Common use of Representations and Warranties of the Trust Clause in Contracts

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Agent that: (1) the Trust is duly organized and is validly existing as a business trust in good standing under the laws of The Commonwealth of Massachusetts, and has full power to execute and deliver this Agreement and to authorize, create and issue the shares of APS; (2) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4) the forms of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been taken; (7) the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS do not and will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the Trust, any law or regulation applicable to the Trust, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is bound; and (8) no taxes are payable upon or in respect of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APS.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Agent that: (1a) the Trust is duly lawfully organized and is validly existing as a business trust in good standing under the laws of The Commonwealth the State of Massachusetts, Delaware and has full power to execute it does and deliver this Agreement and to authorize, create and issue will comply in all material respects with applicable provisions of the shares of APS1940 Act; (2b) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3) Shares sold pursuant to this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4) the forms of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities 1933 Act of 1933, as amendedand duly authorized for issuance in accordance with applicable law, and no further action by or before any governmental body or authority of the United States or of any state thereof Trust is required in connection with and will remain registered as an open-end, management investment company under the execution 1940 Act for as long as such Shares are sold and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been takenremain outstanding; (7c) it will amend the execution and delivery of this Agreement registration statement for the Trust’s Shares under the 1933 Act and the issuance 1940 Act from time to time as required in order to effect the continuous offering of its Shares; (d) it will register and delivery qualify the Trust’s Shares for sale in accordance with the laws of the shares various states only if and to the extent deemed advisable by the Trust; (e) each Fund is currently qualified as a regulated investment company under Subchapter M of each series of APS do not the Code and will not conflict with, violatemake every effort to maintain such qualification. Each Fund shall promptly notify Nationwide upon having a reasonable basis for believing that it has ceased to so qualify, or result that it may not qualify as such in the future; (f) each Fund currently complies with the diversification requirements of Section 817(h) of the Code and Section 1.817-5(b) of the Federal Tax Regulations, if required, and each Fund will make every effort to maintain compliance with such diversification requirements, unless such Fund is otherwise exempt from Section 817(h) and/or except as otherwise disclosed in such Fund’s prospectus. In the event that a breach ofFund ceases to comply with Section 817(h), the terms, conditions or provisions of, or constitute a default under, Trust shall promptly notify Nationwide and it shall make every effort to remedy such failure to comply within the Declaration of Trust or the Amended By-Laws of the Trust, any law or regulation applicable to the Trust, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or time frame set forth by which it is boundSection 817(h); and (8) no taxes g) the Funds have policies and procedures designed to deter Market Timing, as are payable upon or disclosed in respect of each Fund’s prospectus, and such policies will be uniformly and consistently applied to all Contract Owners unless otherwise disclosed in such Fund’s prospectus. The foregoing representations and warranties will be true and correct at all times during the execution term of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APSAgreement.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Agent that: (1i) the Trust is duly organized and is validly existing as a business trust in good standing under the laws of The Commonwealth of Massachusetts, and has full power to execute and deliver this Agreement and to authorize, create and issue the shares of APS; (2ii) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3iii) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4iv) the forms of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5v) the shares of each series of APS have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6vi) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been taken; (7vii) the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS do not and will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the Trust, any law or regulation applicable to the Trust, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is bound; and (8) viii) no taxes are payable upon or in respect of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APS.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Agent that: (1a) the Trust is a duly organized and is validly existing as a business trust in good standing under the laws of The Commonwealth the State of Massachusetts, its organization and has full trust power or all requisite power to execute and deliver this the Agreement and to authorize, create and issue the shares APS of APSeach series, and the APS of each series when issued, will be duly authorized, validly issued, fully paid and nonassessable; (2b) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4c) the forms form of the certificates certificate evidencing the shares APS of each series of APS complies or will comply with all applicable laws of The Commonwealth the State of Massachusettsits organization; (5d) when issued, the shares APS of each series of APS will have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this the Agreement or will be have been required in connection with the issuance of the shares APS of APS, except such action as required by applicable state securities laws, all of which action will have been takeneach series; (7e) the execution and delivery of this the Agreement and the issuance and delivery of the shares APS of each series of APS do not and will not conflict with, violate, violate or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the Trust, any law or regulation applicable to the Trustregulation, any order or decree of any court or public authority having jurisdiction over the Trustjurisdiction, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is boundbound the effect of which conflict, violation, default or breach would be material to the Trust or the Trust and its subsidiaries taken as a whole; and (8) f) no taxes are payable upon or in respect of the execution of this the Agreement or will be payable upon or in respect of the issuance of the shares APS of each series of APSany series.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Paying Agent that: (1a) the Trust is duly organized and is a validly existing as a business trust in good standing under the laws of The Commonwealth the State of Massachusetts, Delaware and has the Trustees have full power under the Trust Agreement to execute and deliver this Agreement and to authorize, create and issue the shares of APSDECS; (2) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3b) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation agreement of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4c) the forms form of the certificates certificate evidencing the shares of each series of APS comply DECS complies with all applicable laws of The Commonwealth the State of MassachusettsDelaware and the State of New York; (5d) the shares of each series of APS DECS have been duly and validly authorized authorized, executed and delivered by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be are validly issued, fully paid and nonassessable; (6e) at the time of the offering of the shares of each series of APS, the shares offered will be DECS have been registered under the Securities Act of 1933, as amendedthe Trust has been registered under the Investment Company Act, and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been takenDECS; (7f) the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS DECS do not and will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the TrustAgreement, any law or regulation applicable to the Trustregulation, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is bound; and (8) g) no taxes are payable upon or in respect of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APSDECS.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Agent that: (1a) the Trust is duly organized and is validly existing as a business statutory trust in good standing under the laws of The Commonwealth the State of Massachusetts, its organization and has full trust power or all requisite power to execute and deliver this the Agreement and to authorize, create and issue the shares of APSAMPS, and the AMPS when issued, will be duly authorized, validly issued, fully paid and nonassessable; (2b) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation of the Trust, Trust enforceable against the Trust Auction Agent in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' ’ rights and to general equitable principles; (4c) the forms form of the certificates certificate evidencing the shares of each series of APS AMPS complies or will comply with all applicable laws of The Commonwealth the State of Massachusettsits organization; (5d) when issued, the shares of each series of APS AMPS will have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action by or before any governmental body or authority of the United States or of any state thereof is required of the Trust in connection with the execution and delivery of this the Agreement or will be have been required of the Trust in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been takenAMPS; (7e) the execution and delivery of this the Agreement and the issuance and delivery of the shares of each series of APS AMPS do not and will not conflict with, violate, violate or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the Trust, any law or regulation applicable to the Trustregulation, any order or decree of any court or public authority having jurisdiction over the Trustjurisdiction, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is boundbound the effect of which conflict, violation, default or breach would be material to the Trust; and (8) f) no taxes are payable upon or in respect of the execution of this the Agreement or will be payable upon or in respect of the issuance of the shares of each series of APSAMPS.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Paying Agent that: (1a) the Trust is duly organized and is a validly existing as a business trust in good standing under the laws of The Commonwealth of Massachusetts, Delaware Act and has full power under the Trust Agreement to execute and deliver this Agreement and to authorize, create and issue the shares of APSSTRYPES; (2) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3b) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation agreement of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4c) the forms form of the certificates certificate evidencing the shares of each series of APS comply STRYPES complies with all applicable laws of The Commonwealth the State of MassachusettsDelaware and the State of New York; (5d) the shares of each series of APS STRYPES have been duly and validly authorized authorized, executed and delivered by the Trust and, upon completion of and are validly issued; (e) the initial offer and sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at STRYPES subject to the time of the offering of the shares of each series of APS, the shares offered will be Purchase Agreement has been registered under the Securities Act of 1933, as amended, and the Trust has been registered under the Investment Company Act and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been takenSTRYPES; (7f) the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS STRYPES do not and will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the TrustAgreement, any law or regulation applicable to the Trustregulation, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is bound; and (8) g) no taxes are payable upon or in respect of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APSSTRYPES.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Agent ALPS that: (1a) the Trust It is a statutory trust duly organized and is validly existing as a business trust and in good standing under the laws of The Commonwealth the state of Massachusetts, Delaware and has full power to execute and deliver this Agreement and to authorize, create and issue the shares of APS; (2) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, SEC as amended, as a closedan open-end, non-diversified, end management investment company;. (3b) It is empowered under applicable laws and by its Declaration of Trust and By-laws to enter into and perform this Agreement. (c) The Board of Trustees of the Trust has duly authorized it to enter into and perform this Agreement. (d) Notwithstanding anything in this Agreement has to the contrary, the Trust agrees not to make any modifications to its registration statement or adopt any policies which would affect materially the obligations or responsibilities of ALPS hereunder without the prior written approval or ALPS, which approval shall not be unreasonably withheld or delayed. (e) The registration statement and each Fund’s prospectus and statement of additional information: (i) have been duly prepared, and validly authorized, executed all sales literature and delivered advertisements approved by the Trust and/or the Trust’s investment adviser or other materials prepared by or on behalf of the Trust for ALPS’ use (“Sales Materials”) shall be prepared, in all material respects, in conformity with the 1933 Act, the 1940 Act and constitutes the legalrules and regulations of the SEC (the “Rules and Regulations”) and (ii) contain, valid and binding obligation all Sales Materials shall contain, all statements required to be stated therein in accordance with the 1933 Act, the 1940 Act and the Rules and Regulations. (f) All statements of fact contained therein, or to be contained in all Sales Materials, are or will be true and correct in all material respects at the time indicated or the effective date, as the case may be, and none of the registration statement, any Fund’s prospectus or statement of additional information, nor any Sales Materials shall include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of each Fund’s prospectus or statement of additional information in light of the circumstances in which made, not misleading. The Trust shall, from time to time, file such amendment or amendments to the registration statement and each Fund’s prospectus statement of additional information as, in the light of future developments, shall, in the opinion of the Trust’s counsel, enforceable against be necessary in order to have the registration statement and each Fund’s prospectus or statement of additional information at all times contain all material facts required to be stated therein or necessary to make the statements therein, in the case of each Fund’s prospectus or statement of additional information in light of the circumstances in which made, not misleading. The Trust shall not file any amendment to the registration statement or a Fund’s prospectus or statement of additional information without providing ALPS reasonable notice thereof in advance, provided that nothing in this Agreement shall in any way limit the Trust’s right to file at any time such amendments to the registration statement or a Fund’s prospectus or statement of additional information as the Trust in accordance with its termsmay deem advisable. Notwithstanding the foregoing, subject the Trust shall not be deemed to make any representation or warranty as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to any information or affecting creditors' rights and to general equitable principles; (4) statement provided by ALPS for inclusion in the forms of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been taken; (7) the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS do not and will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the Trust, any law or regulation applicable to the Trust, any order or decree of any court or public authority having jurisdiction over the Trust, registration statement or any mortgage, indenture, contract, agreement Fund’s prospectus or undertaking to which the Trust is a party or by which it is bound; and (8) no taxes are payable upon or in respect statement of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APSadditional information.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Paying Agent that: (1a) the Trust is duly organized and is a validly existing as a business trust in good standing under the laws of The Commonwealth the State of Massachusetts, New York and has the Trustees have full power under the Trust Agreement to execute and deliver this Agreement on behalf of the Trust and to authorize, create and issue the shares of APSSecurities; (2) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3b) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation agreement of the Trust, Trust enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' ’ rights and to general equitable principles; (4c) the forms form of the certificates certificate evidencing the shares of each series of APS comply Securities complies with all applicable laws of The Commonwealth the State of MassachusettsNew York; (5d) the shares of each series of APS Securities have been duly and validly authorized authorized, executed and delivered by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be are validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been taken; (7e) the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS Securities do not and will not conflict with, violate, violate or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the TrustAgreement, any law or regulation applicable to the Trustregulation, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is bound; and (8) f) no taxes are payable upon or in respect of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APSSecurities.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Agent that: (1i) the Trust is a duly organized and is validly existing as a business trust in good standing under the laws of The Commonwealth the State of Massachusettsits incorporation or organization, and has full corporate power to execute and deliver this Agreement and to authorize, create and issue the shares of APSAMPS; (2) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3ii) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4iii) the forms form of the certificates evidencing the shares of each series of APS AMPS comply with all applicable laws of The Commonwealth the State of MassachusettsDelaware; (5iv) the shares of each series of APS have AMPS has been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS AMPS and receipt of payment therefor, will be validly issuedissued by the Trust, fully paid and nonassessable; (6v) at the time of the offering of when issued, the shares of each series of APS, the shares offered AMPS will be have been duly registered under the Securities Act of 1933, as amended, and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been takenAMPS; (7vi) the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS AMPS do not and will not conflict with, violate, or result in a breach of, of the terms, conditions or provisions of, or constitute a default under, the Agreement and Declaration of the Trust or the Amended By-Laws of the Trust, any law or regulation applicable to the Trust, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is bound; and (8) vii) no taxes are payable upon or in respect of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APSAMPS.

