Common use of Representations and Warranties; Agreements Clause in Contracts

Representations and Warranties; Agreements. a. The Investment Adviser represents and warrants to, and agrees with, the Dealer Manager as of the date hereof and as of the date of the commencement of the Offer that: i. The Investment Adviser has been duly organized and is validly existing as a limited liability company under the laws of the Federal Republic of Germany, has full power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement and the Prospectus, and is duly qualified to do business as a foreign corporation in each jurisdiction wherein it owns or leases real property or in which the conduct of its business requires such qualification, except where the failure to be so qualified does not involve a material adverse effect upon the Investment Adviser's business, properties, financial position or operations. ii. The Investment Adviser is duly registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the "Advisers Act"), and is not prohibited by the Advisers Act or the Investment Company Act, or the rules and regulations under such Acts, from acting as investment adviser for the Fund as contemplated in the Prospectus and the Investment Advisory Agreement. iii. This Agreement has been duly authorized, executed and delivered by the Investment Adviser. The Investment Advisory Agreement has been duly authorized, executed and delivered by the Investment Adviser, and complies with all applicable provisions of the Investment Company Act, the Advisers Act and the rules and regulations under such Acts, and is, assuming due authorization, execution and delivery by the other party thereto, a legal, valid, binding and enforceable obligation of the Investment Adviser, subject to the qualification that the enforceability of the Investment Adviser's obligations thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights, to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and to termination under the Investment Company Act. iv. Neither the execution, delivery, performance and consummation by the Investment Adviser of its obligations under the Investment Advisory Agreement nor the consummation of the transactions contemplated therein or in connection with the Offer will conflict with or violate the charter, by-laws or similar organizational documents of the Investment Adviser, or conflict with, result in a breach of, or constitute a default or an event of default under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Investment Adviser under the charter, bylaws or similar organizational document, the terms and provisions of any material agreement, indenture, mortgage, loan agreement, note, insurance or surety agreement, lease or other instrument to which the Investment Adviser is a party or by which it may be bound or to which any of the property or assets of the Investment Adviser is subject, nor will such action result in any violation of any order, law, rule or regulation of any court or governmental agency or body having jurisdiction over the Investment Adviser or any of its properties. v. There is no pending or, to the best of the Investment Adviser's knowledge, threatened action, suit or proceeding affecting the Investment Adviser or to which the Investment Adviser is a party before or by any court or governmental agency, authority or body or any arbitrator which would disqualify the Investment Adviser pursuant to Section 9(a) of the Investment Company Act from acting as investment adviser to the Fund or is otherwise reasonably likely to result in any material adverse change in the Investment Adviser's ability to perform its services under the Investment Advisory Agreement. vi. No consent, approval, authorization, notification or order of, or filing with, or the issuance of any license or permit by, any court or governmental agency or body is required for the consummation by the Investment Adviser of the transactions contemplated by the Investment Advisory Agreement or in connection with the Offer to be consummated by the Investment Advisor except such as have been obtained, or if the registration statement filed with respect to the Shares is not effective under the Securities Act as of the time of execution hereof, such as may be required (and shall be obtained as provided in this Agreement) under the Investment Company Act, the Securities Act and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or by the National Association of Securities Dealers, Inc., the New York Stock Exchange or the Frankfurt Stock Exchange. vii. The Investment Adviser (A) has not taken, directly or indirectly, any action designed to cause or to result in, or that has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Fund to facilitate the issuance of the Rights or the sale or resale of the Rights and the Shares, (B) has not since the filing of the Registration Statement sold, bid for or purchased, or paid anyone any compensation for soliciting purchases of, Common Shares of the Fund (except for the solicitation of exercises of the Rights pursuant to this Agreement) and (C) will not, until the later of the expiration of the Rights or the completion of the distribution (within the meaning of the anti-manipulation rules under the Exchange Act) of the Shares, sell, bid for or purchase, pay or agree to pay any person any compensation for soliciting another to purchase any other securities of the Fund (except for the solicitation of exercises of the Rights pursuant to this Agreement); provided that any action in connection with the Fund's dividend reinvestment and cash purchase plan will not be deemed to be within the terms of this Section 1(a)(vii). b. The Investment Adviser agrees to notify promptly in writing, from the date of this Agreement through the expiration date of the Offer set forth in the Prospectus, as it may be extended as provided for in the Prospectus (the "Expiration Date"), if any representation, warranty or agreement of the Investment Adviser set forth in Section 1(a) of this Agreement shall be untrue or incorrect in any material respect.

