational Documents or (“Charter”ii) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries 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 contractCompany Document, indentureexcept, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument solely as to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary may be bound, or to which any of the property or assets of the Company or any Subsidiary is subject clause (collectively, “Agreements and Instruments”ii), except (a) as disclosed in the Registration Statement and the Prospectus or (b) for such defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance by the Company of this Agreement Agreement, the Master Forward Confirmations and any “Supplemental Confirmation” under the Master Forward Confirmations and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities Shares and the use of the proceeds Net Proceeds from the sale of the Securities Shares as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Operating Partnership with its their respective obligations hereunder under this Agreement, the Master Forward Confirmations and thereunder any “Supplemental Confirmation” under the Master Forward Confirmations have been or will be duly authorized by all necessary action (corporate action or other) and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance Lien upon any property or assets of the Company Company, the Operating Partnership or any Subsidiary of the Subsidiaries pursuant to, any Company Documents, except as disclosed in the Agreements Registration Statement and Instruments (the Prospectus and except for such conflicts, breaches, defaults or defaults, Repayment Events or liens, charges or encumbrances Liens that would not result in a Material Adverse Effect)Effect or which would not reasonably be expected to materially and adversely affect the properties or assets thereof or the consummation of the transactions contemplated in this Agreement, nor will such action result in any violation of the provisions of (iii) the Charter or Bylaws Organizational Documents of the Company Company, the Operating Partnership or any of the organizational documents of any Subsidiary Subsidiaries or (including, without limitation, partnership and limited liability company operating agreements), iv) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company Company, the Operating Partnership or any Subsidiary of the Subsidiaries or any of their respective assets, properties or operations. As used herein, except, in the case of clause (ii), (a) as disclosed in the Registration Statement and the Prospectus and (b) for such violations that would not result in a Material Adverse Effect, or that would not reasonably be expected to materially and adversely affect the properties or assets thereof that, individually or in the aggregate, are material to the Company, the Operating Partnership and the Subsidiaries, taken as a whole, or that would not materially and adversely affect the consummation of the transactions contemplated in this Agreement, the Master Forward Confirmations and any “Repayment EventSupplemental Confirmation” means any event or condition which gives under the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any SubsidiaryMaster Forward Confirmations.

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

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

Absence of Defaults and Conflicts. The Company Fund is not (i) in violation of its Amended and Restated Certificate declaration of Incorporation trust or by-laws, each as amended from time to time, or (“Charter”ii) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary it is a party or by which the Company or any Subsidiary it may be bound, or to which any of the property or assets of the Company or any Subsidiary Fund is subject (collectivelytogether with the declaration of trust and by-laws, the “Agreements and Instruments”), except except, with respect to (ii) only, for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement, the Investment Management Agreement dated as of [—], 2009, between the Fund and the Investment Adviser (the “Investment Management Agreement”), the Amended and Restated Master Custodian Agreement dated as of February 25, 2005, and effective as of [—], 2009, between the Fund and State Street Bank and Trust Company (the “Custodian Agreement”) and the Shareholder Transfer Agency and Service Agreement dated as of October 7, 2002, and effective as of [—], 2009, between the Fund and State Street Bank and Trust Company (the “Transfer Agency Agreement”) and any other material agreements and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company Fund with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the Charter declaration of trust or Bylaws by-laws of the Company Fund, each as amended from time to time, or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Fund or any of their its assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any SubsidiaryFund.

Absence of Defaults and Conflicts. The Company Fund is not (i) in violation of its Amended and Restated Certificate declaration of Incorporation trust or by-laws, each as amended from time to time, or (“Charter”ii) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary it is a party or by which the Company or any Subsidiary it may be bound, or to which any of the property or assets of the Company or any Subsidiary Fund is subject (collectivelytogether with the declaration of trust and by-laws, the “Agreements and Instruments”), except except, with respect to (ii) only, for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement, the Investment Management Agreement dated as of [•], 2009 between the Fund and the Investment Adviser (the “Investment Management Agreement”), the Amended and Restated Master Custodian Agreement dated as of February 25, 2005 and effective as of [•], 2009, between the Fund and State Street Bank and Trust Company (the “Custodian Agreement”) and the Shareholder Transfer Agency and Service Agreement dated as of October 7, 2002 and effective as of [•], 2009, between the Fund and State Street Bank and Trust Company (the “Transfer Agency Agreement”) and any other material agreements and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company Fund with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the Charter declaration of trust or Bylaws by-laws of the Company Fund, each as amended from time to time, or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Fund or any of their its assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any SubsidiaryFund.

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

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

Absence of Defaults and Conflicts. The Company Trust is not in violation of its Amended and Restated Certificate of Incorporation (“Charter”) Charter or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (includingby-laws, without limitationeach as amended from time to time, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is or in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary it is a party or by which the Company or any Subsidiary it may be bound, or to which any of the property or assets of the Company or any Subsidiary Trust is subject (collectively, “"Agreements and Instruments”), ") except for such violations or defaults that would not reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement, the Investment Advisory and Management Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Administration, Bookkeeping and Pricing Services Agreement and the Auction Agency Agreement referred to in the Registration Statement (as used herein, the "Investment Advisory Agreement," the "Custody Agreement," the "Transfer Agency Agreement," the "Administration Agreement" and the "Auction Agency Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities AMPS and the use of the proceeds from the sale of the Securities AMPS as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company Trust with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Trust pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result in a Material Adverse Effect), nor will such action result in any violation (except for such violations that would not reasonably be expected to result in a Material Adverse Effect) of the provisions of the Charter agreement and declaration of trust or Bylaws by-laws of the Company Trust, each as amended from time to time, or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Trust or any of their its assets, properties or operations, other than State securities or "blue sky" laws applicable in connection with the purchase and distribution of the AMPS by the Underwriter 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 Company or any SubsidiaryTrust.

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

Absence of Defaults and Conflicts. The Company Fund is not (i) in violation of its Amended and Restated Certificate declaration of Incorporation trust or by-laws, each as amended from time to time, or (“Charter”ii) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary it is a party or by which the Company or any Subsidiary it may be bound, or to which any of the property or assets of the Company or any Subsidiary Fund is subject (collectivelytogether with the declaration of trust and by-laws, the “Agreements and Instruments”), except except, with respect to (ii) only, for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement, the Investment Management Agreement dated as of [—], 2009 between the Fund and the Investment Adviser (the “Investment Management Agreement”), the Amended and Restated Master Custodian Agreement dated as of February 25, 2005 and effective as of [—], 2009, between the Fund and State Street Bank and Trust Company (the “Custodian Agreement”) and the Shareholder Transfer Agency and Service Agreement dated as of October 7, 2002 and effective as of [—], 2009, between the Fund and State Street Bank and Trust Company (the “Transfer Agency Agreement”) and any other material agreements and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company Fund with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the Charter declaration of trust or Bylaws by-laws of the Company Fund, each as amended from time to time, or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Fund or any of their its assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any SubsidiaryFund.