Representations and Warranties of the Trust. The Trust represents and warrants to BPY as follows and acknowledges that BPY is relying on such representations and warranties in connection with the Auction Agent thatTransaction: (1a) the Special Committee has received the Valuation and Fairness Opinion from the Financial Advisor and, as of the date hereof: (i) the Special Committee, after consultation with its financial and legal advisors, has determined unanimously that the Transaction is in the best interests of the Trust and is fair to the Public Unitholders and has unanimously recommended that the Unconflicted Board of Trustees approve the Transaction and recommend to the Trust Unitholders that they vote their Trust Units in favour of the Transaction; and (ii) the Unconflicted Board of Trustees, having received the recommendation of the Special Committee and after consultation with its legal advisors has determined unanimously that the Transaction is in the best interests of the Trust and is fair to the Public Unitholders, has unanimously approved the Transaction and the execution and performance of this Agreement and resolved unanimously to recommend to the Trust Unitholders that they vote their Trust Units in favour of the Transaction; (b) the Trust is duly organized and is validly existing as a business trust in good standing under the provincial laws of The Commonwealth of MassachusettsOntario, and has full the power to execute and deliver enter into this Agreement and to authorizeperform its obligations hereunder and is duly qualified to do business in each jurisdiction in which the nature of its business makes such qualification necessary, create and issue the shares of APSexcept where such failure to qualify would not have or would not reasonably be expected to have a Material Adverse Effect; (2c) the authorized and issued capital of the Trust is registered consists of (i) an unlimited number of Trust Units and (ii) an unlimited number of Special Voting Units. As of the close of business on April 19, 2017, 26,433,449 Trust Units and 67,088,022 Special Voting Units have been validly issued and are outstanding as fully paid and non-assessable units and have not been issued in violation of any pre-emptive rights or other contractual rights to purchase securities granted by the Trust or arising under any applicable Law. As of the close of business on April 19, 2017, an aggregate of 67,088,022 Trust Units were issuable upon the exchange or conversion of the Class B LP Units and such Trust Units, upon issuance, will be validly issued and outstanding as fully paid and non-assessable units, and will not have been issued in violation of any pre-emptive rights or other contractual rights to purchase securities granted by the Trust or arising under any applicable Law. As of the date hereof, except for DTUs and Class B LP Units, there are no options, warrants, conversion privileges, commitments (contingent or otherwise) or other agreements or any right or privilege (whether by law, pre-emptive or contractual) capable of becoming an agreement, for the purchase, allotment or issuance of, or subscription for, any securities of the Trust, or any securities convertible or exchangeable into, or exercisable for, or otherwise evidencing a right to acquire, any securities of the Trust. All securities of the Trust (including the DTUs) have been issued in compliance with all applicable Securities Laws. Other than the Trust Units and the Special Voting Units, there are no securities of the Trust or of any of its subsidiaries outstanding which have the right to vote generally (or are convertible into or exchangeable for securities having the right to vote generally) with the Securities and Exchange Commission under Trust Unitholders on any matter. Other than as contemplated by this Agreement, there are no outstanding contracts of the Investment Company Act Trust to repurchase, redeem or otherwise acquire any of 1940, as amended, as a closed-end, non-diversified, management investment companyits securities; (3d) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the is a legal, valid and binding obligation of the Trust, enforceable against the Trust by BPY in accordance with its terms, subject as except to such the extent that enforceability to may be limited by applicable bankruptcy, reorganization, insolvency, reorganization moratorium or other Laws affecting the enforcement of creditors’ rights generally and other laws by general principles of general applicability relating to equity, regardless of whether such enforceability is considered in a proceeding at Law or affecting creditors' rights and to general equitable principlesin equity; (4e) the forms of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS have been duly and validly authorized by the Trust andexcept as disclosed to BPY, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with by the issuance Trust and the consummation of the shares of APS, except such action as required by applicable state securities laws, all of which action Transaction will have been taken;not: (7i) result in the execution and delivery breach or violation of this Agreement and the issuance and delivery any of the shares of each series of APS do not and will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, or conflict with or cause the acceleration of any obligation of the Trust under: (A) any provision of the Declaration of Trust or the Amended By-Laws resolutions of the TrustBoard of Trustees (or any committee thereof) or the Trust Unitholders; (B) any provision of the limited partnership agreement of Brookfield Office Properties Canada LP; (C) any judgment, any law or regulation applicable to the Trustdecree, any order or decree award of any court court, governmental body or public authority arbitrator having jurisdiction over the Trust; (D) any licence, permit, approval, consent or authorization held by the Trust that is necessary to the operation of the business carried on by the Trust and its subsidiaries, where such breach, default, conflict or acceleration would have a Material Adverse Effect; (E) any applicable Law, statute, ordinance, regulation or rule, where such breach, default, conflict or acceleration would have a Material Adverse Effect; or (F) any other contract or agreement that is material to the Trust and its subsidiaries, where such breach, default, conflict or acceleration would have a Material Adverse Effect; or (ii) give rise to any right of termination or acceleration of indebtedness of the Trust and its subsidiaries, or cause any mortgage, indenture, contract, agreement or undertaking third party indebtedness of the Trust and its subsidiaries to which come due before its stated maturity; (f) the Trust is a party “reporting issuer” in Canada and is not on the list of reporting issuers in default under applicable Canadian provincial and territorial Securities Laws. The Trust Units are registered under the Exchange Act. The Trust is in compliance with all applicable Securities Laws in all material respects, and no delisting of, suspension of trading in or by which it cease trading order with respect to any securities of the Trust and, to the Knowledge of the Trust, no inquiry or investigation (formal or informal) of any Securities Authorities, is boundin effect or ongoing or, to the Knowledge of the Trust, threatened; (g) except for the Financial Advisor, no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission from, or to the reimbursement of any of its expenses by, the Trust or any of its subsidiaries in connection with this Agreement or the Transaction; (h) to the Knowledge of the Trust, no prior valuations (within the meaning of MI 61-101) of the Trust have been made in the 24 months prior to the date hereof; and (8) no taxes are payable upon or in respect i) as of the execution close of this Agreement or will business on April 19, 2017, an aggregate of approximately $264 million was available to be payable upon or in respect of drawn under the issuance of the shares of each series of APSCredit Facilities.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Agent that: (1a) the Trust is duly organized and is validly existing as a business trust in good standing under the laws of The Commonwealth the State of Massachusetts, its incorporation or organization and has full corporate power or all requisite power to execute and deliver this the Agreement and to authorize, create and issue the shares Preferred Shares of APSeach series, and the Preferred Shares of each series when issued, will be duly authorized, validly issued, fully paid and nonassessable; (2b) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4c) the forms form of the certificates certificate evidencing the shares Preferred Shares of each series of APS complies or will comply with all applicable laws of The Commonwealth the State of Massachusettsits incorporation or organization; (5d) when issued, the shares Preferred Shares of each series of APS will have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this the Agreement or will be have been required in connection with the issuance of the shares Preferred Shares of APS, except such action as required by applicable state securities laws, all of which action will have been takeneach series; (7e) the execution and delivery of this the Agreement and the issuance and delivery of the shares Preferred Shares of each series of APS do not and will not conflict with, violate, violate or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Agreement and Declaration of Trust (as amended by one or more Statements) or the Amended By-Laws of the Trust, any law or regulation applicable to the Trustregulation, any order or decree of any court or public authority having jurisdiction over the Trustjurisdiction, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is boundbound the effect of which conflict, violation, default or breach would be material to the Trust or the Trust and its subsidiaries taken as a whole; and (8) f) no taxes are payable upon or in respect of the execution of this the Agreement or will be payable upon or in respect of the issuance of the shares Preferred Shares of each series of APSany series.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Paying Agent that: (1a) the Trust is duly organized and is a validly existing as a business trust in good standing under the laws of The Commonwealth of Massachusetts, Delaware Act and has full power under the Trust Agreement to execute and deliver this Agreement and to authorize, create and issue the shares of APSTrUEPrS; (2) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3b) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation agreement of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4c) the forms form of the certificates certificate evidencing the shares of each series of APS comply TrUEPrS complies with all applicable laws of The Commonwealth the State of MassachusettsDelaware; (5d) the shares of each series of APS TrUEPrS have been duly and validly authorized authorized, executed and delivered by the Trust and, upon completion of and are validly issued; (e) the initial offer and sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at TrUEPrS pursuant to the time of the offering of the shares of each series of APS, the shares offered will be Purchase Agreement has been registered under the Securities Act of 1933, as amended, and the Trust has been registered under the Investment Company Act and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been takenTrUEPrS; (7f) the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS TrUEPrS do not and will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the TrustAgreement, any law or regulation applicable to the Trustregulation, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is bound; and (8) g) no taxes are payable upon or in respect of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APS.TrUEPrS.

Representations and Warranties of the Trust. (a) The Trust represents and warrants to the Auction Agent that: (1) the Trust that it is duly lawfully organized and is validly existing as a business trust in good standing under the laws of The the Commonwealth of Massachusetts, Massachusetts and has full power to execute that it does and deliver will at all times during the term of this Agreement comply in all material respects with the 1940 Act. (b) The Trust represents and to authorize, create and issue the warrants that shares of APS; (2) the Trust is registered with the Securities Funds offered and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3) sold pursuant to this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4) the forms of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 19331933 Act, as amended, duly authorized for issuance and no further action by or before any governmental body or authority sold in compliance with the laws of the United States or Commonwealth of any Massachusetts and all applicable federal and state thereof securities laws and that the Trust is required in connection with and will remain during the execution and delivery term of this Agreement or registered as an open-end management investment company under the 1940 Act. The Trust agrees that it will be amend the registration statement for its shares under the 1933 Act and the 1940 Act from time to time as required in connection order to permit the continuous offering of its shares in accordance with the issuance 1933 Act. The Trust will register and qualify the shares for sale in accordance with the laws of the various states only if and to the extent deemed advisable by the Trust or Manulife Securities. (c) The Trust represents and warrants that the registration statement for shares of APSthe Funds and any amendments or supplement thereto will, except such action as required by applicable state securities lawswhen they become effective, conform in all material respects to the requirements of which action will have been taken; (7) the execution and delivery of this Agreement 1933 Act and the issuance 1940 Act and delivery the rules and regulations of the shares of each series of APS do not SEC thereunder and will not conflict withcontain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, violateprovided, however, that this representation and warranty will not apply to any statements or result omissions made in reliance upon and in conformity with information furnished in writing to the Trust by or on behalf of a breach of, the terms, conditions or provisions of, or constitute Company expressly for use therein. (d) The Trust represents and warrants that each Fund is currently qualified as a default under, the Declaration of Trust or the Amended By-Laws "regulated investment company" under subchapter M of the Trust, any law or regulation applicable Code and agrees that the Trust will make every effort to the Trust, any order or decree of any court or public authority having jurisdiction over the Trust, maintain such qualification (under Subchapter M or any mortgage, indenture, contract, agreement successor or undertaking similar provision) and will notify the Companies promptly upon having a reasonable basis for believing that any Fund has ceased to which so qualify or might not so qualify in the Trust is a party or by which it is bound; and (8) no taxes are payable upon or in respect of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APSfuture.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Paying Agent that: (1a) the Trust is duly organized and is a validly existing as a business trust in good standing under the laws of The Commonwealth the State of Massachusetts, New York and has the Trustees have full power under the Trust Agreement to execute and deliver this Agreement on behalf of the Trust and to authorize, create and issue the shares of APSSecurities; (2) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3b) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation agreement of the Trust, Trust enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4c) the forms form of the certificates certificate evidencing the shares of each series of APS comply Securities complies with all applicable laws of The Commonwealth the State of MassachusettsNew York; (5d) the shares of each series of APS Securities have been duly and validly authorized authorized, executed and delivered by the Trust and, upon completion of and are validly issued; (e) the initial offer and sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be Securities has been registered under the Securities Act of 1933, as amended, and the Trust has been registered under the Investment Company Act and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been takenSecurities; (7f) the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS Securities do not and will not conflict with, violate, violate or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the TrustAgreement, any law or regulation applicable to the Trustregulation, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is bound; and (8) g) no taxes are payable upon or in respect of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APSSecurities.