Representations and Warranties; Agreements. a. The Investment Adviser represents and warrants to, and agrees with, the Dealer Manager as of the date hereof and as of the date of the commencement of the Offer that: i. The Investment Adviser has been duly organized and is validly existing as a limited liability company under the laws of the Federal Republic of Germany, has full power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement and the Prospectus, and is duly qualified to do business as a foreign corporation in each jurisdiction wherein it owns or leases real property or in which the conduct of its business requires such qualification, except where the failure to be so qualified does not involve a material adverse effect upon the Investment Adviser's business, properties, financial position or operations. ii. The Investment Adviser is duly registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the "Advisers Act"'), and is not prohibited by the Advisers Act or the Investment Company Act, or the rules and regulations under such Acts, from acting as investment adviser for the Fund as contemplated in the Prospectus and the Investment Advisory Agreement. iii. This Agreement has been duly authorized, executed and delivered by the Investment Adviser. The Investment Advisory Agreement has been duly authorized, executed and delivered by the Investment Adviser, and complies with all applicable provisions of the Investment Company Act, the Advisers Act and the rules and regulations under such Acts, and is, assuming due authorization, execution and delivery by the other party thereto, a legal, valid, binding and enforceable obligation of the Investment Adviser, subject to the qualification that the enforceability of the Investment Adviser's obligations thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights, to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and to termination under the Investment Company Act. iv. Neither the execution, delivery, performance and consummation by the Investment Adviser of its obligations under this Agreement or the Investment Advisory Agreement nor the consummation of the transactions contemplated herein or therein or in connection with the Offer will conflict with or violate the charter, by-laws or similar organizational documents of the Investment Adviser, or conflict with, result in a breach of, or constitute a default or an event of default under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Investment Adviser under the charter, bylaws or similar organizational document, the terms and provisions of any material agreement, indenture, mortgage, loan agreement, note, insurance or surety agreement, lease or other instrument to which the Investment Adviser is a party or by which it may be bound or to which any of the property or assets of the Investment Adviser is subject, nor will such action result in any violation of any order, law, rule or regulation of any court or governmental agency or body having jurisdiction over the Investment Adviser or any of its properties. v. There is no pending or, to the best of the Investment Adviser's knowledge, threatened action, suit or proceeding affecting the Investment Adviser or to which the Investment Adviser is a party before or by any court or governmental agency, authority or body or any arbitrator which would disqualify the Investment Adviser pursuant to Section 9(a) of the Investment Company Act from acting as investment adviser to the Fund or is otherwise reasonably likely to result in any material adverse change in the Investment Adviser's ability to perform its services under the Investment Advisory Agreement. vi. No consent, approval, authorization, notification or order of, or filing with, or the issuance of any license or permit by, any court or governmental agency or body is required for the consummation by the Investment Adviser of the transactions contemplated by the Investment Advisory Agreement or in connection with the Offer offer to be consummated by the Investment Advisor Adviseor except such as have been obtained, or if the registration statement filed with respect to the Shares is not effective under the Securities Act as of the time of execution hereof, such as may be required (and shall be obtained as provided in this Agreement) under the Investment Company Act, the Securities Act and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or by the National Association of Securities Dealers, Inc., the New York Stock Exchange or the Frankfurt Stock Exchange. vii. The Investment Adviser (A) has not taken, directly or indirectly, any action designed to cause or to result in, or that has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Fund to facilitate the issuance of the Rights or the sale or resale of the Rights and the Shares, (B) has not since the filing of the Registration Statement sold, bid for or purchased, or paid anyone any compensation for soliciting purchases of, Common Shares of the Fund (except for the solicitation of exercises of the Rights pursuant to this Agreement) and (C) will not, until the later of the expiration of the Rights or the completion of the distribution (within the meaning of the anti-manipulation rules under the Exchange Act) of the Shares, sell, bid for or purchase, pay or agree to pay any person any compensation for soliciting another to purchase any other securities of the Fund (except for the solicitation of exercises of the Rights pursuant to this Agreement); provided that any action in connection with the Fund's dividend reinvestment and cash purchase plan will not be deemed to be within the terms of this Section 1(a)(vii)1.a. b. The Investment Adviser agrees to notify promptly in writing, from the date of this Agreement through the expiration date of the Offer set forth in the Prospectus, as it may be extended as provided for in the Prospectus (the "Expiration Date"), if any representation, warranty or agreement of the Investment Adviser set forth in Section 1(a) of this Agreement shall be untrue or incorrect in any material respect.