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

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

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

Absence of Defaults and Conflicts. The Company is not in violation None of its Amended and Restated Certificate the Bank or any of Incorporation (“Charter”) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary the Subsidiaries is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is or in default in any material respect 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 material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease lease, license or other agreement or instrument to which any of the Company Bank or any Subsidiary the Subsidiaries is a party or by which the Company it or any Subsidiary of them may be bound, or to which any of the property or assets of the Company Bank or any Subsidiary the 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 the Transaction Documents by the Company of this Agreement Bank, and the consummation of the transactions contemplated herein and in the Offering Documents (including the issuance authorization, issuance, sale and sale delivery of the Securities Shares, and the use of the proceeds from the sale of the Securities Shares as described in the Registration Statement, the General Disclosure Package and the Prospectus Statement under the caption “Use of Proceeds”) ), and compliance by the Company Bank with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and thereunder, do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined belowherein) under, or result in the creation or imposition of any security interest, mortgage, pledge, lien, charge charge, encumbrance, claim or encumbrance equitable right upon any property or assets of the Company Bank or any Subsidiary of the Subsidiaries pursuant to, to the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect)Instruments, nor will such action result in any violation of or conflict with (A) the provisions of the Charter or Bylaws of the Company or the organizational documents of the Bank or resolutions of the directors or shareholders of the Bank, which are in effect at the date hereof, or any Subsidiary of the Subsidiaries, or (including, without limitation, partnership and limited liability company operating agreements), B) any existing applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, governmental authority having jurisdiction over the Company Bank or any Subsidiary of the Subsidiaries or any of their assets, properties or operationsoperations (including, without limitation, Canadian Securities Laws, applicable corporate law, the Bank Act (Canada) and the rules and regulations of the Toronto Stock Exchange (the “TSX”)). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company Bank or any Subsidiaryof the Subsidiaries.

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

Absence of Defaults and Conflicts. The Company is not in violation None of its Amended and Restated Certificate the Issuers or any of Incorporation (“Charter”) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary their subsidiaries is in violation of its charter, by-laws or other organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is or in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company any Issuer or any Subsidiary of its subsidiaries is a party or by which the Company or any Subsidiary of them may be bound, or to which any of the property or assets of the Company any Issuer or any Subsidiary of its subsidiaries is subject (collectively, “"Agreements and Instruments”), ") except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement, the Indenture, the Pledge Agreement, the Registration Rights Agreement and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by any Issuer in connection with the transactions contemplated hereby or thereby or in the Offering Memorandum and the consummation of the transactions contemplated herein and in the Offering Memorandum (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus Offering Memorandum under the caption “"Use of Proceeds”" and the issuance of the shares of Common Stock issuable upon conversion of the Securities) and compliance by the Company any Issuer with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or a Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company any Issuer or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (except as disclosed in the Offering Memorandum and except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the Charter charter, by-laws or Bylaws of the Company or the other organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), Issuer or any of the Designated Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company any Issuer or any Subsidiary of the Designated Subsidiaries or any of their assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company any Issuer or any Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. The Company is not Neither of the Arch Entities are in violation of its Amended and Restated Certificate their respective charter, memorandum of Incorporation (“Charter”) association, bye-laws or its Amended and Restated Bylaws (“Bylaws”)other constitutive documents. No Subsidiary None of the Guarantor’s subsidiaries is in violation of its organizational documents (includingdocuments, without limitationexcept for such violations that would not, partnership and limited liability company agreements)singly or in the aggregate, have a Material Adverse Effect. Neither None of the Company Arch Entities nor any of its Subsidiaries their respective subsidiaries is in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument instrument, including the Acquisition Agreements, to which the Company Arch Entities or any Subsidiary is of their respective subsidiaries are a party or by which the Company they or any Subsidiary of them may be bound, or to which any of the property or assets of the Company Arch Entities or any Subsidiary is of their respective subsidiaries are subject (collectively, “Agreements and Instruments”), ) except for such 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 by the Company of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities Notes, the issuance of the Guarantee and the use of the proceeds from the sale of the Securities Notes as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company Arch Entities with its their obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company Arch Entities or any Subsidiary of their subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not not, singly or in the aggregate, result in a Material Adverse Effect), nor will such action result in any violation of (i) the provisions of the Charter charter, memorandum, bye-laws or Bylaws other constitutive documents of the Company Arch Entities or the organizational documents any of any Subsidiary their subsidiaries or (including, without limitation, partnership and limited liability company operating agreements), ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company Arch Entities or any Subsidiary of their subsidiaries or any of their assets, properties or operationsoperations (except where such violations with respect to this Section 1(xv)(ii) would not, singly or in the aggregate, have a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company Arch Entities or any Subsidiaryof their subsidiaries.

Absence of Defaults and Conflicts. The Company Fund is not in violation of its Amended agreement and Restated Certificate declaration of Incorporation (“Charter”) trust or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (includingby-laws, without limitationeach as amended from time to time, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is or in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary it is a party or by which the Company or any Subsidiary it may be bound, or to which any of the property or assets of the Company or any Subsidiary Fund is subject (collectively, “"Agreements and Instruments”), ") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement, the Investment Management Agreement, the Administrative Services Agreement, the Custodian Agreement and the Transfer Agency and Service Agreement referred to in the Registration Statement (as used herein, the "Investment Management Agreement," the "Administrative Services Agreement," the "Custodian Agreement" and the "Transfer Agency and Service Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company Fund with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the Charter agreement and declaration of trust or Bylaws by-laws of the Company Fund, each as amended from time to time, or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Fund or any of their its assets, properties or operations, other than State securities or "blue sky" laws applicable in connection with the purchase and distribution of the Securities by the Underwriters pursuant to this Agreement and except for violations that would not result in a Material Adverse Effect. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any SubsidiaryFund.

Absence of Defaults and Conflicts. The Company Trust is not in violation of its Amended and Restated Certificate certificate of Incorporation (“Charter”) trust or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary Trust is a party or by which the Company or any Subsidiary it may be bound, bound or to which any of the property or assets of the Company or any Subsidiary Trust is subject (collectively, “Agreements and Instruments”the "TRUST 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 Indenture, the Notes, the Trust Agreement, each Series Trust Supplement, each Funding Agreement, the Administration Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the Company of this Agreement and Trust in connection with the transactions contemplated by the Prospectus, the consummation of the transactions contemplated herein in the Prospectus (including the issuance and sale of the Securities Notes and the use of the proceeds from the sale of the Securities therefrom as described in the Registration StatementProspectus) (collectively, the General Disclosure Package "PROGRAM DOCUMENTS") and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company Trust with its obligations hereunder and thereunder under the Program 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 the passage of time or both, conflict with or constitute a breach of, or default or Repayment Event event or condition which gives the holder of any note, debenture or other evidence of indebtedness (as defined belowor any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Trust under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of any Series Trust or the Company or any Subsidiary Trust pursuant to, the any Trust Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect)Instruments, nor will such action result in any violation of the provisions Trust's certificate of trust, the Charter Trust Agreement or Bylaws any Series Trust Supplement which may reasonably be expected to result in a Trust Material Adverse Effect and the Trust is not in default in the performance or observance of the Company or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Trust or any of their its assets, properties or operations. As used herein, except for such defaults which would not reasonably be expected to result in a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any SubsidiaryTrust Material Adverse Effect.