Representations and Warranties of the Trust. (a) The Trust represents and warrants to the Auction Agent BISYS that: : (1) the Trust is duly organized and is validly existing as a business trust in good standing under the laws of The Commonwealth of Massachusetts, and has full power to execute and deliver this Agreement and to authorize, create and issue the shares of APS; (2i) the Trust is registered with the Securities and Exchange Commission as an open-end management investment company under the Investment Company Act 1940 Act; (ii) as of 1940the close of business on the Effective Date, each Fund which is in existence as amended, as a closed-end, non-diversified, management investment company; of the Effective Date has authorized unlimited shares; (3iii) this Agreement has been duly and validly authorizedauthorized by the Trust and, when executed and delivered by the Trust and constitutes the Trust, will constitute a legal, valid and binding obligation of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization reorganization, moratorium and other laws of general applicability relating to or application affecting creditors' the rights and remedies of creditors and secured parties; (iv) it has all necessary authorizations, licenses and permits to general equitable principles;carry out its business as currently conducted; and (v) it is in compliance in all material respects with all laws and regulations applicable to its business and operations. (4b) The Trust also represents and warrants to BISYS that: (i) the forms Trust has adopted the written AML Program that has been submitted to BISYS pursuant to Section 18 of this Agreement, and has appointed an officer of the certificates evidencing Trust as the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; Trust’s anti-money laundering compliance officer (5“AML Compliance Officer”); (ii) the shares AML Program and the designation of each series of APS the AML Officer have been duly and validly authorized approved by the Trust and, upon completion Board; (iii) the delegation of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered certain services under the Securities Act of 1933this Agreement to BISYS, as amended, and no further action by or before any governmental body or authority of the United States or of any state thereof is required provided in connection with the execution and delivery Section 22 of this Agreement or will be required in connection with Agreement, has been approved by the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been taken; Board; and (7iv) the execution Trust will submit any material amendments to the AML Program to BISYS for BISYS’ review and delivery consent before adoption in accordance with Section 20 of this Agreement and the issuance and delivery of the shares of each series of APS do not and will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the Trust, any law or regulation applicable to the Trust, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is bound; and (8) no taxes are payable upon or in respect of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APSAgreement.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Agent Jersey Subsidiary as of the date hereof, as of the Exchange Date and as of the Closing Date, that: (1) the 4.1 The Trust is duly organized and is a validly existing as a business trust in good standing under the laws of The Commonwealth of Massachusetts, Delaware Act and has full power and authority to execute and deliver this Agreement and to authorizeperform and observe the provisions hereof, create except as performance may be limited by bankruptcy, insolvency, reorganization, moratorium, or other similar laws now or hereafter in effect relating to creditors' rights, and issue general principles of equity (regardless of whether the shares enforceability of APSsuch performance is considered in a proceeding in equity or at law); (2) 4.2 The execution, delivery and performance of this Agreement by the Trust is registered with do not contravene any requirement of law or any material transactional restriction or material agreement binding on or affecting the Securities and Exchange Commission under the Investment Company Act Trust or any of 1940, as amended, as a closed-end, non-diversified, management investment companyits assets; (3) this 4.3 This Agreement has been duly and validly authorized, properly executed and delivered by the Trust and constitutes the a legal, valid and binding obligation agreement of the Trust, Trust enforceable against the Trust in accordance with its terms, subject except as to such enforceability to the enforcement of rights and remedies may be limited by bankruptcy, insolvency, reorganization and reorganization, moratorium, or other similar laws of general applicability now or hereafter in effect relating to or affecting creditors' rights rights, and to general equitable principlesprinciples of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); (4) 4.4 No declaration or filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the forms of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS have been duly and validly authorized execution, delivery or performance by the Trust and, upon completion of this Agreement or the consummation by the Trust of the initial sale of the shares of transactions contemplated herein and therein, except such series of APS and receipt of payment therefor, will as have been already obtained or as may be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered required under the Securities Act of 1933, as amended, or the rules and no further action by regulations promulgated thereunder or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all ; and 4.5 It is understood that the ADRs evidencing the Subject ADSs may bear either or both of which action will have been taken;the following legends: (7a) the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS do not and will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the Trust, any law or regulation applicable to the Trust, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or Any legend required by which it is boundDTC; and (8) no taxes are payable upon or in respect b) Any legend required by the laws of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APSany other applicable jurisdiction.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Agent that: (1i) the Trust is duly organized and is validly existing as a business trust in good standing under the laws of The the Commonwealth of Massachusetts, and has full power to execute and deliver this Agreement and to authorize, create and issue the shares of APSPreferred Shares; (2ii) the Trust is registered with the Securities and Exchange Commission SEC under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3iii) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4iv) the forms form of the certificates evidencing the shares of each series of APS Preferred Shares comply with all applicable laws of The the Commonwealth of Massachusetts; (5v) the shares of each series of APS Preferred Shares have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS Preferred Shares and receipt of payment therefor, will be validly issuedissued by the Trust, fully paid and nonassessable; (6vi) at the time of the offering of the shares of each series of APSPreferred Shares, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APSPreferred Shares, except such action as required by applicable state securities laws, all of which action will have been taken; (7vii) the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS Preferred Shares do not and will not conflict with, violate, or result in a breach of, of the terms, conditions or provisions of, or constitute a default under, the Trust's Declaration of Trust Trust, as amended, or the Amended By-Laws of the Trust, any law or regulation applicable to the TrustCertificate, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is bound; and (8) viii) no taxes are payable upon or in respect of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APSPreferred Shares.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Agent thatSecurrency as follows: (1a) the Trust It is a statutory trust duly organized organized, validly existing, and is validly existing as a business trust in good standing under the laws of The Commonwealth the State of Massachusetts, and has full power to execute and deliver this Agreement and to authorize, create and issue the shares of APSDelaware; (2b) the Trust It is an open-end investment management company registered with the Securities and Exchange Commission SEC under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company1940 Act; (3c) It is authorized to issue an unlimited number of Shares; (d) It is empowered under applicable laws and governing instruments to enter into and perform this Agreement; (e) The execution, delivery, and performance of this Agreement by the Trust has been duly and validly authorizedauthorized by all necessary action, executed and delivered by the Trust and constitutes the a legal, valid valid, and binding obligation of the Trust, Trust enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4) will not require the forms of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action by or before any governmental body or authority of the United States or consent of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APSthird party that has not been given, except such action as required by applicable state securities laws, all of which action will have been taken; (7) the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS do not and will not violate, conflict with, violate, or result in a the breach ofof any material term, the terms, conditions or provisions ofcondition, or constitute a default underprovision of (i) any existing law, the Declaration of Trust ordinance, or the Amended By-Laws of the Trust, any law governmental rule or regulation to which the Trust is subject, (ii) any judgment, order, writ, injunction, decree, or award of any court, arbitrator or governmental or regulatory official, body, or authority applicable to the Trust, any order or decree of any court or public authority having jurisdiction over (iii) the Trust’s certificate of trust or governing instruments, or and (iv) any mortgage, indenture, contract, material agreement or undertaking to which the Trust is a party or by which it is boundparty; and (8) no taxes f) It further represents and warrants that (i) its use of the Services and the Tokenization Platform complies and will comply with all applicable laws, (ii) it shall make any and all registrations, filings and pay any and all fees required by applicable laws in connection with any offering or the secondary trading of the Shares, (iii) any Shares issued and outstanding on the date hereof have been duly authorized, validly issued and are fully paid and are non-assessable; and any Shares to be issued hereafter, when issued, shall have been duly authorized, validly issued and fully paid and will be non- assessable, (iv) any Shares issued and outstanding on the date hereof have been duly registered under the 1933 Act, and such registration has become effective, or are exempt from such registration; and shall have been duly registered under the 1934 Act, or are exempt from such registration, (v) any Shares to be issued hereafter, when issued, shall have been duly registered under the 1933 Act, and such registration shall have become effective, or shall be exempt from such registration; and shall have been duly registered under the 1934 Act, or shall be exempt from such registration, and (vi) the Trust has paid or caused to be paid all taxes, if any, that were payable upon or in respect of the execution of this Agreement or will be payable upon or in respect of the original issuance of the shares Shares issued and outstanding on the date hereof. The Trust will notify the Transfer Agent promptly if any of each series of APSthe representations and warranties above cease to be true.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Agent thatBuyer as follows: (1a) the Trustee has full right, power and authority to execute and deliver the Trust Agreement (the "Trust Agreement"), dated as of October 31, 2003 by and between Korea Exchange Bank, as grantor, and the Trustee, and to perform its obligations thereunder; the Trust Agreement has been duly authorized, executed and delivered by the Trustee and is valid, binding and enforceable against the Trustee and KEB in accordance with its terms; and the copy of the Trust Agreement previously provided to Buyer is a true, complete and correct copy of such document as in effect on the date of this Agreement; (b) the Trust is duly organized and is validly existing as a business trust in good standing under the laws of The Commonwealth of Massachusetts, and has full right, power and authority to execute and deliver this Agreement and to authorize, create perform its obligations hereunder; and issue the shares of APS; (2) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legalis valid, valid binding and binding obligation of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4c) the forms of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with neither the execution and delivery of this Agreement or will be required in connection with nor the issuance performance of the shares of APS, except such action as required transactions contemplated hereby by applicable state securities laws, all of which action the Trust will have been taken; (7i) the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS do not and will not conflict with, violate, or result in a any breach of, the terms, conditions of any terms or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the Trust, any law or regulation applicable to the Trust, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking instrument to which the Trust is a party or by which it is bound, (ii) violate any law, statute, ordinance, writ, judgment, injunction, rule, regulation, order or decree of any Governmental Entity applicable to the Trust or by which any of its properties or assets may be bound or (iii) except as may be required by the Trust Agreement, require any filing with, or permit, consent or approval of, or the giving of any notice to, any Governmental Entity other than the Requisite Regulatory Approvals; (d) as of the date of this Agreement, there is no suit, action, investigation or proceeding pending or, to the knowledge of the Trust, threatened against or affecting the Trust before or by any Governmental Entity that could reasonably be expected to materially impair the ability of the Trust to perform its obligations under this Agreement on a timely basis; (e) this Agreement and the transactions contemplated hereby have been authorized by all necessary action on the part of the Trust on or prior to the date hereof and no other proceedings on the part of the Trust are necessary to authorize this Agreement and the transactions contemplated hereby; and (8) no taxes are payable upon f) the Trust (i) holds all right, title and interest in and to the Shares, free and clear of any and all liens, charges, security interests, pledges, options, rights of first refusal, limitations on voting rights, restrictions, charges, proxies and other encumbrances whatsoever ("Liens"), except as set forth in the Trust Agreement, (ii) has not appointed or in granted any proxy, which appointment or grant is still effective, with respect to any of the execution of this Agreement or will be payable Shares, and (iii) upon or in respect delivery of the issuance Purchased Shares to Buyer against payment of the shares Purchase Price therefor, Buyer will acquire good and valid title to the Purchased Shares, free and clear of each series of APSany and all Liens.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Paying Agent that: (1a) the Trust is duly organized and is a validly existing as a business trust in good standing under the laws of The Commonwealth the State of Massachusetts, Delaware and has the Trustees have full power under the Trust Agreement to execute and deliver this Agreement and to authorize, create and issue the shares of APSEquity Trust Securities; (2) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3b) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation agreement of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4c) the forms form of the certificates certificate evidencing the shares of each series of APS comply Equity Trust Securities complies with all applicable laws of The Commonwealth the State of MassachusettsDelaware and the State of New York; (5d) the shares of each series of APS Equity Trust Securities have been duly and validly authorized authorized, executed and delivered by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be are validly issued, fully paid and nonassessable; (6e) at the time of the offering of the shares of each series of APS, the shares offered will be Equity Trust Securities have been registered under the Securities Act of 1933, as amendedthe Trust has been registered under the Investment Company Act, and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been takenEquity Trust Securities; (7f) the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS Equity Trust Securities do not and will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the TrustAgreement, any law or regulation applicable to the Trustregulation, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is bound; and (8) g) no taxes are payable upon or in respect of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APSEquity Trust Securities.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Agent that: (1a) the Trust is duly lawfully organized and is validly existing as a business trust in good standing under the laws of The Commonwealth the State of Massachusetts, Delaware and has full power to execute it does and deliver this Agreement and to authorize, create and issue will comply in all material respects with applicable provisions of the shares of APS1940 Act; (2b) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3) Shares sold pursuant to this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4) the forms of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities 1933 Act of 1933, as amendedand duly authorized for issuance in accordance with applicable law, and no further action by or before any governmental body or authority of the United States or of any state thereof Trust is required in connection with and will remain registered as an open-end, management investment company under the execution 1940 Act for as long as such Shares are sold and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been takenremain outstanding ; (7c) it will amend the registration statement for the Trust’s Shares under the 1933 Act and the 1940 Act from time to time as required in order to effect the continuous offering of its Shares; (d) it will register and qualify the Trust’s Shares for sale in accordance with the laws of the various states only if and to the extent deemed advisable by the Trust; (e) each Fund is currently qualified as a regulated investment company under Subchapter M of the Code and will make every effort to maintain such qualification. Each Fund shall promptly notify Jefferson National upon having a reasonable basis for believing that it has ceased to so qualify, or that it may not qualify as such in the future; (f) each Fund currently complies with the diversification requirements of Section 817(h) of the Code and Section 1.817-5(b) of the Federal Tax Regulations, if required, and each Fund will make every effort to maintain compliance with such diversification requirements, unless such Fund is otherwise exempt from Section 817(h) and/or except as otherwise disclosed in such Fund’s prospectus. In the event that a Fund ceases to comply with Section 817(h), the Trust shall promptly notify Jefferson National and it shall make every effort to remedy such failure to comply within the time frame set forth by Section 817(h); (g) the execution Funds have policies and delivery of this Agreement procedures designed to deter Market Timing, as are disclosed in each Fund’s prospectus, and the issuance such policies will be uniformly and delivery of the shares of each series of APS do not and will not conflict with, violate, or result consistently applied to all Contract Owners unless otherwise disclosed in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the Trust, any law or regulation applicable to the Trust, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is boundsuch Fund’s prospectus; and (8) no taxes are payable upon h) the Trust agrees to use its best efforts to comply with any applicable state insurance laws or in respect regulations as they may apply to the investment objectives, policies and restrictions of the execution Funds, to the extent specifically requested in writing by Jefferson National and to the extent that compliance with such laws will not materially interfere with the Trust’s daily operations and investment activities. If the Trust cannot reasonably comply with such state insurance laws or regulations, it will so notify Jefferson National in writing. The Trust makes no other representation as to whether any aspect of the Trust’s operations (including, but not limited to, fees and expenses, and investment policies) complies with the insurance laws or regulations of any state. The Trust agrees that it will furnish the information reasonably required by state insurance laws to assist Jefferson National in obtaining the authority needed to issue the Contracts in various states. The foregoing representations and warranties will be true and correct at all times during the term of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APSAgreement.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Agent that: (1i) the Trust is a duly organized and is validly existing as a business trust in good standing under the laws of The Commonwealth of Massachusetts, and has full power to execute and deliver this Agreement and to authorize, create and issue the shares of APSAMPS; (2ii) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3iii) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4iv) the forms of the certificates evidencing the shares of each series of APS AMPS comply with all applicable laws of The Commonwealth of Massachusetts; (5v) the shares of each series of APS AMPS have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS AMPS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6vi) at the time of the offering of the shares of each series of APSAMPS, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APSAMPS, except such action as required by applicable state securities or insurance laws, all of which action will have been taken; (7vii) the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS AMPS do not and will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust Trust, Certificate of Designation or the Amended By-Laws of the Trust, any law or regulation applicable to the Trust, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is bound; and (8) viii) no taxes are payable upon or in respect of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APSAMPS.

Representations and Warranties of the Trust. The Trust the Seller and Onyx. (a) Each of [the Trust], the Seller and Onyx, jointly and severally, represents and warrants to to, and agrees with, each of the Auction Agent Underwriters named in Schedule I hereto (the "Underwriters") that: (1i) A registration statement on Form S-3 (No. 333-_____), including a form of prospectus, relating to the Trust is duly organized and is validly existing as a business trust in good standing under the laws of The Commonwealth of Massachusetts, and Securities has full power to execute and deliver this Agreement and to authorize, create and issue the shares of APS; (2) the Trust is registered been filed with the Securities and Exchange Commission under (the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; "Commission") and either (3A) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4) the forms of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered declared effective under the Securities Act of 1933, as amendedamended (the "Act"), and no further action is not proposed to be amended or (B) is proposed to be amended by amendment or before post-effective amendment. If such registration statement (the "initial registration statement") has been declared effective, either (i) any governmental body additional registration statement (the "additional registration statement") relating to the Securities has been filed with the Commission pursuant to Rule 462(b) ("Rule 462(b)") under the Act and declared effective upon filing pursuant to Rule 462(b) and the Securities have been duly registered under the Act pursuant to the initial registration statement and such additional registration statement or authority of (ii) any such additional registration statement proposed to be filed with the United States Commission pursuant to Rule 462(b) will become effective upon filing pursuant to Rule 462(b) and upon such filing the Securities will have been duly registered under the Act pursuant to the initial registration statement and such additional registration statement. If the Seller does not propose to amend the initial registration statement, any such additional registration statement or of any state thereof is required in connection post-effective amendment to either such registration statement filed with the Commission prior to the execution and delivery of this Agreement Agreement, then the most recent amendment (if any) to each such registration statement has been declared effective by the Commission or will be required in connection with has become effective upon filing pursuant to Rule 462(c) under the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been taken; Act (7"Rule 462(c)") the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS do not and will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the Trust, any law or regulation applicable to the Trust, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is bound; and (8) no taxes are payable upon or in respect of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APSRule 462(b).