Representations and Warranties; Agreements. a. The Investment Adviser Each Subsidiary Guarantor represents and warrants to, and agrees with, the Dealer Manager as of the date hereof and as of the date of the commencement of the Offer to each Holder that: i. The Investment Adviser has been (a) Such Subsidiary Guarantor is a corporation or other legal entity duly organized and is organized, validly existing as a limited liability company and in good standing under the laws of the Federal Republic its jurisdiction of Germany, has full power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement and the Prospectusorganization, and is duly qualified to do business as a foreign corporation or other legal entity and is in good standing in each jurisdiction wherein it owns or leases real property or in which the conduct of its business requires such qualificationqualification is required by law, except where other than those jurisdictions as to which the failure to be so qualified does not involve or in good standing would not, individually or in the aggregate, reasonably be expected to have a material adverse effect upon on (1) the Investment Adviser's business, propertiesoperations, affairs, financial position condition, assets or operationsproperties of the Company and its subsidiaries, taken as a whole, or (2) the ability of such Subsidiary Guarantor to perform its obligations under this Agreement, or (3) the validity or enforceability of this Agreement. Such Subsidiary Guarantor has the power and authority to own or hold under lease the properties it purports to own or hold under lease, to transact the business it transacts and proposes to transact, to execute and deliver this Agreement and to perform the provisions hereof. ii. The Investment Adviser is duly registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the "Advisers Act"), and is not prohibited by the Advisers Act or the Investment Company Act, or the rules and regulations under such Acts, from acting as investment adviser for the Fund as contemplated in the Prospectus and the Investment Advisory Agreement. iii. b) This Agreement has been duly authorized, executed and delivered authorized by all necessary action on the Investment Adviser. The Investment Advisory Agreement has been duly authorized, executed and delivered by the Investment Adviserpart of such Subsidiary Guarantor, and complies with all applicable provisions of the Investment Company Act, the Advisers Act and the rules and regulations under such Acts, and is, assuming due authorization, execution and delivery by the other party thereto, this Agreement constitutes a legal, valid, valid and binding and enforceable obligation of the Investment Advisersuch Subsidiary Guarantor enforceable against such Subsidiary Guarantor in accordance with its terms, subject to the qualification that the except as such enforceability of the Investment Adviser's obligations thereunder may be limited by (1) applicable bankruptcy, insolvency, reorganization, moratorium and or other similar laws affecting the enforcement of general applicability relating to or affecting creditors' rights, to ’ rights generally and (2) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and to termination under the Investment Company Act. iv). Neither the execution, delivery, performance and consummation by the Investment Adviser of its obligations under the Investment Advisory Agreement nor the consummation of the transactions contemplated therein or in connection with the Offer will conflict with or violate the charter, by-laws or similar organizational documents of the Investment Adviser, or conflict with, result in a breach of, or constitute a default or an event of default under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Investment Adviser under the charter, bylaws or similar organizational document, the terms and provisions of any material agreement, indenture, mortgage, loan agreement, note, insurance or surety agreement, lease or other instrument to which the Investment Adviser is a party or by which it may be bound or to which any of the property or assets of the Investment Adviser is subject, nor will such action result in any violation of any order, law, rule or regulation of any court or governmental agency or body having jurisdiction over the Investment Adviser or any of its properties. v. There is no pending or, to the best of the Investment Adviser's knowledge, threatened action, suit or proceeding affecting the Investment Adviser or to which the Investment Adviser is a party before or by any court or governmental agency, authority or body or any arbitrator which would disqualify the Investment Adviser pursuant to Section 9(a) of the Investment Company Act from acting as investment adviser to the Fund or is otherwise reasonably likely to result in any material adverse change in the Investment Adviser's ability to perform its services under the Investment Advisory Agreement. vi. No consent, approval, authorization, notification or order of, or filing with, or the issuance of any license or permit by, any court or governmental agency or body is required for the consummation by the Investment Adviser of the transactions contemplated by the Investment Advisory Agreement or in connection with the Offer to be consummated by the Investment Advisor except such as have been obtained, or if the registration statement