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

Absence of Defaults and Conflicts. The Company None of the CNX Parties is not (i) in violation of its Amended and Restated Certificate of Incorporation Organizational Documents or (“Charter”ii) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries 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 contemplated by the Transactions or contained in any contractCNX Document, indentureexcept, mortgage, deed in the case of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary may be bound, or to which any of the property or assets of the Company or any Subsidiary is subject clause (collectively, “Agreements and Instruments”ii), except for such defaults that would not not, individually or in the aggregate, result in a Material Adverse Effect; Effect or materially and adversely affect the consummation of the transactions contemplated in this Agreement (including the Transactions). The execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated herein (including the Transactions) and in the Registration Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities Units and the use of the proceeds from the sale of the Securities Units as described in the Registration Statement, the General Disclosure Package preliminary prospectus and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company CNX Parties party hereto with its their obligations hereunder and thereunder have been duly authorized by all necessary corporate action and under this Agreement (including the Transactions) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, of or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance Lien upon any property or assets of the Company or Partnership Entities pursuant to any Subsidiary pursuant toCNX Documents, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances Liens that would not not, individually or in the aggregate, result in a Material Adverse EffectEffect or materially and adversely affect the consummation of the transactions contemplated in this Agreement (including the Transactions), nor will such action result in any violation of (A) the provisions of the Charter or Bylaws Organizational Documents of the Company CNX Parties or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), B) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary CNX Parties or any of their respective assets, properties or operations. As used herein, except, in the case of clause (B), for such violations that would not, individually or in the aggregate, result in a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any SubsidiaryMaterial Adverse Effect.

Absence of Defaults and Conflicts. The Company is not in violation of its Amended and Restated Certificate of Incorporation (“Charter”) or its Amended and Restated Bylaws (“Bylaws”). No Neither the Operating Partnership nor any Subsidiary is in violation of its charter, by-laws, certificate of limited partnership or partnership agreement or other organizational documents (includingdocument, without limitationas the case may be, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is or in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary each entity is a party or by which the Company or any Subsidiary of them may be bound, or to which any of the its property or assets of the Company may be bound or any Subsidiary is subject (collectively, “"Agreements and Instruments”"), except for such violations or defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Underwriting Agreement, the applicable Terms Agreement, the Indenture and any other agreement or instrument entered into or issued or to be entered into or issued by the Company of this Agreement Operating Partnership in connection with the transactions contemplated hereby or thereby or in the Registration Statement and the Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Underwritten Securities and the use of the proceeds from the sale of the Underwritten Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company Operating Partnership with its obligations hereunder and thereunder have been duly authorized by all necessary corporate partnership action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Company Operating Partnership or any Subsidiary pursuant to, the any Agreements and Instruments (Instruments, except for such conflicts, breaches, defaults or defaults, Repayment Events 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 Bylaws of the Company charter, by-laws or the organizational documents of the Operating Partnership or any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company Operating Partnership or any Subsidiary or any of their assets, properties or operations, 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 's behalf) the right to require the repurchase, redemption or repayment of all or a material portion of such indebtedness by the Company Operating Partnership or any Subsidiary.

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

Absence of Defaults and Conflicts. The Company Fund is not in violation of its Amended and Restated Certificate of Incorporation (“Charter”) charter or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (includingby-laws, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is or in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary it is a party or by which the Company or any Subsidiary it may be bound, or to which any of the property or assets of the Company or any Subsidiary Fund is subject (collectively, “"Agreements and Instruments”), ") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Agreement and the Fund Accounting Servicing Agreement referred to in the Registration Statement (as used herein, individually the "Investment Advisory Agreement," the "Custody Agreement" and the "Stock Transfer Agency Agreement," the "Fund Administration Servicing Agreement," and the "Fund Accounting Servicing Agreement," respectively and collectively the "Offering Agreements") and the consummation of the transactions contemplated herein in the Offering Agreements and in the Registration Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company Fund with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the Charter charter or Bylaws by-laws of the Company Fund or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Fund or any of their 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 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any SubsidiaryFund.

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

Absence of Defaults and Conflicts. The Company Fund is not in violation of its Amended and Restated Certificate of Incorporation (“Charter”) charter or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (includingby-laws, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is or in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary it is a party or by which the Company or any Subsidiary it may be bound, or to which any of the property or assets of the Company or any Subsidiary Fund is subject (collectively, “Agreements and Instruments”), "AGREEMENTS AND INSTRUMENTS") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement and any Purchase Agreements (collectively, the "OFFERING AGREEMENTS") and the consummation of the transactions contemplated herein in the Offering Agreements and in the Registration Statement (including the issuance and sale of the Securities Shares to the Investors and the use of the proceeds from the sale of the Securities Shares as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company Fund with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Fund pursuant to, the Agreements and Instruments or the Investment Advisory Agreement, the Custody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Agreement and the Fund Accounting Servicing Agreement referred to in the Registration Statement (as used herein, individually the "Investment Advisory Agreement," the "Custody Agreement," the "Stock Transfer Agency Agreement," the "Fund Administration Servicing Agreement," and the "Fund Accounting Servicing Agreement," respectively and collectively the "FUND AGREEMENTS") (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the Charter charter or Bylaws by-laws of the Company Fund or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Fund or any of their its assets, properties or operationsoperations (except for such violations that would not result in a Material Adverse Effect). As used herein, a “Repayment Event” "REPAYMENT EVENT" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any SubsidiaryFund.

Absence of Defaults and Conflicts. The Company is not in violation of its Amended and Restated Certificate of Incorporation (“Charter”) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries subsidiaries is (a) in violation of its charter or by-laws or (b) in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary of its subsidiaries is a party or by which the Company it or any Subsidiary of them may be bound, or to which any of the property or assets of the Company or any Subsidiary of its subsidiaries is subject (collectively, “Agreements and Instruments”), ) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company of this Agreement in connection with the transactions contemplated hereby or thereby or in the Disclosure Package and the Final Offering Memorandum and the consummation of the transactions contemplated herein and in the Disclosure Package and the 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 Registration Statement, the General Disclosure Package and the Prospectus Final Offering Memorandum under the caption “Use of Proceeds”) and compliance by the Company and the Guarantors with its their obligations hereunder and thereunder 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 default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect), nor will such action result in any violation of (x) the provisions of the Charter charter or Bylaws by-laws of the Company or the organizational documents any of any Subsidiary its subsidiaries or (including, without limitation, partnership and limited liability company operating agreements), 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 Company or any Subsidiary of its subsidiaries or any of their assets, properties or operations, except in the case of clause (y) above, any such violations that, singly or in the aggregate, would not result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any Subsidiaryof its subsidiaries.