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Agent that: (1) the Trust is duly organized and is validly existing as a business trust in good standing under the laws of The Commonwealth of Massachusetts, and has full power to execute and deliver this Agreement and to authorize, create and issue the shares of each series of APS; (2) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4) the forms of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefortherefore, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been taken; (7) the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS do not and will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the Trust, any law or regulation applicable to the Trust, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is bound; and (8) no taxes are payable upon or in respect of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APS.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Agent Agents that: (1a) each of this Agreement, the Trust is duly organized Note Indenture, the Note Indenture Supplement and is validly existing as a business trust in good standing under the laws of The Commonwealth of Massachusetts, and has full power to execute and deliver this Agreement and to authorize, create and issue the shares of APS; (2) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3) this Agreement Guarantee has been duly and validly authorized, executed and delivered by the Trust and/or Kimco, as the case may be, and constitutes is, or will be on the Closing Date, a legal, valid and binding obligation contract of the TrustTrust and/or Kimco, as the case may be, enforceable against the Trust each in accordance with its terms, subject as to such the general qualifications that enforceability to may be limited by bankruptcy, insolvency, reorganization and insolvency or other laws of general applicability relating to or affecting creditors' ’ rights generally and to general that equitable principlesremedies, including the remedies of specific performance and injunctive relief, are available only in the discretion of the applicable court; (4b) the forms Trust is a trust that has been duly settled under the laws of New York and has not been terminated or revoked and the trustee of the certificates evidencing Trust has the shares power and capacity to execute and deliver this Agreement, the Note Indenture and the Notes, and to observe and perform its covenants and obligations thereunder, in each case as trustee of each series the Trust, and the completion of APS comply with all applicable laws the transactions contemplated therein have been duly approved by the trustee of The Commonwealth of Massachusettsthe Trust; (5c) the shares assets of each series of APS have been duly and validly authorized by the Trust andare held solely for the benefit of KRC North Holdings III, upon completion Inc., an indirect subsidiary of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessableKimco; (6d) at Kimco is a valid and subsisting company, has or had, as the time of the offering of the shares of each series of APScase may be, the shares offered will be registered under necessary corporate power and authority to execute and deliver the Securities Act of 1933, as amendedIndenture and the Guarantee, and no further to observe and perform its covenants and obligations thereunder and has taken all necessary corporate action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been takenrespect thereof; (7e) the execution and delivery of, and the performance of and compliance with the terms of this Agreement Agreement, the Note Indenture, the Note Indenture Supplement, the Guarantee and the issuance and delivery of Notes by the shares of each series of APS Trust do not and will not conflict with, violate, or result in a any breach of, the terms, conditions or provisions of, or constitute a default under, and do not and will not create a state of facts which, after notice or lapse of time or both, would result in a breach of or constitute a default under, any term or provision of the Declaration governing documents of the Trust; (f) the execution and delivery of, and the performance of and compliance with the terms of the Note Indenture and the Guarantee by Kimco do not and will not result in any breach of, or constitute a default under, and do not and will not create a state of facts which, after notice or lapse of time or both, would result in a breach of or constitute a default under, any term or provision of its articles, by-laws or resolutions of the board of directors of Kimco; (g) the Trust is in compliance with all covenants under, and no default on the part of the Trust exists under, any indenture, agreement or instrument by which the Trust is bound, except to the extent that all instances of such non-compliance therewith or default thereunder would not in the aggregate have a Material Adverse Effect on the Trust; (h) the Notes, the Note Indenture and the Note Indenture Supplement conform in all material respects to the respective statements relating thereto contained in the Term Sheet; (i) the Distribution of the Notes to the Purchasers at the Closing Time will be exempt from the registration and prospectus requirements under applicable Securities Laws, and no prospectus or other document will be required to be filed, any proceeding taken or any approval, permit, consent or authorization obtained under the Securities Laws to permit any such Distribution; however, the Trust will be required to file within the prescribed time periods for doing so, any required reports of such Distributions and the payment by the Trust of applicable fees related thereto as well as the Investor Presentation; (j) the Trustee has been duly appointed as trustee under the Note Indenture and as registrar and transfer agent for the Notes at its principal transfer office in the City of Toronto; (k) the form of the certificates representing the Notes have been duly approved by the Trust and comply with the provisions of the laws of the State of New York and will not conflict with the Note Indenture; (l) the Offering has not been accompanied by an advertisement by the Trust or Kimco, and no selling or promotional expenses have been paid or incurred by the Amended By-Laws Trust or Kimco in connection with the Offering except for professional services or for services performed by a registered dealer; and (m) to the knowledge of the Trust, any law there are no legal or regulation applicable to administrative actions or proceedings pending in the Trust, any order Provinces of Québec or decree of any court Ontario or public authority having jurisdiction over in the Trust, or any mortgage, indenture, contract, agreement or undertaking United States to which the Trust or Kimco is a party party, that seek to restrain, enjoin or otherwise challenge the transactions contemplated by which it is bound; and (8) this Agreement and no taxes are payable upon or in respect regulatory authority of any of the execution of this Agreement Provinces in Canada into which the Notes are being sold has issued any order preventing or will be payable upon or in respect suspending the use of the issuance Investor Presentation or the offering or the sale of the shares of each series of APSNotes.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Agent Jersey Subsidiary as of the date hereof, as of the Exchange Date and as of the Closing Date, that: (1) the 4.1 The Trust is duly organized and is a validly existing as a business trust in good standing under the laws of The Commonwealth of Massachusetts, Delaware Act and has full power and authority to execute and deliver this Agreement and to authorizeperform and observe the provisions hereof, create except as performance may be limited by bankruptcy, insolvency, reorganization, moratorium, or other similar laws now or hereafter in effect relating to creditors' rights, and issue general principles of equity (regardless of whether the shares enforceability of APSsuch performance is considered in a proceeding in equity or at law); (2) 4.2 The execution, delivery and performance of this Agreement by the Trust is registered with do not contravene any requirement of law or any material transactional restriction or material agreement binding on or affecting the Securities and Exchange Commission under the Investment Company Act Trust or any of 1940, as amended, as a closed-end, non-diversified, management investment companyits assets; (3) this 4.3 This Agreement has been duly and validly authorized, properly executed and delivered by the Trust and constitutes the a legal, valid and binding obligation agreement of the Trust, Trust enforceable against the Trust in accordance with its terms, subject except as to such enforceability to the enforcement of rights and remedies may be limited by bankruptcy, insolvency, reorganization and reorganization, moratorium, or other similar laws of general applicability now or hereafter in effect relating to or affecting creditors' rights rights, and to general equitable principlesprinciples of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); (4) 4.4 No declaration or filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the forms of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS have been duly and validly authorized execution, delivery or performance by the Trust and, upon completion of this Agreement or the consummation by the Trust of the initial sale of the shares of transactions contemplated herein and therein, except such series of APS and receipt of payment therefor, will as have been already obtained or as may be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered required under the Securities Act of 1933, as amended, or the rules and no further action by regulations promulgated thereunder or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all ; and 4.5 It is understood that the Subject ADRs evidencing the ADSs may bear either or both of which action will have been taken;the following legends: (7a) the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS do not and will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the Trust, any law or regulation applicable to the Trust, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or Any legend required by which it is boundDTC; and (8) no taxes are payable upon or in respect b) Any legend required by the laws of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APSany other applicable jurisdiction.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Agent BISYS that: (1a) the It is a Trust is duly organized incorporated and is validly existing as a business trust in good standing under the laws of The Commonwealth the jurisdiction of Massachusettsits formation (Delaware), and has full power capacity and authority to execute and deliver enter into this Agreement agreement and to authorize, create and issue the shares of APScarry out its obligations hereunder; (2b) the Trust is registered with the Securities It has all necessary authorizations, licenses and Exchange Commission under the Investment Company Act of 1940, permits to carry out its business as amended, as a closed-end, non-diversified, management investment companycurrently conducted; (3c) this It is in compliance in all material respects with all laws and regulations applicable to its business and operations; (d) This Agreement has been duly and validly authorizedauthorized by the Trust and, when executed and delivered by the Trust and constitutes the Trust, will constitute a legal, valid and binding obligation of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization reorganization, moratorium and other laws of general applicability relating to or application affecting creditors' rights the right and to general equitable principlesremedies of creditors and secured parties; (4e) the forms By virtue of the certificates evidencing the Declaration of Trust, shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS have been duly and validly authorized Fund which are redeemed by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will may be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action resold by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been taken; (7) the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS do not and will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the Trust, any law or regulation applicable to the Trust, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is bound; and (8) no taxes are payable upon or in respect i) The Trust has adopted a written anti-money laundering program, which has been provided to BISYS pursuant to Section 19 (the "AML Program"), and has appointed an officer of the execution of this Agreement or will be payable upon or in respect Trust as the Trust's anti-money laundering compliance officer ("AML Compliance Officer"), (ii) the AML Program and the designation of the issuance AML Officer have been approved by the Board, (iii) the delegation of certain services thereunder to BISYS, as provided in Section 23, has been approved by the shares of each series of APSBoard, and (iv) the Trust will submit any material amendments to the AML Program to BISYS for BISYS' review and consent prior to adoption, in accordance with Section 21.

Representations and Warranties of the Trust. The Trust hereby represents and warrants to CMFS, which representations and warranties shall be deemed to be continuing throughout the Auction Agent term of this Agreement, that: (1a) the Trust it is a statutory Trust, duly organized and is validly existing as a business trust in good standing under the laws of The Commonwealth the jurisdiction of Massachusettsits organization, and has with full power to execute and deliver carry on its business as now conducted, to enter into this Agreement and to authorize, create and issue the shares of APSperform its obligations hereunder; (2b) as of the date of this Agreement, the Trust operates as a private investment company pursuant to exemptions from registration provided under the under the 1940 Act and 1933 Act (c) the Trust is registered has filed a Registration Statement on Form N-2 with the Securities and Exchange Commission SEC to operate as a registered closed-end fund under the Investment Company Act 1940 and to registered shares of 1940, as amended, as a closed-end, non-diversified, management investment companybeneficial interest of the Fund (“Shares”) under the 1933 Act; (3d) this Agreement has been duly and validly authorized, executed and delivered by the Trust in accordance with all requisite action and constitutes the legal, a valid and legally binding obligation of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization reorganization, moratorium and other laws of general applicability relating to or application affecting creditors' the rights and to general equitable principlesremedies of creditors and secured parties; (4e) the forms of the certificates evidencing the shares of each series of APS comply Trust is conducting its business in compliance in all material respects with all applicable laws and regulations, both state and federal, and has obtained all regulatory approvals necessary to carry on its business as now conducted; there is no statute, rule, regulation, order or judgment binding on it and no provision of The Commonwealth its charter, bylaws or any contract binding it or affecting its property which would prohibit its execution or performance of Massachusettsthis Agreement; (5f) the shares its entrance into this agreement shall not cause a material breach or be in material conflict with any other agreement or obligation of each series of APS have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been taken; (7) the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS do not and will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the Trust, any law or regulation applicable to it; (g) as of close of business on the Trustdate of this agreement, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is bound; and (8) no taxes are payable upon or in respect authorized to issue unlimited number of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APSShares.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Transfer Agent thatas follows: (1a) the Trust It is a statutory trust duly organized organized, validly existing, and is validly existing as a business trust in good standing under the laws of The Commonwealth the State of Massachusetts, and has full power to execute and deliver this Agreement and to authorize, create and issue the shares of APSDelaware; (2b) the Trust It is an open-end investment management company registered with the Securities and Exchange Commission SEC under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company1940 Act; (3c) It is authorized to issue an unlimited number of Shares; (d) It is empowered under applicable laws and governing instruments to enter into and perform this Agreement; (e) The execution, delivery, and performance of this Agreement by the Trust has been duly and validly authorizedauthorized by all necessary action, executed and delivered by the Trust and constitutes the a legal, valid valid, and binding obligation of the Trust, Trust enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4) will not require the forms of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action by or before any governmental body or authority of the United States or consent of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APSthird party that has not been given, except such action as required by applicable state securities laws, all of which action will have been taken; (7) the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS do not and will not violate, conflict with, violate, or result in a the breach ofof any material term, the terms, conditions or provisions ofcondition, or constitute a default underprovision of (i) any existing law, the Declaration of Trust ordinance, or the Amended By-Laws of the Trust, any law governmental rule or regulation to which the Trust is subject, (ii) any judgment, order, writ, injunction, decree, or award of any court, arbitrator or governmental or regulatory official, body, or authority applicable to the Trust, any order or decree of any court or public authority having jurisdiction over (iii) the Trust’s certificate of trust or governing instruments, or and (iv) any mortgage, indenture, contract, material agreement or undertaking to which the Trust is a party or by which it is boundparty; and (8) no taxes f) It further represents and warrants that (i) its use of the Services and the Tokenization Platform complies and will comply with all applicable laws, (ii) it shall make any and all registrations, filings and pay any and all fees required by applicable laws in connection with any offering or the secondary trading of the Shares, (iii) any Shares issued and outstanding on the date hereof have been duly authorized, validly issued and are fully paid and are non-assessable; and any Shares to be issued hereafter, when issued, shall have been duly authorized, validly issued and fully paid and will be non- assessable, (iv) any Shares issued and outstanding on the date hereof have been duly registered under the 1933 Act, and such registration has become effective, or are exempt from such registration; and shall have been duly registered under the 1934 Act, or are exempt from such registration, (v) any Shares to be issued hereafter, when issued, shall have been duly registered under the 1933 Act, and such registration shall have become effective, or shall be exempt from such registration; and shall have been duly registered under the 1934 Act, or shall be exempt from such registration, and (vi) the Trust has paid or caused to be paid all taxes, if any, that were payable upon or in respect of the execution of this Agreement or will be payable upon or in respect of the original issuance of the shares Shares issued and outstanding on the date hereof. The Trust will notify the Transfer Agent promptly if any of each series of APSthe representations and warranties above cease to be true.