filed with respect to the Shares is not effective under the Securities Act as of the time of execution hereof, such as may be required (and shall be obtained as provided in this Agreement) under the Investment Company Act, the Securities Act and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or by the National Association of Securities Dealers, Inc., the New York Stock Exchange or the Frankfurt Stock Exchange. vii. The Investment Adviser (A) has not taken, directly or indirectly, any action designed to cause or to result in, or that has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Fund to facilitate the issuance of the Rights or the sale or resale of the Rights and the Shares, (B) has not since the filing of the Registration Statement sold, bid for or purchased, or paid anyone any compensation for soliciting purchases of, Common Shares of the Fund (except for the solicitation of exercises of the Rights pursuant to this Agreement) and (C) will not, until the later of the expiration of the Rights or the completion of the distribution (within the meaning of the anti-manipulation rules under the Exchange Act) of the Shares, sell, bid for or purchase, pay or agree to pay any person any compensation for soliciting another to purchase any other securities of the Fund (except for the solicitation of exercises of the Rights pursuant to this Agreement); provided that any action in connection with the Fund's dividend reinvestment and cash purchase plan will not be deemed to be within the terms of this Section 1(a)(vii). b. The Investment Adviser agrees to notify promptly in writing, from the date of this Agreement through the expiration date of the Offer set forth in the Prospectus, as it may be extended as provided for in the Prospectus (the "Expiration Date"), if any representation, warranty or agreement of the Investment Adviser set forth in Section 1(a) of this Agreement shall be untrue or incorrect in any material respect.EXHIBIT D - FORM OF GUARANTEE

Representations and Warranties; Agreements. a. The Investment Adviser Each Subsidiary Guarantor represents and warrants to, and agrees with, the Dealer Manager as of the date hereof and as of the date of the commencement of the Offer to each Holder that: i. The Investment Adviser has been (a) Such Subsidiary Guarantor is a corporation or other legal entity duly organized and is organized, validly existing as a limited liability company and in good standing under the laws of the Federal Republic its jurisdiction of Germany, has full power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement and the Prospectusorganization, and is duly qualified to do business as a foreign corporation or other legal entity and is in good standing in each jurisdiction wherein it owns or leases real property or in which the conduct of its business requires such qualificationqualification is required by law, except where other than those jurisdictions as to which the failure to be so qualified does not involve or in good standing would not, individually or in the aggregate, reasonably be expected to have a material adverse effect upon on (1) the Investment Adviser's business, propertiesoperations, affairs, financial position condition, assets or operationsproperties of the Company and its subsidiaries, taken as a whole, or (2) the ability of such Subsidiary Guarantor to perform its obligations under this Agreement, or (3) the validity or enforceability of this Agreement. Such Subsidiary Guarantor has the power and authority to own or hold under lease the properties it purports to own or hold under lease, to transact the business it transacts and proposes to transact, to execute and deliver this Agreement and to perform the provisions hereof. ii. The Investment Adviser is duly registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the "Advisers Act"), and is not prohibited by the Advisers Act or the Investment Company Act, or the rules and regulations under such Acts, from acting as investment adviser for the Fund as contemplated in the Prospectus and the Investment Advisory Agreement. iii. b) This Agreement has been duly authorized, executed and delivered authorized by all necessary action on the Investment Adviser. The Investment Advisory Agreement has been duly authorized, executed and delivered by the Investment Adviserpart of such Subsidiary Guarantor, and complies with all applicable provisions of the Investment Company Act, the Advisers Act and the rules and regulations under such Acts, and is, assuming due authorization, execution and delivery by the other party thereto, this Agreement constitutes a legal, valid, valid and binding and enforceable obligation of the Investment Advisersuch Subsidiary Guarantor enforceable against such Subsidiary Guarantor in accordance with its terms, subject to the qualification that the except as such enforceability of the Investment Adviser's obligations thereunder may be limited by (1) applicable bankruptcy, insolvency, reorganization, moratorium and or other similar laws affecting the enforcement of general applicability relating to or affecting creditors' rights, to ’ rights generally and (2) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and to termination under the Investment Company Act). iv. Neither the (c) The execution, delivery, delivery and performance and consummation by the Investment Adviser such Subsidiary Guarantor