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

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

Absence of Defaults and Conflicts. The Company Fund is not (i) in violation of its Amended and Restated Certificate of Incorporation charter or by-laws, or (“Charter”ii) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary it is a party or by which the Company or any Subsidiary it may be bound, or to which any of the property or assets of the Company or any Subsidiary Fund is subject (collectively, “Agreements and Instruments”)) except, except with respect to this clause (ii) for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement, the Investment Advisory Agreement, the Custody Agreement between U.S. Bank National Association (“Custodian”) and the Fund (the “Custodian Agreement”), the Transfer Agency and Service Agreement between Computershare Trust Company, N.A. (the “Transfer Agent”) and the Fund (the “Transfer Agency Agreement”), and the Administration Agreement between U.S. Bancorp Fund Services, LLC (the “Administrator”) and the Fund (the “Administration Agreement”) (this Agreement, the Investment Advisory Agreement, the Custodian Agreement, the Transfer Agency Agreement and the Administration Agreement being referred to herein collectively as the “Fundamental Agreements”) and the consummation of the transactions contemplated herein in the Fundamental Agreements, the Plan and in the Registration Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described in the Registration Statement, the General Disclosure Package Prospectus and the Time of Sale Prospectus under the caption “Use of Proceeds”) and compliance by the Company Fund with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Fund pursuant to, the Fundamental Agreements and Instruments or the Plan (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the Charter charter or Bylaws by-laws of the Company Fund or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Fund or any of their 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 Company or any SubsidiaryFund.

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

Absence of Defaults and Conflicts. The Company Fund is not in violation of its Amended agreement and Restated Certificate declaration of Incorporation (“Charter”) trust or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (includingby-laws, without limitationeach as amended from time to time, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is or in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary it is a party or by which the Company or any Subsidiary it may be bound, or to which any of the property or assets of the Company or any Subsidiary Fund is subject (collectively, “"Agreements and Instruments”), ") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement, the Investment Advisory Agreement dated as of [ ], 2004 between the Fund and the Investment Adviser (the "Investment Advisory Agreement"), the Investment Management Agreement dated as of [ ], 2004 among the Fund, the Investment Adviser and the Investment Manager (the "Investment Management Agreement"), the Custodian Contract dated as of [ ], 2004 between the Fund and The Bank of New York (the "Custodian Agreement") and the Registrar, Transfer Agency and Service Agreement dated as of [ ], 2004 between the Fund and The Bank of New York (the "Stock Transfer Agency Agreement") and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company Fund with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action under the Delaware Statutory Trust Act (the "Delaware Act") and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation (except for such violations that will not result in a Material Adverse Effect) of the provisions of the Charter agreement and declaration of trust or Bylaws by-laws of the Company Fund, each as amended from time to time, or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Fund or any of their its assets, properties or operations, other than State securities or "blue sky" laws applicable in connection with the purchase and distribution of the Securities by the Underwriters pursuant to this Agreement. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any SubsidiaryFund.

Absence of Defaults and Conflicts. The Company is not in violation Neither the Guarantor or any of its Amended and Restated Certificate of Incorporation subsidiaries (“Charter”including the Company) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitationcharter or by-laws, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is agreement or other constitutive documents or in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company Guarantor or any Subsidiary of its subsidiaries (including the Company) is a party or by which the Company it or any Subsidiary of them may be bound, or to which any of the property assets, properties or assets operations of the Company Guarantor or any Subsidiary of its subsidiaries (including the Company) 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 Change. The execution, delivery and performance of this Underwriting Agreement, the applicable Terms Agreement and each applicable Indenture and any other agreement or instrument entered into or issued or to be entered into or issued by the Company of this Agreement or the Guarantor in connection with the transactions contemplated hereby or thereby or in the Registration Statement and the Prospectus, and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including including, without limitation, the issuance and sale of the Securities Underwritten Securities, the issuance of the Guarantee, and the use of the proceeds from the sale of the Securities Underwritten Securities, together with the Guarantee, as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantor, as applicable, with its their respective obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Company Guarantor or any Subsidiary of its subsidiaries (including the Company) pursuant to, the any Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result in a Material Adverse EffectChange), nor will such action result in any violation of the provisions of the Charter charter, by-laws, partnership agreement or Bylaws other constitutive document of the Company Guarantor or any of its subsidiaries (including the organizational documents Company) or, to the best of any Subsidiary (including, without limitation, partnership the Company’s and limited liability company operating agreements)the Guarantor’s knowledge, any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Guarantor or any of their its subsidiaries (including the Company) or over any of the assets, properties or operationsoperations of the Guarantor or any of its subsidiaries (including the Company), except for such violations under applicable law, statute, rule, regulation, judgment, order, writ or decree 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 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 Company Guarantor or any Subsidiaryof its subsidiaries (including the Company).

Absence of Defaults and Conflicts. The Company is not in violation of its Amended and Restated Certificate of Incorporation (“Charter”) charter or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is bylaws or in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary it may be bound, or to which any of the property or assets of the Company or any Subsidiary is subject (collectivelycollectively including without limitation the (i) Third Amended and Restated Credit Agreement, dated as of December 23, 2005, as amended by First Amendment, dated as of August 18, 2006, Second Amendment, dated as of July 10, 2007, Third Amendment, dated as of July 31, 2007 and Fourth Amendment, dated as of November 30, 2007, by and among the Company, Citibank, N.A., and the other financial institutions parties thereto, and (ii) the Indenture, dated as of July 31, 2007, between the Company and W▇▇▇▇ Fargo Bank, National Association (the “Credit Agreements”) and any “Credit Facilities” and “Loan Documents” as such terms are defined under each of the Credit Agreements, “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 its obligations under this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Securities Offered Shares and the use of the proceeds from the sale of the Securities Offered Shares as described in the Registration Statement, Prospectus in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”” section of the Prospectus) and compliance by the Company with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect)Instruments, nor will such action result in any violation of (A) the provisions of the Charter charter or Bylaws bylaws of the Company or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), B) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary or any of their its assets, properties or operations, which violations, in the case of clause (B), would, individually or in the aggregate, have a Material Adverse Change. 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 Company Company. Except for permits, consents, approvals and similar authorizations required under the securities or “Blue Sky” laws of certain jurisdictions, and except for such permits, consents, approvals and authorizations which have been obtained, no permit, consent, approval, authorization or order of any Subsidiarycourt, governmental agency or body or financial institution is required in connection with the consummation of the transactions contemplated by this Agreement.