Representations and Warranties of the Trust. The POT and the Administrator (a) Each delivery of the Prospectuses pursuant to Section 5 above shall constitute a joint and several representation and warranty to the Underwriters by each of the Trust, POT and the Administrator (and each of the Trust, POT and the Administrator hereby acknowledges that each of the Underwriters is relying on such representations and warranties in entering into this agreement) that: (i) all material information and statements (other than any information or statement relating solely to the Underwriters and furnished to the Trust by the Underwriters expressly for inclusion in the Preliminary Prospectus or the Prospectus) contained in the Preliminary Prospectus, the Prospectus or any Supplementary Material, as applicable, including, without limitation, the documents incorporated by reference therein: (A) are at the respective dates of such documents, true and correct in all material respects; (B) contain no misrepresentation; and (C) constitute full, true and plain disclosure of all material facts relating to the Trust, POT, the Administrator and the Firm Debentures; (ii) the Preliminary Prospectus, the Prospectus, or any Supplementary Material, as applicable, including, without limitation, the documents incorporated by reference therein, complies in all material respects with the Applicable Securities Laws, including without limitation National Instrument 44-101 and the simplified prospectus rules of the Securities Act (Quebec); and (iii) except as is disclosed in the Public Record, there has been no intervening material change (actual, proposed or prospective, whether financial or otherwise), from the date of the Preliminary Prospectus, the Prospectus or any Supplementary Material to the time of delivery thereof, in the business, operations, capital, properties, assets, liabilities (absolute, accrued, contingent or otherwise), condition (financial or otherwise) or results of operations, or ownership of the Trust, POT or the Administrator. (b) In addition to the representations and warranties contained in Section 9(a) hereof, each of the Trust, POT and the Administrator jointly and severally represents and warrants to the Auction Agent Underwriters, and acknowledges that each of the Underwriters is relying upon such representations and warranties in entering into this agreement, that: (1i) the Trust is has been duly created and organized and is validly existing a valid and subsisting trust under the laws of the Province of Alberta and has all requisite trust authority and power to carry on its business as described in the Prospectuses including, without limitation, to perform its obligations under the Material Agreements to which it is a party, the POT Royalty Agreement and the agreements governing the Credit Facilities and to own and administer its properties and assets including, without limitation, the Trust Assets; (ii) POT has been duly created and organized and is a valid and subsisting trust under the laws of the Province of Alberta and as all requisite trust authority and power to carry on its business trust as described in the Prospectuses including, without limitation, to perform its obligations under the Material Agreements to which it is a party, the POT Royalty Agreement and the agreements governing the Credit Facilities and to own and administer its properties and assets; (iii) the Administrator has been duly incorporated and is valid and subsisting in good standing under the laws of The Commonwealth its jurisdiction of Massachusetts, incorporation and has full all requisite authority and power to execute and deliver this Agreement carry on its business as described in the Prospectuses and to authorizeown, create lease and issue operate its properties and assets as described in the shares of APSProspectuses including, without limitation, to perform its obligations under the Material Agreements to which it is a party; (2iv) the Trust is registered with qualified to carry on its activities including, without limitation, owning the Securities and Exchange Commission under the Investment Company Act of 1940Trust Assets, as amended, as a closed-end, non-diversified, management investment companyin each jurisdiction where it carries on such activities; (3v) this Agreement has been duly each of POT and the Administrator is qualified to carry on business, including, without limitation, owning the assets described in the Prospectuses and the Documents, and is validly authorizedsubsisting under the laws of each jurisdiction in which it carries on its business; (vi) except as disclosed in the Prospectuses, executed and delivered by the Trust and constitutes the legal, valid and binding obligation of neither the Trust, enforceable against POT nor the Administrator has any material subsidiaries, and aside from the foregoing neither the Trust, POT nor the Administrator is “affiliated” with or a “holding corporation” of any body corporate (within the meaning of those terms in the ABCA) that is material to the operations of the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principleson a consolidated basis; (4vii) the forms of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been taken; (7) the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS do not and will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the Trust, any law or regulation applicable to the Trust, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or “unit trust” and a “mutual fund trust” under the Tax Act and the Trust shall at all times conduct its affairs so as to continue to qualify as a “unit trust” and a “mutual fund trust”, including by limiting its activities to investing the property of the Trust in the assets described in the Prospectuses and the Documents and other property in which it a “mutual fund trust” is bound; andpermitted by the Tax Act to invest, and will not carry on any other business; (8) viii) all of the issued and outstanding shares in the capital of the Administrator are fully paid and non-assessable and legally (in registered form by the Trustee, on behalf of the Trust) and beneficially owned by the Trust free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands whatsoever (except for security, pledges and similar instruments granted by the Trust to its lenders) and no taxes are payable upon person holds any securities convertible into or exchangeable for issued or unissued shares of the Administrator or has any agreement, warrant, option, right or privilege (whether pre-emptive or contractual) being or capable of becoming an agreement, warrant, option or right for the acquisition of any unissued or issued securities of the Administrator; (ix) all of the beneficial interest in POT is held by the Administrator, as the trustee of POT, for the benefit of and on behalf of the Trust and POT has no other debt or equity securities outstanding other than certain debt instruments owing to the Trust; (x) no person has any agreement or option or right or privilege capable of becoming an agreement for the purchase, subscription or issuance of any unissued Trust Units or other securities of either the Trust or POT, other than: 1. in respect of Trust Units issuable on the execution conversion of this Agreement or will be payable upon or the 8% Debentures and the Second Debentures; 2. in respect of the issuance incentive rights or bonus rights to acquire Trust Units issued to directors, officers, employees and other service providers of the shares Administrator pursuant to the Trust Unit Incentive Plan of each series the Trust and the Bonus Rights Plan, respectively; and 3. pursuant to the Distribution Reinvestment and Optional Trust Unit Purchase Plan of APS.the Trust; (xi) the Trust has not issued, and will not issue during the period of distribution of the Firm Debentures unless TSX and Unitholder approval is obtained in the manner contemplated by policies of the TSX, any Trust Units on the exercise of bonus rights issued pursuant to the Bonus Rights Plan;

Representations and Warranties of the Trust. The Trust hereby represents and warrants to the Auction Agent thatas follows: (1a) Immediately prior to the execution of this Agreement, the Trust is (i) was a Delaware statutory trust duly organized and is formed, validly existing as a business trust and in good standing under the laws of the State of Delaware; (ii) was duly qualified to conduct business and is in good standing in each other jurisdiction where its ownership or lease of property or the conduct of its business requires such qualification; (iii) was in compliance with the Trust Agreement; and (iv) had the power and authority to enter into and perform its obligations under this Agreement. (b) The Commonwealth execution, delivery and performance by the Trust of Massachusettsthis Agreement: (i) are within its power as a Delaware statutory trust; (ii) have been duly authorized by all necessary or proper action; (iii) do not contravene any provision of the Trust Agreement or its other organizational documents; (iv) do not violate any law or regulation, or any order or decree of any court or Governmental Authority of the State of Delaware or the federal government of the United States governing the banking and trust power of Wilmington; (v) do not conflict with or result in the breach or termination of, constitute a default under or accelerate or permit the acceleration of any performance required by, any indenture, mortgage, deed of trust, lease, agreement or other instrument to which it is a party or by which it or any of its property is bound; (vi) do not result in the creation or imposition of any Adverse Claim upon any of the property of any Person, and has full power to execute and deliver this Agreement and to authorize, create and issue (vii) do not require the shares consent or approval of APS;any Governmental Authority or any other Person. (2c) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3) this The Agreement has been duly and validly authorized, executed and delivered by the Trust and and, constitutes the legal, valid and binding obligation of the Trust, enforceable against the he Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles;. (4d) the forms of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the Upon execution and delivery of this Agreement or will be required in connection with Agreement, the issuance of the shares of APS, except such action as required by applicable state securities laws, Trust shall have transferred to MLFC all of which action will have been taken; (7) its obligations and liabilities as Borrower under the execution Original Funding Agreement, and delivery of this Agreement MLFC shall be fully obligated and bound as borrower under the issuance and delivery of the shares of each series of APS do not and will not conflict withOriginal Funding Agreement, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or as amended by the Amended By-Laws of the Trust, any law or regulation applicable to the Trust, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is bound; and (8) no taxes are payable upon or in respect of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APSand Restated Funding Agreement.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Paying Agent that: (1a) the Trust is duly organized and is a validly existing as a business trust in good standing under the laws of The Commonwealth the State of Massachusetts, New York and has the Trustees have full power under the Trust Agreement to execute and deliver this Agreement on behalf of the Trust and to authorize, create and issue the shares of APSSecurities; (2) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3b) this Agreement has been duly and validly authorized, executed and delivered by the Trustees on behalf of the Trust and constitutes the legal, valid and binding obligation agreement of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4c) the forms form of the certificates certificate evidencing the shares of each series of APS comply Securities complies with all applicable laws of The Commonwealth the State of MassachusettsNew York; (5d) the shares of each series of APS Securities have been duly and validly authorized authorized, executed and delivered by the Trust and, upon completion of and are validly issued; (e) the initial offer and sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be Securities has been registered under the Securities Act of 1933, as amended, 1933 and the Trust has been registered under the Investment Company Act and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been takenSecurities; (7f) the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS Securities do not and will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the TrustAgreement, any law or regulation applicable to the Trustregulation, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is bound; and (8) g) no taxes are payable upon or in respect of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APSSecurities.

Representations and Warranties of the Trust. The Trust represents and warrants to and agrees with the Auction Agent Agents that: (1a) the Trust is duly organized and is validly existing has been constituted as a business trust in good standing under the laws of The Commonwealth the Province of Massachusetts, and has full power to execute and deliver this Agreement and to authorize, create and issue the shares of APSOntario; (2b) the Trust has all requisite power and authority to enter into, deliver and perform its obligations under this Agency Agreement, the Transaction Documents to which the Trust is registered with or on the Securities Closing Date will be a party and Exchange Commission under the Investment Company Act Notes and all necessary action has been or will be taken on or before the Closing Date to authorize the execution, delivery and performance of 1940this Agency Agreement, as amendedthe Transaction Documents to which the Trust is or on the Closing Date will be a party and the Notes, as a closed-endin each case, non-diversified, management investment companyby the Trust; (3c) assuming the due authorization, execution and delivery of this Agency Agreement by the parties hereto other than the Trust, and the enforceability of this Agency Agreement against such parties, this Agency Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the a legal, valid and binding obligation of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to applicable bankruptcy, insolvency, reorganization winding-up, moratorium or reorganization, or other similar laws affecting creditors’ rights generally and to the availability of equitable remedies; (d) the delivery to the Agents of the documents referred to in Section 3(a)(i), Section 3(a)(ii), Section 3(a)(iii) and Section 3(a)(iv) hereof shall constitute the representation and warranty of the Trust to the Agents that: (i) each such document at the time of its respective delivery complied in all material respects with the requirements of the Applicable Securities Laws pursuant to which it was or is prepared and, as applicable, filed and that all the information and statements (other than information or statements that pertain to and/or have been provided by the Agents) contained or incorporated by reference therein were at the respective dates of delivery thereof, true and correct in all material respects, contained no misrepresentation and (in the case of the Preliminary Prospectus, the Shelf Prospectus and any Prospectus Amendment) constituted full, true and plain disclosure of all material facts relating to the Trust and the Notes as required by Applicable Securities Laws; and (ii) no material fact had been omitted (except for omissions in respect of facts relating to the Agents) from such disclosure which was required to be stated in such disclosure or was necessary to make the statements or information contained in such disclosure not misleading in light of the circumstances under which they were made; (e) the Notes issued under the Indenture, and any Notes to be issued, are when executed, duly executed and duly authorized by the Trust and when delivered and paid for by a purchaser in accordance with the terms of the Prospectus and the Indenture, will be valid and legally binding obligations of the Trust, enforceable in accordance with their terms except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws of general applicability relating to or affecting creditors' ’ rights generally, and to general the availability of equitable principlesremedies; (4) the forms of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been taken; (7f) the execution and delivery of this Agreement by the Trust of, and the issuance and delivery performance by the Trust of its obligations under, the shares of each series of APS do not and Transaction Documents will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, any violation of the Declaration of Trust or any material violation of any agreement or other instrument binding upon the Amended By-Laws Trust or any of the Trustits assets or undertakings, will not result in any law material violation of any statute or any order, rule or regulation applicable to the Trust, any order or decree of any governmental body, agency or court or public authority having jurisdiction over the TrustTrust or of any law applicable to the Trust or any of its assets or undertakings; (g) no consent, approval, authorization or order of, or qualification with, any mortgagegovernmental body or agency having jurisdiction over the Trust is required for the performance by the Trust of its obligations under any Transaction Document; (h) there are no legal or governmental proceedings ongoing or, indentureto the Trust’s knowledge, contractpending or threatened, agreement to which the Trust or undertaking any of its affiliates or subsidiaries is a party or to which any of the property of the Trust is subject, which could have a material adverse effect on the execution, delivery or performance of the Transaction Documents; (i) the Transaction Documents to which the Trust is or on the Closing Date will be a party, when executed and delivered by the Trust, as applicable, will be duly authorized by all necessary action and, assuming the due authorization, execution and delivery of the Transaction Documents to which the Trust is or on the Closing Date will be a party by the parties thereto other than the Trust, and the enforceability of such Transaction Documents against such parties, will constitute legal, valid and binding obligations of the Trust, enforceable against the Trust in accordance with their terms, subject to applicable bankruptcy, insolvency, winding-up, moratorium or by which it reorganization, or other similar laws affecting creditors’ rights generally and to the availability of equitable remedies; (j) the Trust is bounda reporting issuer not in default of any requirement under the Applicable Securities Laws; (k) there are no reports or information that in accordance with the Applicable Securities Laws or the requirements of the Canadian Securities Regulators must be made publicly available or filed in connection with the offering of the Notes that have not been or will be made publicly available or filed as required; and (8) no taxes are payable upon or in respect l) the representations and warranties of the execution of this Agreement Trust contained in the Transaction Documents to which the Trust is or on the Closing Date will be payable upon a party that are made or in respect to be made on or with effect as of the issuance Closing Date will be true and correct in all material respects on or as of the shares of each series of APSsuch date.