of its obligations under the Investment Advisory this Agreement nor the consummation of the transactions contemplated therein or in connection with the Offer will conflict with or violate the charter, by-laws or similar organizational documents of the Investment Adviser, or conflict withnot (1) contravene, result in a any breach of, or constitute a default or an event of default under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Investment Adviser under the charter, bylaws or similar organizational document, the terms and provisions Lien in respect of any material agreement, property of such Subsidiary Guarantor or any of its subsidiaries under any indenture, mortgage, loan deed of trust, loan, purchase or credit agreement, notelease, insurance charter document or surety agreementby-law, lease or any other agreement or instrument to which the Investment Adviser such Subsidiary Guarantor or any of its subsidiaries is a party bound or by which it such Subsidiary Guarantor or any of its subsidiaries or any of their respective properties may be bound or to which affected, (2) conflict with or result in a breach of any of the property terms, conditions or assets of the Investment Adviser is subject, nor will such action result in any violation provisions of any order, lawjudgment, decree, or ruling of any court, arbitrator or Governmental Authority applicable to such Subsidiary Guarantor or any of its subsidiaries or (3) violate any provision of any statute or other rule or regulation of any court or governmental agency or body having jurisdiction over Governmental Authority applicable to the Investment Adviser such Subsidiary Guarantor or any of its propertiessubsidiaries. v. There is no pending or, to the best of the Investment Adviser's knowledge, threatened action, suit or proceeding affecting the Investment Adviser or to which the Investment Adviser is a party before or by any court or governmental agency, authority or body or any arbitrator which would disqualify the Investment Adviser pursuant to Section 9(a(d) of the Investment Company Act from acting as investment adviser to the Fund or is otherwise reasonably likely to result in any material adverse change in the Investment Adviser's ability to perform its services under the Investment Advisory Agreement. vi. No consent, approval, authorization, notification approval or order authorization of, or registration, filing or declaration with, or the issuance of any license or permit by, any court or governmental agency or body Governmental Authority is required for the consummation by the Investment Adviser of the transactions contemplated by the Investment Advisory Agreement or in connection with the Offer execution, delivery or performance by such Subsidiary Guarantor of this Agreement. (e) Without in any way limiting the generality of the warranties and representations contained in Section 5 of the Note Purchase Agreement, each of such warranties and representations is, insofar as it refers to be consummated by the Investment Advisor except such as have been obtainedany Subsidiary, or if the registration statement filed true and correct with respect to the Shares is not effective under the Securities Act as Subsidiary Guarantor. Each Subsidiary Guarantor will comply with each of the time provisions of execution hereof, such as may be required (Section 9 and shall be obtained as provided in this Agreement) under the Investment Company Act, the Securities Act and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or by the National Association of Securities Dealers, Inc., the New York Stock Exchange or the Frankfurt Stock Exchange. vii. The Investment Adviser (A) has not taken, directly or indirectly, any action designed to cause or to result in, or that has constituted or which might reasonably be expected to constitute, the stabilization or manipulation Section 10 of the price of Note Purchase Agreement, and each other covenant and agreement contained therein, that is applicable to any security of the Fund to facilitate the issuance of the Rights or the sale or resale of the Rights and the Shares, (B) has not since the filing of the Registration Statement sold, bid for or purchased, or paid anyone any compensation for soliciting purchases of, Common Shares of the Fund (except for the solicitation of exercises of the Rights pursuant to this Agreement) and (C) will not, until the later of the expiration of the Rights or the completion of the distribution (within the meaning of the anti-manipulation rules under the Exchange Act) of the Shares, sell, bid for or purchase, pay or agree to pay any person any compensation for soliciting another to purchase any other securities of the Fund (except for the solicitation of exercises of the Rights pursuant to this Agreement); provided that any action in connection with the Fund's dividend reinvestment and cash purchase plan will not be deemed to be within the terms of this Section 1(a)(vii)Subsidiary generally. b. The Investment Adviser agrees to notify promptly in writing, from the date of this Agreement through the expiration date of the Offer set forth in the Prospectus, as it may be extended as provided for in the Prospectus (the "Expiration Date"), if any representation, warranty or agreement of the Investment Adviser set forth in Section 1(a) of this Agreement shall be untrue or incorrect in any material respect.