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

Absence of Defaults and Conflicts. The Company is not in violation of its Amended and Restated Certificate of Incorporation (“Charter”) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter or bylaws or its partnership agreement, as the case may be, or in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary of its subsidiaries is a party or by which the Company or any Subsidiary of them may be bound, or to which any of the property respective properties or assets of the Company or any Subsidiary subsidiary is subject (collectively, “"Agreements and Instruments”"), except for such defaults that would not result in have a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement Agreement, the Indenture and the Securities and the consummation of the transactions contemplated herein and therein (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities to repay borrowings under the Amended and Restated Revolving Credit Agreement dated as of December 30, 1997 among the Company, the banks named therein and The Bank of New York, as agent and swing line bank and BNY Capital Markets, Inc., as arranger (the "Acquisition Credit Agreement"), as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “"Use of Proceeds”" but excluding any use of proceeds for other general corporate purposes for which specific corporate authorization may be required) and compliance by the Company with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (any Agreement or Instrument, except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that that, individually or in the aggregate, would not result in have a Material Adverse Effect), nor will such action result in any violation of the provisions of the Charter charter or Bylaws bylaws of the Company or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, or governmental or court judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary or any of their assets, properties or operationsdecree. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any Subsidiarysubsidiary of the Company or any of its subsidiaries.

Absence of Defaults and Conflicts. The Company Trust is not in violation of its Amended and Restated Certificate of Incorporation (“Charter”) the Declaration or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (includingby-laws, without limitationeach as amended from time to time, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is or in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary it is a party or by which the Company or any Subsidiary it may be bound, or to which any of the property or assets of the Company or any Subsidiary Trust is subject (collectively, “"Agreements and Instruments”), ") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement, the Investment Management Agreement, the Administration Agreement, the Custodian Agreement, the Transfer Agency and Service Agreement and the Auction Agency Agreement referred to in the Registration Statement (as used herein, the "Investment Management Agreement," the "Administration Agreement," the "Custodian Agreement," the "Transfer Agency and Service Agreement" and the "Auction Agency Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities AMPS and the use of the proceeds from the sale of the Securities AMPS as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company Trust with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Trust pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation (except for such violations that will not result in a Material Adverse Effect) of the provisions of the Charter Declaration or Bylaws the by-laws of the Company Trust, each as amended from time to time, or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Trust or any of their its assets, properties or operations, other than State securities or "blue sky" laws applicable in connection with the purchase and distribution of the AMPS 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 Company or any SubsidiaryTrust.

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

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

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

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

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

Absence of Defaults and Conflicts. The Company Trust is not (i) in violation of its Amended and Restated Certificate declaration of Incorporation trust or by-laws, each as amended from time to time, or (“Charter”ii) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary it is a party or by which the Company or any Subsidiary it may be bound, or to which any of the property or assets of the Company or any Subsidiary Trust is subject (collectively, “Agreements and Instruments”), ) except for such defaults that would not result in a Trust Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement, the Investment Management Agreement dated as of [·], 2011 between the Trust and BAL (the “Management Agreement”), the Sub-Investment Advisory Agreement dated as of [·], 2011 by and among the Trust, BAL and BCM (the “Sub-Advisory Agreement” and, together with the Management Agreement, the “Advisory Agreements”), the Custodian Agreement dated as of [·] between the Trust and [·] (the “Custodian Agreement”), and the Transfer Agent and Service Agreement dated as of [·] between the Trust and [·] (the “Transfer Agency Agreement”) and the consummation of the transactions contemplated herein and in the Statutory Prospectus, the Registration Statement and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company Trust with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action under the Delaware Statutory Trust Act and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Trust pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Trust Material Adverse Effect), nor will such action result in any violation of the provisions of the Charter declaration of trust or Bylaws by-laws of the Company Trust, each as amended from time to time, or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Trust or any of their its assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any SubsidiaryTrust.

Absence of Defaults and Conflicts. The Company Fund is not (i) in violation of its Amended and Restated Certificate of Incorporation charter or bylaws, or (“Charter”ii) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary it is a party or by which the Company or any Subsidiary it may be bound, or to which any of the property or assets of the Company or any Subsidiary Fund is subject (collectively, “Agreements and Instruments”)) except, except with respect to this clause (ii) for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement, the Investment Advisory Agreement, the Custody Agreement between U.S. Bank National Association (“Custodian”) and the Fund (the “Custodian Agreement”), the Stock Transfer Agency Agreement between Computershare Trust Company, N.A. (the “Transfer Agent”) and the Fund (the “Transfer Agency Agreement”), and the Administration Agreement between U.S. Bancorp Fund Services, LLC (the “Administrator”) and the Fund (the “Administration Agreement”) (this Agreement, the Investment Advisory Agreement, the Custodian Agreement, the Transfer Agency Agreement and the Administration Agreement being referred to herein collectively as the “Fundamental Agreements”) and the consummation of the transactions contemplated herein in the Fundamental Agreements, the Plan and in the Registration Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described in the Registration Statement, the General Disclosure Package Prospectus and the Time of Sale Prospectus under the caption “Use of Proceeds”) and compliance by the Company Fund with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Fund pursuant to, the Fundamental Agreements and Instruments or the Plan (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the Charter charter or Bylaws bylaws of the Company Fund or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Fund or any of their 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 Company or any SubsidiaryFund.

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

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

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

Absence of Defaults and Conflicts. The Company is not in violation of the Charter or its Amended amended and Restated Certificate of Incorporation restated bylaws as in effect on the date hereof (the “CharterBylaws”) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries 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 Company or any Subsidiary is a party or by which the Company or any Subsidiary it may be bound, or to which any of the property or assets of the Company or any Subsidiary is subject (collectively, “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance by the Company of this Agreement Agreement, the Warrant Agreement, the Lockup Agreements, the Subscription Agreements and the Trust Agreement, the issuance and sale of the Securities, the consummation of the transactions contemplated herein herein, therein, in the Registration Statement, in the Time of Sale Prospectus and in the Prospectus (including the issuance and sale of the Securities Private Placement Units and the use of the proceeds from the sale of the Securities therefrom as described in the Registration Statement, the General Disclosure Package Time of Sale Prospectus and the Prospectus under the caption “Use of Proceeds”) and the compliance by the Company with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with with, or constitute a breach of, or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary pursuant to, to the Agreements and Instruments (except for such conflictsInstruments, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the Charter or the Bylaws of the Company or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, rule or regulation, judgment, order, writ or decree applicable to the Company of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary or any of their its 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 Company or any SubsidiaryCompany.