Representations and Warranties of the Trust. (a) The Trust represents and warrants as follows: A registration statement on Form S-3 (File No. 333-15245) with respect to the Auction Agent that:Shares has been prepared by the Trust in conformity with the requirements of the Securities Act of 1933, as amended (the "Act"), and the Rules and Regulations (the "Rules and Regulations") of the Securities and Exchange Commission (the "Commission") thereunder and has been filed with the Commission under the Act. The Trust has complied with the conditions for the use of Form S-3. Copies of such registration statement, including any amendments thereto, the preliminary prospectuses contained therein and the exhibits, financial statements and schedules, as finally amended and revised, have heretofore been delivered by the Trust to you. Such registration statement, herein referred to as the "Registration Statement," has been declared effective by the Commission under the Act and no post-effective amendment to the Registration Statement has been filed as of the date of this Agreement. The form of prospectus first filed by the Trust with the Commission pursuant to its Rule 424(b) is herein referred to as the "Prospectus." Each preliminary prospectus included in the Registration Statement prior to the time it becomes effective is herein referred to as a "Preliminary Prospectus." Any reference herein to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, as of the date of such Registration Statement, Preliminary Prospectus or Prospectus, as the case may be, and, in the case of any reference herein to any Prospectus, also shall be deemed to include any documents incorporated by reference therein, and any supplements or amendments relating to the Shares being issued and sold pursuant hereto, filed with the Commission after the date of filing of the Prospectus under Rules 424(b), and prior to the termination of the offering of the Shares by the Underwriters. (1b) the The Trust is has been duly organized formed and is validly existing as a business trust in good standing under the laws of The the Commonwealth of Massachusetts, with power and has full power authority to execute own or lease its properties and deliver this Agreement conduct its business as described in the Registration Statement. The Trust is duly qualified to transact business and is in good standing in all jurisdictions in which the conduct of its business requires such qualification, except to authorize, create and issue the shares of APS; (2) extent that the failure to be so qualified would not have a material adverse effect on the Trust is registered with and the Securities and Exchange Commission under the Investment Company Act of 1940Subsidiaries, as amended, taken as a closed-endwhole. Each of MGI Andover Street, non-diversifiedInc., management investment company; (3) this Agreement MGI 234 Ballardvale Street, Inc., MGI Beachwood Properties Corp., MGI 321 Xxxxxxxxx Xxxx, Xxx., MGI Crosby Drive, Inc., MGI Chelmsford Corp., XXX Xxxxxxx Xxxxet, Inc., MGX Xxxx Federal Street, Inc., MGI 8 Forge Park, Inc., MGI 9 Forge Park, Inc., MGI 100 Griffin Brook Drive, Inc., MGI 300 Griffin Brook Drive, Inc., MGI Xxxxxxxx Xxx., XXX Xxx Park West, Ixx., XXX Xxxxx Xxxx Xxxx., MGI 25 Porter Road, Inc., MXX Xxx Xxxxxxxx Xxxxxx, Inc., MGI Two Portland Square, Inc., Option Parcel, Inc., MGI Research Drive Corp., MGI Rider Trail Corp., MGI Riverside Drive, Inc., MGI One Tech Andover Corp., MGI Two Federal Street, Inc., MGI West Port, Inc., MGI 450 Whitney Avenue, Inc., MGI Winthrop Associates, Inc., MGI Ten Winthxxx Xxxxxx, Xxx., Lumberland Corp., and MGI Harvard Street Corp. has been duly organized and is validly authorized, executed existing as a corporation in good standing under the laws of the jurisdiction of their incorporation with corporate power and delivered by authority to own or lease their respective properties and conduct their respective businesses as described in the Trust and constitutes Registration Statement. Each of the legal, valid and binding obligation foregoing subsidiaries of the Trust, enforceable against together with MGI Andover Corp., MGI Ballardvale Corp., MGI 33 Broad Street, MGI Forest Street Inc., MGI 15 Forge Park, Inc., MGI 000 Xxxxxx Xxxx., MGI Tech Center Corp., MGI Yorkshire Holdings, Inc. and Peabody Andover Corp. are hereafter referred to as the "Subsidiaries." Each of the Subsidiaries is duly qualified to transact business in all jurisdictions in which the conduct of its business requires such qualification, except to the extent that the failure to be so qualified would not have a material adverse effect on the Trust in accordance with its termsand the Subsidiaries, subject taken as to such enforceability to bankruptcy, insolvency, reorganization and other laws a whole. The outstanding shares of general applicability relating to or affecting creditors' rights and to general equitable principles; (4) the forms capital stock of each of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS Subsidiaries have been duly authorized and validly authorized issued, are fully paid and nonassessable and the outstanding shares of capital stock of each of the Subsidiaries are owned by the Trust andfree and clear of all liens, upon completion encumbrances and security interests, and no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligations into shares of capital stock of the initial sale Subsidiaries are outstanding. Except for the Trust's ownership of stock in its wholly owned subsidiaries, its 4% interest in a partnership owning property in Washington, D.C. and investments in securities as described in the Registration Statement, the Trust has no equity or other interest in, or right to acquire, an equity or other interest in, any corporation, partnership, trust or other entity. (c) The outstanding Common Shares of the shares of such series of APS Trust have been duly authorized and receipt of payment therefor, validly issued and are fully paid and non-assessable; the Shares to be issued and sold by the Trust have been duly authorized and when issued and paid for as contemplated herein will be validly issued, fully fully-paid and nonassessable;non-assessable; and no preemptive rights of shareholders exist with respect to any of the Shares or the issue and sale thereof. (6d) The Shares conform in all material respects with the statements concerning them in the Registration Statement. (e) The Commission has not issued an order preventing or suspending the use of any Prospectus or Preliminary Prospectus relating to the proposed offering of the Shares nor instituted proceedings for that purpose. The Registration Statement contains and the Prospectus and any amendments or supplements thereto will contain all statements which are required to be stated therein by, and in all material respects conform or will so conform, as the case may be, to the requirements of, the Act and the Rules and Regulations. The documents incorporated by reference in the Prospectus, at the time they were filed or will be filed with the Commission, in all material respects conformed or will conform at the time of filing, in all material respects to the offering requirements of the shares Securities Exchange Act of each series 1934, as amended (the "Exchange Act") or the Act, as applicable, and the Rules and Regulations of APSthe Commission thereunder. Neither the Registration Statement nor any amendment thereto, and neither the shares offered Prospectus nor any supplement thereto, including any documents incorporated by reference therein as of the Closing Date (as hereinafter defined), contains or will contain, as the case may be, any untrue statement of a material fact or omits or will omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Trust makes no representations or warranties as to information contained in or omitted from the Registration Statement or the Prospectus, or any such amendment or supplement, or any documents incorporated by reference therein, in reliance upon, and in conformity with, written information furnished to the Trust by or on behalf of any Underwriter, specifically for use in the preparation thereof. (f) The consolidated financial statements of the Trust and the Subsidiaries, together with related notes and schedules as set forth or incorporated by reference in the Registration Statement, present fairly in all material repsects the consolidated financial position and the results of operations of the Trust and the Subsidiaries at the indicated dates and for the indicated periods. The financial statements with respect to the properties acquired or to be acquired by the Trust, together with related notes and schedules as set forth or incorporated by reference in the Registration Statement, present fairly in all material respects the financial position and the results of operations of such properties at the indicated dates and for the indicated periods. Such financial statements have been prepared in all material respects in accordance with generally accepted principles of accounting, consistently applied throughout the periods involved, and all adjustments necessary for a fair presentation of results for such periods have been made. The summary financial and statistical data included or incorporated by reference in the Registration Statement presents fairly in all material respects the information shown therein and, to the extent based upon or derived from the consolidated financial statements, have been compiled on a basis consistent with the consolidated financial statements presented therein. (g) There is no action or proceeding pending or, to the knowledge of the Trust, threatened against the Trust before any court or administrative agency or by any regulatory authority which might result in any material adverse change in the business or condition of the Trust, except as set forth in the Registration Statement. (h) The Trust and the Subsidiaries have good and marketable title to all of the properties and assets reflected in the financial statements (or as described in the Registration Statement) hereinabove described, subject to no lien, mortgage, pledge, charge or encumbrance of any kind except those reflected in such financial statements (or as described in the Registration Statement) or which are not material in amount. (i) Each of the Trust and the Subsidiaries has filed all Federal, State and foreign income tax returns which have been required to be filed and have paid all taxes indicated by said returns and all assessments received by it to the extent that such taxes have become due and are not being contested in good faith. (j) Since the respective dates as of which information is given in the Registration Statement, as it may be amended or supplemented, there has not been any material adverse change or any development involving a prospective material adverse change in or affecting the condition, financial or otherwise, of the Trust or the earnings, business affairs, management, or business prospects of the Trust, whether or not occurring in the ordinary course of business, and there has not been any material transaction entered into by the Trust other than transactions in the ordinary course of business and changes and transactions contemplated by the Registration Statement, as it may be amended or supplemented. The Trust has no material contingent obligations which are not disclosed in the Registration Statement, as it may be amended or supplemented. (k) Neither the Trust nor any of the Subsidiaries is, nor with the giving of notice, lapse of time or both, will be registered in default under the Securities Act respective Declaration of 1933Trust, as amended of the Trust or Articles of Organization, as applicable, or the By-Laws, as amended, and no further action by or before any governmental body or authority of the United States Trust or the Subsidiaries, respectively, or any agreement, lease, contract, indenture or other instrument or obligation to which they are a party or by which they or any of their properties is bound and which default is, or after any required notice and passage of any state thereof is required applicable grace period would be, of material significance in connection with the execution and delivery of this Agreement or will be required in connection with the issuance respect of the shares business or financial condition of APS, except such action as required by applicable state securities laws, all the Trust. The consummation of which action will have been taken; (7) the execution and delivery of this Agreement transactions herein contemplated and the issuance and delivery fulfillment of the shares of each series of APS do not and terms hereof will not conflict with, violate, with or result in a breach of, of any of the terms, conditions terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust or other agreement or instrument to which the Trust or any Subsidiary is a party, or of the Declaration of Trust, as amended, or the By-Laws, as amended, of the Trust or to the Amended By-Laws best of the Trustits knowledge, any law order, rule or regulation applicable to the Trust, any order or decree Trust of any court or public authority of any regulatory body or administrative agency or other governmental body having jurisdiction over jurisdiction. (l) Each approval, consent, order, authorization, designation, declaration or filing by or with any regulatory, administrative or other governmental body necessary in connection with the Trust, or any mortgage, indenture, contract, agreement or undertaking to which execution and delivery by the Trust is a party or by which it is bound; and (8) no taxes are payable upon or in respect of the execution of this Agreement and the consummation of the transactions herein contemplated (except such additional steps as may be required by the National Association of Securities Dealers, Inc. (the "NASD") or which may be necessary to qualify the Shares for public offering by the Underwriters under State securities or Blue Sky laws) has been obtained or made and is in full force and effect. (m) The Trust and each of the Subsidiaries holds all material licenses, certificates and permits from governmental authorities which are necessary to the conduct of its business; and neither the Trust nor any Subsidiary has, to the best of its knowledge, infringed any patents, patent rights, trade names, trademarks or copyrights, which infringement is material to the business of the Trust. (n) To the Trust's knowledge, KPMG Peat Marwick LLP, who has certified certain of the financial statements filed with the Commission as part of, or incorporated by reference in, the Registration Statement, are independent public accountants as required by the Act and the Rules and Regulations. (o) The Trust is not now, and immediately after the sale of the Shares under this Agreement will not be, an "investment company" within the meaning of the Investment Company Act of 1940, as amended. (p) With respect to all tax periods regarding which the Internal Revenue Service is or will be payable upon or in respect entitled to assert any claim, the Trust has met the requirements for qualification as a real estate investment trust under Sections 856 through 860 of the issuance Internal Revenue Code, as amended (the "Code"), and the Trust's present and contemplated operations, assets and income continue to meet such requirements. (q) The Trust's Common Shares are listed on the New York Stock Exchange (the "NYSE"), and the Shares of the shares Trust to be sold under this Agreement have been approved for listing on the NYSE, upon official notice of each series of APSissuance.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Agent BISYS that: (1a) the Trust It is duly organized and is validly existing as a business trust in good standing duly incorporated and validly existing under the laws of The Commonwealth of MassachusettsDelaware, and has full power capacity and authority to execute and deliver enter into this Agreement and to authorize, create and issue the shares of APScarry out its obligations hereunder; (2b) the Trust is registered with the Securities It has all necessary authorizations, licenses and Exchange Commission under the Investment Company Act of 1940, permits to carry out its business as amended, as a closed-end, non-diversified, management investment companycurrently conducted; (3c) this It is in compliance in all material respects with all laws and regulations applicable to its business and operations; (d) This Agreement has been duly and validly authorizedauthorized by the Trust and, when executed and delivered by the Trust and constitutes the Trust, will constitute a legal, valid and binding obligation of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization reorganization, moratorium and other laws of general applicability relating to or application affecting creditors' rights the right and to general equitable principlesremedies of creditors and secured parties; (4e) the forms By virtue of the certificates evidencing the Charter, shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS have been duly and validly authorized Fund which are redeemed by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will may be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action resold by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been taken; (7) the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS do not and will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the Trust, any law or regulation applicable to the Trust, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is bound; and (8) no taxes are payable upon or in respect of the execution i) The Trust has adopted a written anti-money laundering program, which has been provided to BISYS pursuant to Section 18 of this Agreement or will be payable upon or in respect (the "AML Program"), and has appointed an officer of the issuance Trust as the Trust's anti-money laundering compliance officer ("AML Compliance Officer"), (ii) the AML Program and the designation of the shares AML Officer have been approved by the Board, (iii) the delegation of each series certain services thereunder to BISYS, as provided in Section 22 of APSthis Agreement, has been approved by the Board, and (iv) the Trust will submit any material amendments to the AML Program to BISYS for BISYS' review and consent prior to adoption, in accordance with Section 20 of this Agreement; and (g) The Trust has entered into a confidentiality agreement, in accordance with U.S. Department of the Treasury, Financial Crimes Enforcement Network ("FinCEN") release FIN-2006- G013, dated October 4, 2006, with the Funds' investment adviser, and the Trust hereby authorizes BISYS, acting in its capacity as transfer agent, to provide the investment adviser with information related to shareholder Suspicious Activity Reports, upon request.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Agent Underwriters that, and acknowledges that the Underwriters are relying upon, such representations and warranties in purchasing the Underwritten Units: (1a) the Trust is an unincorporated, closed-end trust, duly established, organized and is validly existing as a business trust in good standing under the laws of The Commonwealth Ontario and is properly registered under the laws of Massachusettsall jurisdictions in which its business is carried on except where the failure to be so registered would not have a material adverse effect on the business or operations of the Trust; (b) the Trustees have been duly appointed as trustees of the Trust; (c) the Trust is (i) a reporting issuer not in default in any material respect of any requirement under Canadian Securities Laws, and (ii) not in default in any material respect of any requirement under U.S. Securities Laws; (d) the Trust has full power the requisite power, authority and capacity to execute and deliver enter into this Agreement and to authorizeperform the transactions contemplated herein and the Trust has the requisite power, create authority and issue capacity to own, lease and to operate its property and assets including licences or other similar rights and to carry on the shares business customarily carried on by it and has all the requisite corporate power and authority to carry on its business as currently carried on or as currently proposed to be carried on. The Trust is conducting its business in compliance with all applicable laws, rules and regulations of APSeach jurisdiction in which its business is carried on and is duly licensed, registered or qualified in all jurisdictions in which it owns, leases or operates its property or carries on business to enable its business to be carried on as now conducted and its property and assets to be owned, leased and operated except where such non-compliance or failure to obtain such licence, registration or qualification would not have a material adverse effect on the business or operations of the Trust and all such licences, registrations and qualifications are valid and subsisting and in good standing; (2e) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act authorized to issue an unlimited number of 1940Units to which, as amendedat the date hereof, 10,918,000 Units are issued and outstanding as a closed-end, fully paid and non-diversifiedassessable. No person, management investment companyfirm or corporation has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement or option, for the purchase from the Trust of any unissued Units of the Trust except as otherwise referred to in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements; (3f) the Underwritten Units and the Additional Units hereinbefore described have been, or prior to the Closing Time will be, duly authorized for issuance and, when a certificate for such Units is countersigned by the Canadian Transfer Agent and issued, delivered and paid for, such Units will be validly issued and fully paid and all statements made in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements describing such Units will be accurate in all material respects; (g) no agreement is currently in force or effect that in any manner affects the voting or control of any of the securities of the Trust or the Administrator and, at the Closing time, no such agreement will be in force or effect; (h) the Trust is, and has qualified from inception as, a “mutual fund trust” for purposes of the Income Tax Act (Canada) (the “Tax Act”) and the Trust will conduct its affairs so as to continue to qualify as a mutual fund trust under the Tax Act, including, by limiting its activities to investing in property in which a mutual fund trust is permitted by the Tax Act to invest, and the Trust will not carry on any business; (i) the Trust is not, and never has been, a “SIFT trust” for purposes of the Tax Act and the Trust will not acquire any “non-portfolio property” as defined in the Tax Act or conduct its affairs so that it would be a SIFT trust; (j) the Trust does not own and does not intend to acquire any “taxable Canadian property” as defined in the Tax Act; (k) the form and terms of the certificate for the Units will have been approved and adopted by the Trust and do not conflict with the Declaration of Trust; (l) except as disclosed in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements, to the best of the Trust’s knowledge, there is no action, proceeding or investigation pending or threatened against the Trust before or by any federal, provincial, municipal or other governmental department, commission, board or agency, domestic or foreign, which is reasonably expected to result in any material change in the affairs or in the condition (financial or otherwise) of the Trust or its properties or assets (taken as a whole), or which questions the validity of any action taken or to be taken by the Trust pursuant to or in connection with this Agreement or as contemplated by the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements; (m) since March 31, 2010, there have been no changes in the assets or liabilities of the Trust from the position thereof as set forth in the Financial Information, except changes arising from transactions in the ordinary course of its affairs which, in the aggregate, have not been material to the Trust and except for changes that are disclosed in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements; (n) the financial statements of the Trust, including the notes thereto, incorporated in the Disclosure Package, the Prospectus Supplements and the Registration Statement have been prepared in conformity with Canadian generally accepted accounting principles and in a manner that is consistent with U.S. generally accepted accounting principles and in accordance with the 1933 Act and the Rules, including the requirements of Form F-10, in each case applied on a consistent basis throughout the periods involved; (o) the financial statements of the Trust as incorporated by reference in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements present fairly in all material respects the financial position of the Trust as at the dates of such statements; (p) the Trust is not in material violation of, and the execution and delivery of this Agreement and the performance by the Trust of its obligations under this Agreement will not result in any material breach or, violation of, or be in material conflict with, or constitute a material default under, or create a state of facts which after notice or lapse of time, or both, would constitute a material default under any term or provision of the constating documents of the Trust or any resolution of the Trustees or Unitholders of the Trust or any material contract, mortgage, note, indenture, joint venture or partnership arrangement, agreement (written or oral), instrument, lease, judgment, decree, order, statute, rule, licence or regulation applicable to the Trust; (q) no approval, authorization, consent or other order of, and no filing, registration or recording with, any governmental authority is required of the Trust in connection with the execution and delivery or with the performance by the Trust of this Agreement except as disclosed in the Disclosure Package and the Shelf Prospectuses as supplemented by the Prospectus Supplements and compliance with the Applicable Securities Laws with regard to the distribution of the Underwritten Units and Additional Units in the Qualifying Canadian Jurisdictions and the United States; (r) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, a valid and binding obligation of the Trust, enforceable against the Trust in accordance with its terms, subject except as to such enforceability to enforcement hereof may be limited by bankruptcy, insolvency, reorganization reorganization, moratorium or similar laws affecting the rights of creditors generally and other laws except as limited by the application of general applicability relating equitable principles when equitable remedies are sought and subject to or affecting creditors' the fact that rights of indemnity and to general equitable principlescontribution may be limited by applicable law and enforceability of paragraph 11 would be determined only in the discretion of a court; (4s) to the forms knowledge of the certificates evidencing Trust, no securities commission, stock exchange or comparable authority has issued any order preventing or suspending the shares use or effectiveness of each series the Shelf Prospectuses, the Disclosure Package, the Prospectus Supplements, the Registration Statement or any Prospectus Amendment or preventing the distribution of APS comply with all applicable laws the Underwritten Units and Additional Units in any Qualifying Canadian Jurisdiction or the United States nor instituted proceedings for that purpose and, to the knowledge of The Commonwealth of Massachusettsthe Trust, no such proceedings are pending or contemplated; (5t) the shares Trust is eligible in accordance with the provisions of National Instrument 44-101 to file a short form prospectus under National Instrument 44-102 with Canadian Securities Regulators; (u) the Trust is not, and upon consummation of the transactions contemplated hereby will not be, an "investment company" or an entity "controlled by an investment company" as such terms are defined in the United States Investment Company Act of 1940, as amended; (v) CIBC Mellon Trust Company, at its principal office in the Cities of Calgary, Montreal, Toronto and Vancouver has been duly appointed as registrar and transfer agent for the Units in Canada, and Mellon Investor Services LLC, at its principal office in Jersey City and Pittsburgh, has been duly appointed as registrar and transfer agent for the Units in the United States; (w) to the knowledge of the Trust, the Trust is not a "related issuer" or "connected issuer" (as such terms are defined under the Canadian Securities Laws) of the Underwriters; (x) the Trust has prepared and filed with the SEC an appointment of agent for service of process upon the Trust on Form F-X; (y) the Trust meets the general eligibility requirements for use of Form F-10 under the 1933 Act; (z) as at their respective dates, the Canadian Shelf Prospectus does, and the Canadian Prospectus Supplement will, comply in all material respects with the Canadian Securities Laws and, at the time of delivery of the Underwritten Units and Additional Units to the Underwriters, the Canadian Prospectus Supplement will comply in all material respects with the Canadian Securities Laws; (aa) (i) the U.S. Shelf Prospectus conforms and the U.S. Prospectus Supplement will conform to the Canadian Shelf Prospectus and Canadian Prospectus Supplement, respectively, except for such deletions therefrom and additions thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC under the 1933 Act (the "Rules"); (ii) the Registration Statement as amended or supplemented, on the Effective Date and on the date hereof did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) the U.S. Shelf Prospectus, the Trust’s Form F-X and the Registration Statement comply, and the U.S. Prospectus Supplement will comply, in all material respects with the 1933 Act and the Rules; (iv) the Disclosure Package does not, and at the Applicable Time or the time of each series sale of APS the Units in connection with the offering when the U.S. Prospectus Supplement is not yet available to prospective purchasers and at the Closing Date will not, and the U.S. Shelf Prospectus as supplemented by the U.S. Prospectus Supplement as of its date and as of the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Canadian Shelf Prospectus contains, and the Canadian Prospectus Supplement will contain, full, true and plain disclosure of all material facts required to be stated therein relating to the Trust, the affairs of the Trust, and the Underwritten Units and Additional Units, and as of the date of its filing will contain no untrue statement of a material fact and will not omit to state a material fact regarding the Trust and its affairs that is necessary to make any statement therein not misleading in light of the circumstances in which it was made; provided, however, that this representation and warranty shall not apply to statements or omissions made in reliance upon and in conformity with information relating to the Underwriters furnished in writing to the Trust by the Underwriters expressly for use in the Shelf Prospectuses, the Disclosure Package, the Prospectus Supplements or the Registration Statement; (bb) there are no reports or information that in accordance with the requirements of the Canadian Securities Regulators or the SEC must be made publicly available or filed in connection with the offering of the Underwritten Units and Additional Units that have not been duly and validly authorized made publicly available or filed as required; (cc) the delivery by the Trust and, upon completion of any signed Prospectus Amendment or material change report required to be filed under the initial sale of Applicable Securities Laws will constitute a representation and warranty by the shares of such series of APS Trust to the Underwriters that all the information and receipt of payment therefor, will be validly issued, fully paid statements contained therein (except information and nonassessablestatements relating to the Underwriters) are true and correct and that no material information has been omitted therefrom which is necessary to make the statements contained therein not misleading; (6dd) at the time Trust is in material compliance with each material license held by it and is not in violation of, or in default in any material respect under, the applicable statutes, ordinances, rules, regulations, orders or decrees (including, without limitation, "Environmental Laws" as defined below) of any governmental entities, regulatory agencies or bodies asserting or claiming jurisdiction over it or over any part of its affairs or assets, except for such violations and defaults which, singly or in the aggregate, would not have a material adverse effect on the assets or properties, affairs, prospects or condition (financial or otherwise) of the Trust; (ee) to the best of the knowledge of the Trust, there are no foreign, federal, provincial, state or local laws or regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws") which affect or otherwise have any application to the Trust or its affairs, properties and assets (taken as a whole), or to which the Trust is otherwise subject. The Trust does not require any license or other approval under any Environmental Laws to conduct its operations; (ff) there has not been any reportable event (within the meaning of National Instrument 51-102) with the auditors of the Trust; (gg) the Trust shall use its best efforts to arrange for the listing and posting for trading of the Underwritten Units and Additional Units on the Stock Exchanges on or before the Time of Closing; and (hh) the Trust is using the net proceeds of the offering of the shares of each series of APS, Underwritten Units for the shares offered will be registered under purposes described in the Securities Act of 1933, as amended, and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been taken; (7) the execution and delivery of this Agreement Shelf Prospectuses and the issuance and delivery of the shares of each series of APS do not and will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the Trust, any law or regulation applicable to the Trust, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is bound; and (8) no taxes are payable upon or in respect of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APSDisclosure Package.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Paying Agent that: (1a) the Trust is duly organized and is a validly existing as a business trust in good standing under the laws of The Commonwealth the State of Massachusetts, Delaware and has the Trustees have full power under the Trust Agreement to execute and deliver this Agreement and to authorize, create and issue the shares of APSDECS; (2) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3b) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation agreement of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4c) the forms form of the certificates certificate evidencing the shares of each series of APS comply DECS complies with all applicable laws of The Commonwealth the State of MassachusettsDelaware and the State of New York; (5d) the shares of each series of APS DECS have been duly and validly authorized authorized, executed and delivered by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be are validly issued, fully paid and nonassessable; (6e) at the time of the offering of the shares of each series of APS, the shares offered will be DECS have been registered under the Securities Act of 1933, as amendedthe Trust has been registered under the Investment Company Act, and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been takenDECS; (7f) the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS DECS do not and will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the TrustAgreement, any law or regulation applicable to the Trustregulation, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is or the Trustees are a party or by which it is any of them are bound; and (8) g) no taxes are payable upon or in respect of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APSDECS.

Representations and Warranties of the Trust. The Trust Trust, on behalf of the Fund, represents and warrants to the Auction Agent and agrees with each Partnership that: (1a) the The Trust is a statutory trust duly organized formed and is validly existing as a business trust in good standing under the laws of The Commonwealth of Massachusetts, Delaware and has full power to execute and deliver this Agreement carry on its business as it is now being conducted and to authorizecarry out, create execute, deliver and issue the shares of APS;perform its obligations under this Agreement. The Trust is taxable as a corporation for U.S. federal income tax purposes. (2b) The Trust has filed a registration statement on Form N-1A (the Trust is registered “Registration Statement”) with the Securities and Exchange Commission under (the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3“SEC”) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4) the forms of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933, as amendedamended (the “1933 Act”), and the 1940 Act. (c) At the Exchange Date, all Fund Shares to be issued to the Partnerships will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable; and no further action by shareholder of the Trust will have any preemptive right of subscription or before purchase with respect to any Fund Shares. (d) No consent, approval, authorization, or order of any governmental body or authority is required for the consummation by the Trust of the United States or transactions contemplated by this Agreement, except (i) for the filing of any state thereof is a post-effective amendment to the Trust’s Registration Statement on Form N-1A and (ii) such as may otherwise be required in connection with under the execution and delivery 1940 Act. (e) The issuance of Fund Shares pursuant to this Agreement or will be required in connection compliance with the issuance of the shares of APS, except such action as required by all applicable federal and state securities laws. (f) Immediately after the Exchange described in this Agreement, the Partnerships will own all of which action the issued and outstanding shares of the Fund. (g) As of the date of the Exchange, the Fund will have been taken; (7) the execution and delivery of this Agreement and same procedures as the issuance and delivery of the shares of each series of APS do not and will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the Trust, any law or regulation applicable to the Trust, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is bound; and (8) no taxes are payable upon or in respect of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APSPartnerships for determining net asset values.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Paying Agent that: (1a) the Trust is duly organized and is a validly existing as a business trust in good standing under the laws of The Commonwealth the State of Massachusetts, New York and has the Trustees have full power under the Trust Agreement to execute and deliver this Agreement on behalf of the Trust and to authorize, create and issue the shares of APSSecurities; (2) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3b) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation agreement of the Trust, Trust enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4c) the forms form of the certificates certificate evidencing the shares of each series of APS comply Securities complies with all applicable laws of The Commonwealth the State of MassachusettsNew York; (5d) the shares of each series of APS Securities have been duly and validly authorized authorized, executed and delivered by the Trust and, upon completion of and are validly issued; (e) the initial offer and sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be Securities has been registered under the Securities Act of 1933, as amended, and the Trust has been registered under the Investment Company Act and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been takenSecurities; (7f) the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS Securities do not and will not conflict with, violate, violate or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the TrustAgreement, any law or regulation applicable to the Trustregulation, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contractcontract[S], agreement or undertaking to which the Trust is a party or by which it is bound; and (8) g) no taxes are payable upon or in respect of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APSSecurities.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Agent that: (1a) the Trust is a duly organized and is validly existing as a business trust in good standing under the laws of The Commonwealth the State of Massachusetts, its incorporation or organization and has full corporate power or all requisite power to execute and deliver this the Agreement and to authorize, create and issue the shares of APSMunicipal Preferred of each series, and the shares of Municipal Preferred of each series when issued, will be duly authorized, validly issued, fully paid and nonassessable; (2b) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4c) the forms form of the certificates certificate evidencing the shares of Municipal Preferred of each series of APS complies or will comply with all applicable laws of The Commonwealth the State of Massachusettsits incorporation or organization; (5d) when issued, the shares of Municipal Preferred of each series of APS will have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this the Agreement or will be have been required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all Municipal Preferred of which action will have been takeneach series; (7e) the execution and delivery of this the Agreement and the issuance and delivery of the shares of Municipal Preferred of each series of APS do not and will not conflict with, violate, violate or result in a breach of, of the terms, conditions or provisions of, or constitute a default under, the Agreement and Declaration of Trust (as amended to date) or the Amended By-Laws Bylaws of the Trust, any law or regulation applicable to the Trustregulation, any order or decree of any court or public authority having jurisdiction over the Trustjurisdiction, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is boundbound the effect of which conflict, violation, default or breach would be material to the Trust or the Trust and its subsidiaries taken as a whole; and (8) f) no taxes are payable upon or in respect of the execution of this the Agreement or will be payable upon or in respect of the issuance of the shares of each series Municipal Preferred of APSany series.