Absence of Defaults and Conflicts. The Company is not in violation of its Amended and Restated Certificate of Incorporation (“Charter”) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter or by-laws or in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary of its subsidiaries is a party or by which the Company it or any Subsidiary of them may be bound, or to which any of the property or assets of the Company or any Subsidiary subsidiary is subject (collectively, “"Agreements and Instruments”), ") except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement and the U.S. Purchase Agreement and the consummation of the transactions contemplated herein in this Agreement, in the U.S. Purchase Agreement and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus Prospectuses under the caption “"Use of Proceeds”") and compliance by the Company with its obligations hereunder under this Agreement and thereunder 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, (A) conflict with or constitute a breach of, or default or except as disclosed in the Prospectuses under "Management's Discussion and Analysis of Financial Condition and Results of Operations -- Liquidity and Capital Resources" and "Underwriting - Other Relationships", a Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action (B) result in any violation of the provisions of the Charter charter or Bylaws by-laws of the Company or any subsidiary or (C) to the organizational documents best of the Company's knowledge, result in any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary subsidiary or any of their assets, properties or operationsoperations (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 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any Subsidiarysubsidiary.

Absence of Defaults and Conflicts. The Company None of the DB Entities is not (A) in violation of its Amended and Restated Certificate of Incorporation constituent documents, charter or by-laws or (“Charter”B) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Company or any Subsidiary DB Entities is a party or by which the Company it or any Subsidiary of them may be bound, or to which any of the property or assets of the Company or any Subsidiary DB Entity is subject (collectively, “Agreements and Instruments”), except for such violations or defaults that would not result in have a Material Adverse Effect; and material adverse effect on the ability of the relevant DB Entity to perform its obligations under the Transaction Documents (as defined below). The execution, delivery and performance by the Company DB Entities of this Agreement Agreement, the Trust Agreement, the LLC Agreement, the Guarantees, the Initial Obligation, [list other agreements] (collectively, “Transaction Documents”) and the Securities and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Trust, the Company and the Guarantor with its their respective obligations hereunder under the Transaction Documents and thereunder the Securities have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company DB Entities or any Subsidiary subsidiary of the Guarantor pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of (A) the provisions of the Charter constituent documents, charter or Bylaws by-laws of the Company DB Entities or any subsidiary of the organizational documents of any Subsidiary Guarantor or (including, without limitation, partnership and limited liability company operating agreements), B) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company DB Entities or any Subsidiary subsidiary of the Guarantor or any of their assets, properties or operationsoperations (except, with respect to (B), for such violations that would not result in Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company DB Entities or any Subsidiarysubsidiary of the Guarantor.

Absence of Defaults and Conflicts. The Company None of the Issuers is not (A) in violation of its Amended and Restated Certificate of Incorporation charter or by-laws or (“Charter”B) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company Guarantor or any Subsidiary of its subsidiaries is a party or by which the Company Guarantor or any Subsidiary of its subsidiaries may be bound, or to which any of the property or assets of the Company Guarantor or any Subsidiary of its subsidiaries is subject (collectively, “Agreements and Instruments”), "AGREEMENTS AND INSTRUMENTS") except in the case of clause (B) above for such defaults that would not reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement Agreement, the Registration Rights Agreement, the Indenture, the Guarantee and the Securities and the consummation of the transactions contemplated herein and in the Offering Memorandum (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus Offering Memorandum under the caption “"Use of Proceeds”" and the issuance of the shares of Common Stock issuable upon exchange of the Securities) and compliance by each of the Company and the Guarantor with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action under the Indenture, the Registration Rights Agreement, the Guarantee and the Securities do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or a Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company Guarantor or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that 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 (i) the provisions of the Charter charter or Bylaws by-laws or other constituting or organizational document of the Company Guarantor or the organizational documents any of any Subsidiary its subsidiaries or (including, without limitation, partnership and limited liability company operating agreements), ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, presently having jurisdiction over the Company Guarantor or any Subsidiary of its subsidiaries or any of their respective assets, properties or operationsoperations (except for such violations that, singly or in the aggregate, would not reasonably be expected to have a Material Adverse Effect). As used herein, a “Repayment Event” "REPAYMENT EVENT" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment prior to the stated maturity or date of mandatory redemption or repayment thereof of all or a portion of such indebtedness by the Company or any SubsidiaryGuarantor.

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

Absence of Defaults and Conflicts. The Company Trust is not in violation of its Amended and Restated Certificate declaration of Incorporation (“Charter”) trust or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (includingby-laws, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is or in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary it is a party or by which the Company or any Subsidiary it may be bound, or to which any of the property or assets of the Company or any Subsidiary Trust is subject (collectively, “Agreements and Instruments”), ) except for such violations or defaults that would not result in a Trust Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement, the Investment Management Agreement dated as of [•], 2007 between the Trust and BAL (the “Management Agreement”), the Sub-Investment Advisory Agreement dated as of [•], 2007 by and among the Trust, BAL and BFM (the “Sub-Advisory Agreement” and, together with the Management Agreement, the “Advisory Agreements”), the Custodian Agreement dated as of [•], 2007 between the Trust and The Bank of New York (the “Custodian Agreement”), and the Transfer Agent and Service Agreement dated as of [•], 2007 between the Trust and The Bank of New York (the “Transfer Agency Agreement”) [and other material agreements] and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company Trust with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action under the Delaware Statutory Trust Act and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Trust pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Trust Material Adverse Effect), nor will such action result in any violation of the provisions of the Charter declaration of trust or Bylaws by-laws of the Company Trust, each as amended from time to time, or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Trust or any of their its assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any SubsidiaryTrust.

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

Absence of Defaults and Conflicts. The Company is not in violation of its Amended and Restated Certificate of Incorporation (“Charter”) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter or by-laws or in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary of its subsidiaries is a party or by which the Company it or any Subsidiary of them may be bound, or to which any of the property or assets of the Company or any Subsidiary subsidiary is subject (collectively, “"Agreements and Instruments”), ") except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement (including the $200 million operating lease facility (the "Synthetic Lease Transaction") and the $50 million credit facility (the "Credit Facility") as described in the Prospectuses under the caption "Management's Discussion and Analysis of Financial Condition and Results of Operation B Liquidity and Capital Resources" and the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company and the Operating Subsidiary with its their respective obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company Company, the Operating Subsidiary or any Subsidiary other subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in (i) any violation of the provisions of the Charter charter or Bylaws by-laws of the Company or the organizational documents Operating Subsidiary, (ii) any violation of the provisions of the charter or by-laws of any subsidiary other than the Operating Subsidiary (including, without limitation, partnership and limited liability company operating agreements), except for such violations that would not result in a Material Adverse Effect) or (iii) any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary subsidiary or any of their assets, properties or 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 Company or any Subsidiary.which

Absence of Defaults and Conflicts. The Company Trust is not in violation of its Amended agreement and Restated Certificate declaration of Incorporation (“Charter”) trust or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (includingby-laws, without limitationeach as amended from time to time, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is or in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary it is a party or by which the Company or any Subsidiary it may be bound, or to which any of the property or assets of the Company or any Subsidiary Trust is subject (collectively, “"Agreements and Instruments”), ") except for such violations or defaults that would not reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement, the Investment Advisory Agreement, the Administration Agreement, the Custodian Agreement and the Transfer Agency and Service Agreement referred to in the Registration Statement (as used herein, the "Investment Advisory Agreement," the "Administration Agreement," the "Custodian Agreement" and the "Transfer Agency Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company Trust with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Trust pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result in a Material Adverse Effect), nor will such action result in any violation (except for such violations that would not reasonably be expected to result in a Material Adverse Effect) of the provisions of the Charter agreement and declaration of trust or Bylaws by-laws of the Company Trust, each as amended from time to time, or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Trust or any of their its assets, properties or operations, other than State securities or "blue sky" laws applicable in connection with the purchase and distribution of the Securities by the Underwriters pursuant to this Agreement. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any SubsidiaryTrust.

Absence of Defaults and Conflicts. The Company Trust is not in violation of its Amended and Restated Certificate certificate of Incorporation (“Charter”) trust, if applicable, or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary Trust is a party or by which the Company or any Subsidiary it may be bound, bound or to which any of the property or assets of the Company or any Subsidiary Trust is subject (collectively, “the "Trust Agreements and Instruments”"), except for such violations or defaults that would not reasonably be expected to result in a Trust Material Adverse Effect; and (A) the execution, delivery and performance of this Selling Agent Agreement, the Indenture, the Notes, each Funding Agreement, the Administration Agreement, the License Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the Company Trust in connection with the transactions contemplated by the Prospectus, (B) the performance of this the Trust Agreement (all agreements and instruments referenced in clauses (A) and (B) above are referred to herein as the "Program Documents"), (C) the consummation of the transactions contemplated herein in the Prospectus (including the issuance and sale of the Securities Notes and the use of the proceeds from the sale of the Securities therefrom as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”Prospectus) and (D) the compliance by the Company Trust with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and under the Program Documents do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or not constitute a breach ofbreach, violation or default which (1) gives the holder of any note, debenture or Repayment Event other evidence of indebtedness (as defined belowor any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Trust under, or (2) result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Company or any Subsidiary Trust pursuant to, the any Trust Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect)Instruments, nor will such action result in any violation of the provisions Trust's certificate of trust, if applicable, the Charter Trust Agreement and the Trust is not in default in the performance or Bylaws observance of the Company or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Trust or any of their its assets, properties or operations. As ; provided that no representation or warranty is made with respect to the Funding Agreement(s) to the extent that the source of the funds used hereinby the Trust to purchase such Funding Agreement renders such funds, a “Repayment Event” means or any event property or condition which gives the holder of any noteinvestment acquired with such funds, debenture subject to governmental seizure or other evidence penalty under the USA PATRIOT Act of indebtedness (2001, as amended, or any person acting on other law, rule or regulation, relating to money laundering, terrorist financing or other illegal activities; provided further that in the case of clause (1) of this paragraph (viii), this representation and warranty shall not extend to such holder’s behalf) the right to require the repurchase, redemption or repayment that would not result in a Trust Material Adverse Effect and in the case of all clause (2) of this paragraph (viii), this representation and warranty shall not extend to such lien, charges or a portion of such indebtedness by the Company encumbrances or any Subsidiaryviolations or defaults that would not result in a Trust Material Adverse Effect.

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

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

Absence of Defaults and Conflicts. The Company Fund is not in violation of its Amended agreement and Restated Certificate declaration of Incorporation (“Charter”) trust or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (includingby-laws, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is or in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary it is a party or by which the Company or any Subsidiary it may be bound, or to which any of the property or assets of the Company or any Subsidiary Fund is subject (collectively, “"Agreements and Instruments”), ") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement, the Management Agreement, the Sub-Advisory Agreement, the Administration Agreement, the Custodian Agreement and the Transfer and Dividend Disbursing Agent and Registrar Agreement referred to in the Registration Statement (as used herein, the "Management Agreement," the "Sub-Advisory Agreement," the "Administration Agreement," the "Custodian Agreement" and the "Transfer and Dividend Disbursing Agency and Registrar Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company Fund with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the Charter agreement and declaration of trust or Bylaws by-laws of the Company Fund or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Fund or any of their its assets, properties or operations, other than State securities or "blue sky" laws applicable in connection with the purchase and distribution of the Securities by the Underwriters pursuant to this Agreement. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any SubsidiaryFund.

Absence of Defaults and Conflicts. The Company is not in violation None of its Amended and Restated Certificate of Incorporation (“Charter”) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary the Partnership Entities is in violation of its organizational documents (includinglimited partnership agreement, without limitationarticles, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is charter or by laws or in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease lease, license or other agreement or instrument to which any of the Company or any Subsidiary Partnership Entities is a party or by which the Company it or any Subsidiary of them may be bound, or to which any of the Partnership Entities or the property or assets of any of the Company or any Subsidiary Partnership Entities is subject (collectively, “Agreements and Instruments”), except for such defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated herein therein and in the Disclosure Package, the U.S. Prospectus and the Supplemented Canadian Prospectus (including the issuance sale and sale delivery of the Securities Exchangeable Shares and the Additional Exchangeable Share, if any, and the authorization, issuance, sale and delivery of any Units upon the exchange, redemption or acquisition of any Exchangeable Shares or Additional Exchangeable Share, if any, and the use of the proceeds from the sale of the Securities Exchangeable Shares and the Additional Exchangeable Shares as described in the Registration StatementDisclosure Package, the General Disclosure Package U.S. Prospectus and the Supplemented Canadian Prospectus under the caption “Use of Proceeds”) and compliance by each of BIPC and the Company Partnership with its obligations hereunder and thereunder have has been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of any of the Company or any Subsidiary Partnership Entities pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of or conflict with the provisions of the Charter limited partnership agreement, charter or Bylaws by laws of any of the Company Partnership Entities, the resolutions of the general partner, unitholders, shareholders, directors or the organizational documents any committee of directors of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), of the Partnership Entities or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or instrumentality, court, domestic or foreign, or stock exchange having jurisdiction over any of the Company or any Subsidiary Partnership Entities or any of their assets, properties or 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 behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by any of the Company or any SubsidiaryPartnership Entities.

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

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

Absence of Defaults and Conflicts. The Company Fund is not in violation of the Statement or by-laws, each as amended or supplemented to date, and none of its Amended and Restated Certificate of Incorporation (“Charter”) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary subsidiaries is in violation of any of its organizational documents (including, without limitation, partnership and limited liability company agreements)documents. Neither None of the Company Fund nor any of its Subsidiaries subsidiaries is in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company Fund or any Subsidiary of its subsidiaries is a party or by which the Company or any Subsidiary it may be bound, or to which any of the property or assets of the Company Fund or any Subsidiary of its subsidiaries is subject (collectively, “Agreements and Instruments”), ) except for such violations or defaults (A) that do not involve Offering Agreements (as defined below) and (B) that would not not, individually or in the aggregate, result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement, the Investment Advisory Agreement dated as of September 1, 2017 between the Fund and the Adviser, the Master Custodian Agreement dated as of October 3, 2018 between the Fund, by amended appendix, and Bank of New York Mellon, the Master Sub-Administration Agreement dated as of July 19, 2018 between SEI Investments Global Funds Services, NexPoint Advisors, L.P. and the Adviser and the Transfer Agency and Registrar Services Agreement dated as of November 3, 2017 between the Fund and American Stock Transfer & Trust Company, LLC, referred to in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Sub-Administration Agreement,” the “Custody Agreement,” and the “Transfer Agency Agreement,” respectively and collectively the “Offering Agreements”) and the consummation of the transactions contemplated herein in the Offering Agreements and in the Registration Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described in the Registration Statement, the General Disclosure Package Preliminary Prospectus and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company Fund and each of its subsidiaries with its obligations hereunder and thereunder have been duly authorized by all necessary corporate trust action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company Fund or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not not, individually or in the aggregate, result in a Material Adverse Effect), nor will such action result in (i) any violation of the provisions of the Charter Statement or Bylaws by-laws of the Company Fund or the any organizational documents of any Subsidiary of its subsidiaries or (including, without limitation, partnership and limited liability company operating agreements), ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary or Fund, any of their its subsidiaries, assets, properties or operations, except with respect to (ii) only for such violations that would not, individually or in the aggregate, result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company Fund or any Subsidiaryof its subsidiaries.

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

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

Absence of Defaults and Conflicts. The Company Fund is not in violation of its Amended agreement and Restated Certificate declaration of Incorporation (“Charter”) trust or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (includingby-laws, without limitationeach as amended from time to time, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is or in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary it is a party or by which the Company or any Subsidiary it may be bound, or to which any of the property or assets of the Company or any Subsidiary Fund is subject (collectively, “"Agreements and Instruments”), ") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement, the Investment Management Agreement, the Investment Advisory Agreement, the Administrative Services Agreement, the Custodian Agreement, and the Auction Agency Agreement referred to in the Registration Statement (as used herein, the "Management Agreement," the "Advisory Agreement," the "Administrative Services Agreement," the "Custodian Agreement," and the "Auction Agency Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities AMPS and the use of the proceeds from the sale of the Securities AMPS as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company Fund with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation (except for such violations that will not result in a Material Adverse Effect) of the provisions of the Charter agreement and declaration of trust or Bylaws the by-laws of the Company Fund, each as amended from time to time, or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Fund or any of their its assets, properties or operations, other than State securities or "blue sky" laws applicable in connection with the purchase and distribution of the AMPS 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 Company or any SubsidiaryFund.

Absence of Defaults and Conflicts. The Company is not in violation of its Amended and Restated Certificate of Incorporation (“Charter”) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries subsidiaries is in violation of its charter or by-laws or in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary of its subsidiaries is a party or by which the Company or any Subsidiary of them may be bound, or to which any of the property or assets of the Company or any Subsidiary of its subsidiaries is subject (collectively, “Agreements and Instruments”), ) except for such defaults that would not reasonably be expected to result in a Material Adverse EffectChange; and the execution, delivery and performance of this Agreement, the Indenture, the Notes and any other agreement or instrument entered into or issued or to be entered into or issued by the Company of this Agreement in connection with the transactions contemplated hereby or thereby or in the Disclosure Package and the Prospectus and the consummation of the transactions contemplated herein hereby or by the Disclosure Package and the Prospectus (including the issuance and sale of the Securities Notes and the use of the proceeds from the sale of the Securities Notes as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that 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 charter or Bylaws by-laws of the Company or the organizational documents any of any Subsidiary its subsidiaries or (including, without limitation, partnership and limited liability company operating agreements), B) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary 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 behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any Subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. The Company is not in violation of its Amended and Restated Certificate Articles of Incorporation (as amended and restated, the “Charter”) ), or its Amended and Restated Bylaws (as amended and restated, the “Bylaws”). No Subsidiary ; none of the Subsidiaries is in violation of its charter, bylaws or other organizational documents (including, without limitation, partnership and limited liability company agreements). Neither neither the Company nor any of its Subsidiaries is in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary of its Subsidiaries is a party or by which the Company it or any Subsidiary of them may be bound, or to which any of the property or assets of the Company or any Subsidiary is subject (collectively, “Agreements and Instruments”), or in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority having jurisdiction over the Company or any of its Subsidiaries, 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 by the Company of this Agreement and the consummation of the transactions contemplated herein herein, and in the Registration Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not 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 or Bylaws of the Company or the charter, bylaws or other organizational documents document of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), 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 Company or any Subsidiary or any of 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 behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any Subsidiary.

Absence of Defaults and Conflicts. The Company Fund is not in violation of its Amended and Restated Certificate declaration of Incorporation (“Charter”) trust or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (includingby-laws, without limitationeach as amended from time to time, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries is or in default in any material respects in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary it is a party or by which the Company or any Subsidiary it may be bound, or to which any of the property or assets of the Company or any Subsidiary Fund is subject (collectively, “"Agreements and Instruments”), ") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance by the Company of this Agreement, the Investment Management Agreement, the Sub-Advisory Agreement, the Administration and Accounting Services Agreement, the Custodian Services Agreement and the Transfer Agency Services Agreement referred to in the Registration Statement (as used herein, the "Management Agreement," the "Sub-Advisory Agreement," the "Administration Agreement," the "Custodian Agreement" and the "Transfer Agency Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company Fund with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action Fund actions and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the Charter declaration of trust or Bylaws by-laws of the Company Fund, each as amended from time to time, or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary Fund or any of their its 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 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any SubsidiaryFund.

Absence of Defaults and Conflicts. The Company is not in violation of its Amended and Restated Certificate of Incorporation (“Charter”) or its Amended and Restated Bylaws (“Bylaws”). No Subsidiary is in violation of its organizational documents (including, without limitation, partnership and limited liability company agreements). Neither the Company nor any of its Subsidiaries subsidiaries is in violation of or in default in the performance or observance (nor has any event occurred which with notice, lapse of time or both would constitute a default in the observance or performance) of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary of its subsidiaries is a party or by which the Company it or any Subsidiary of them may be bound, or to which any of the property or assets of the Company or any Subsidiary subsidiary is subject (collectively, “Agreements and Instruments”), ) that is included as an exhibit to the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and in the Final Offering Memorandum except as disclosed in the Disclosure Package and the Final Offering Memorandum or for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of the Transaction Documents and any other agreement or instrument entered into or issued or to be entered into or issued by the Company of this Agreement in connection with the transactions contemplated hereby or thereby or in the Disclosure Package and the Final Offering Memorandum and the consummation of the transactions contemplated herein and in the Disclosure Package and the 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 Registration Statement, the General Disclosure Package and the Prospectus Final Offering Memorandum under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and thereunder under 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 default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the Charter charter or Bylaws by-laws of the Company or the organizational documents of any Subsidiary (including, without limitation, partnership and limited liability company operating agreements), subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary subsidiary or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any Subsidiarysubsidiary.

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