Representations and Warranties of the Trust. The Trust Trust, on behalf of the Fund, represents and warrants to and agrees with the Auction Agent Partnership that: (1a) the The Trust is a statutory trust duly organized formed and is validly existing as a business trust in good standing under the laws of The Commonwealth of Massachusetts, Delaware and has full power to execute and deliver this Agreement carry on its business as it is now being conducted and to authorizecarry out, create execute, deliver and issue the shares of APS;perform its obligations under this Agreement. The Trust is taxable as a corporation for U.S. federal income tax purposes. (2b) The Trust has filed a registration statement on Form N-1A (the Trust is registered "Registration Statement") with the Securities and Exchange Commission under (the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3"SEC") this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4) the forms of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 19331933 Act, as amendedamended (the "1933 Act"), and the 1940 Act. (c) At the Exchange Date, all Fund Shares to be issued to the Partnership will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable; and no further action by shareholder of the Trust will have any preemptive right of subscription or before purchase with respect to any Fund Shares. (d) No consent, approval, authorization, or order of any governmental body or authority is required for the consummation by the Trust of the United States or transactions contemplated by this Agreement, except (i) for an order of any state thereof is exemption from the provisions of Section 17(a) of the 1940 Act as may be required in connection with by the execution 1940 Act, (ii) for the filing of a post- effective amendment to the Trust's Registration Statement on Form N-1A and delivery (iii) such as may otherwise be required under the 1940 Act. (e) The issuance of Fund Shares pursuant to this Agreement or will be required in connection compliance with the issuance of the shares of APS, except such action as required by all applicable federal and state securities laws. (f) Immediately after the Exchange described in this Agreement, the Partnership will own all of which action will have been taken; (7) the execution issued and delivery of this Agreement and the issuance and delivery outstanding shares of the shares of each series of APS do not and will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the Trust, any law or regulation applicable to the Trust, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is bound; and (8) no taxes are payable upon or in respect of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APSFund.

Representations and Warranties of the Trust. The Trust Trust, on behalf of the Fund, represents and warrants to and agrees with the Auction Agent Partnership that: (1a) the The Trust is a statutory trust duly organized formed and is validly existing as a business trust in good standing under the laws of The Commonwealth of Massachusetts, Delaware and has full power to execute and deliver this Agreement carry on its business as it is now being conducted and to authorizecarry out, create execute, deliver and issue the shares of APS;perform its obligations under this Agreement. The Trust is taxable as a corporation for U.S. federal income tax purposes. (2b) The Trust has filed a registration statement on Form N-1A (the Trust is registered “Registration Statement”) with the Securities and Exchange Commission under (the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3“SEC”) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4) the forms of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 19331933 Act, as amendedamended (the “1933 Act”), and the 1940 Act. (c) At the Exchange Date, all Fund Shares to be issued to the Partnership will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable; and no further action by shareholder of the Trust will have any preemptive right of subscription or before purchase with respect to any Fund Shares. (d) No consent, approval, authorization, or order of any governmental body or authority is required for the consummation by the Trust of the United States or transactions contemplated by this Agreement, except (i) for an order of any state thereof is exemption from the provisions of Section 17(a) of the 1940 Act as may be required in connection with by the execution 1940 Act, (ii) for the filing of a post-effective amendment to the Trust’s Registration Statement on Form N-1A and delivery (iii) such as may otherwise be required under the 1940 Act. (e) The issuance of Fund Shares pursuant to this Agreement or will be required in connection compliance with the issuance of the shares of APS, except such action as required by all applicable federal and state securities laws. (f) Immediately after the Exchange described in this Agreement, the Partnership will own all of which action will have been taken; (7) the execution issued and delivery of this Agreement and the issuance and delivery outstanding shares of the shares of each series of APS do not and will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the Trust, any law or regulation applicable to the Trust, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is bound; and (8) no taxes are payable upon or in respect of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APSFund.

Representations and Warranties of the Trust. The POT and the Administrator (a) Each delivery of the Prospectuses pursuant to Section 5 above shall constitute a joint and several representation and warranty to the Underwriters by each of the Trust, POT and the Administrator (and each of the Trust, POT and the Administrator hereby acknowledges that each of the Underwriters is relying on such representations and warranties in entering into this agreement) that: (i) all material information and statements (other than any information or statement relating solely to the Underwriters and furnished to the Trust by the Underwriters expressly for inclusion in the Preliminary Prospectus or the Prospectus) contained in the Preliminary Prospectus, the Prospectus or any Supplementary Material, as applicable, including, without limitation, the documents incorporated by reference therein: (A) are at the respective dates of such documents, true and correct in all material respects; (B) contain no misrepresentation; and (C) constitute full, true and plain disclosure of all material facts relating to the Trust, POT and the Administrator, the Offered Securities; (ii) the Preliminary Prospectus, the Prospectus, or any Supplementary Material, as applicable, including, without limitation, the documents incorporated by reference therein, complies in all material respects with the Applicable Securities Laws, including without limitation National Instrument 44-101 and the simplified prospectus rules of the Securities Act (Quebec); and (iii) except as is disclosed in the Public Record, there has been no intervening material change (actual, proposed or prospective, whether financial or otherwise), from the date of the Preliminary Prospectus, the Prospectus or any Supplementary Material to the time of delivery thereof, in the business, operations, capital, properties, assets, liabilities (absolute, accrued, contingent or otherwise), condition (financial or otherwise) or results of operations, or ownership of the Trust, POT or the Administrator. (b) In addition to the representations and warranties contained in Section 9(a) hereof, each of the Trust, POT and the Administrator jointly and severally represents and warrants to the Auction Agent Underwriters, and acknowledges that each of the Underwriters is relying upon such representations and warranties in entering into this agreement, that: (1i) the Trust is has been duly created and organized and is validly existing a valid and subsisting trust under the laws of the Province of Alberta and has all requisite trust authority and power to carry on its business as described in the Prospectuses including, without limitation, to perform its obligations under the Material Agreements to which it is a party, the POT Royalty Agreement and the agreements governing the Credit Facilities and to own and administer its properties and assets including, without limitation, the Trust Assets; (ii) POT has been duly created and organized and is a valid and subsisting trust under the laws of the Province of Alberta and as all requisite trust authority and power to carry on its business trust as described in the Prospectuses including, without limitation, to perform its obligations under the Material Agreements to which it is a party, the POT Royalty Agreement and the agreements governing the Credit Facilities and to own and administer its properties and assets; (iii) the Administrator has been duly incorporated and is valid and subsisting in good standing under the laws of The Commonwealth its jurisdiction of Massachusetts, incorporation and has full all requisite authority and power to execute and deliver this Agreement carry on its business as described in the Prospectuses and to authorizeown, create lease and issue operate its properties and assets as described in the shares of APSProspectuses including, without limitation, to perform its obligations under the Material Agreements to which it is a party; (2iv) the Trust is registered with qualified to carry on its activities including, without limitation, owning the Securities and Exchange Commission under the Investment Company Act of 1940Trust Assets, as amended, as a closed-end, non-diversified, management investment companyin each jurisdiction where it carries on such activities; (3v) this Agreement has been duly each of POT and the Administrator is qualified to carry on business, including, without limitation, owning the assets described in the Prospectuses and the Documents, and is validly authorizedsubsisting under the laws of each jurisdiction in which it carries on its business; (vi) except as disclosed in the Prospectuses, executed and delivered by the Trust and constitutes the legal, valid and binding obligation of neither the Trust, enforceable against POT nor the Administrator has any material subsidiaries, and aside from the foregoing neither the Trust, POT nor the Administrator is "affiliated" with or a "holding corporation" of any body corporate (within the meaning of those terms in the ABCA) that is material to the operations of the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principleson a consolidated basis; (4vii) the forms of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been taken; (7) the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS do not and will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the Trust, any law or regulation applicable to the Trust, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or "unit trust" and a "mutual fund trust" under the Tax Act and the Trust shall at all times conduct its affairs so as to continue to qualify as a "unit trust" and a "mutual fund trust", including by limiting its activities to investing the property of the Trust in the assets described in the Prospectuses and the Documents and other property in which it a "mutual fund trust" is bound; andpermitted by the Tax Act to invest, and will not carry on any other business; (8) viii) all of the issued and outstanding shares in the capital of the Administrator are fully paid and non-assessable and legally and beneficially owned by the Trust free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands whatsoever (except for security, pledges and similar instruments granted by the Trust to its Bankers) and no taxes are payable upon person holds any securities convertible into or exchangeable for issued or unissued shares of the Administrator or has any agreement, warrant, option, right or privilege (whether pre-emptive or contractual) being or capable of becoming an agreement, warrant, option or right for the acquisition of any unissued or issued securities of the Administrator; (ix) all of the beneficial interest in POT is held by the Administrator, as the trustee of POT, for the benefit of and on behalf of the Trust and POT has no other debt or equity securities outstanding other than certain debt instruments owing to the Trust; (x) no person has any agreement or option or right or privilege capable of becoming an agreement for the purchase, subscription or issuance of any unissued Trust Units or other securities of either the Trust or POT, other than: (i) in respect of the execution of this Agreement or will be payable upon or in respect incentive rights to acquire Trust Units issued to directors, officers, employees and other service providers of the issuance Administrator pursuant to the Trust Unit Incentive Plan of the shares Trust; and (ii) pursuant to the Distribution Reinvestment and Optional Trust Unit Purchase Plan of each series the Trust; 1) the Trust has full power and authority to issue the Offered Receipts, the Offered Debentures, the Trust Units issuable pursuant to the Offered Receipts and the Trust Units issuable upon conversion, redemption or maturity of APS.the Offered Debentures and to grant the Underwriters' Option;

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Agent that: (1a) the The Trust is has been duly organized and is validly existing as a business trust in good standing under an unincorporated voluntary association under, and by virtue of, the laws of The the Commonwealth of Massachusetts, Massachusetts and has full power to execute and deliver this Agreement and to authorize, create authorize and issue the shares AMPS; the AMPS have been duly authorized by the Trust and, upon completion of APSthe initial sale of the AMPS and receipt of payment therefor, will be validly issued by the Trust, fully paid and, except as set forth in the Registration Statement, nonassessable; (2b) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4c) the forms form of the certificates certificate evidencing the shares of each series of APS AMPS complies or will comply with all applicable laws of The the Commonwealth of Massachusetts; (5d) when issued, the shares of each series of APS AMPS will have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this the Agreement or will be have been required in connection with the issuance of the shares of APSAMPS, except such action as is required by applicable state securities laws, all of which action will have been taken; (7e) the execution and delivery of this the Agreement and the issuance and delivery of the shares of each series of APS AMPS do not and will not conflict with, violate, violate or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Agreement and Declaration of Trust or the Amended By-Laws of the Trust, as amended to date, the Amended and Restated Bylaws or any law or regulation applicable to the Trustregulation, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is boundbound the effect of which conflict, violation, default or breach would be material to the Trust or the Trust and its subsidiaries taken as a whole; and (8) f) no taxes are payable upon or in respect of the execution of this the Agreement or will be payable upon or in respect of the issuance of the shares AMPS of each series of APSany series.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Agent that: (1) the Trust is duly organized and is validly existing as a business trust in good standing under the laws of The Commonwealth of Massachusetts, and has full power to execute and deliver this Agreement and to authorize, create and issue the shares of APS; (2) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4) the forms of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been taken; (7) the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS do not and will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the Trust, any law or regulation applicable to the Trust, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is bound; and (8) no taxes are payable upon or in respect of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APS.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Agent Underwriters that: (1a) each of this Agreement, the Trust is duly organized Note Indenture, the Note Indenture Supplement and is validly existing as a business trust in good standing under the laws of The Commonwealth of Massachusetts, and has full power to execute and deliver this Agreement and to authorize, create and issue the shares of APS; (2) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3) this Agreement Guarantee has been duly and validly authorized, executed and delivered by the Trust and/or Kimco, as the case may be, and constitutes the is a legal, valid and binding obligation contract of the TrustTrust and/or Kimco, as the case may be, enforceable against the Trust each in accordance with its terms, subject as to such the general qualifications that enforceability to may be limited by bankruptcy, insolvency, reorganization and insolvency or other laws of general applicability relating to or affecting creditors' ’ rights generally and to general that equitable principlesremedies, including the remedies of specific performance and injunctive relief, are available only in the discretion of the applicable court; (4b) the forms Trust is a trust that has been duly created under the laws of New York and the trustee of the certificates evidencing Trust has the shares power and capacity to execute and deliver this Agreement, the Note Indenture and the Notes, and to observe and perform its covenants and obligations thereunder, in each case as trustee of each series the Trust, and the completion of APS comply with all applicable laws the transactions contemplated therein have been duly approved by the trustee of The Commonwealth of Massachusettsthe Trust; (5c) Kimco is a valid and subsisting company, has or had, as the shares of each series of APS have been duly case may be, the necessary corporate power and validly authorized by authority to execute and deliver the Trust andIndenture and the Guarantee, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid to observe and nonassessableperform its covenants and obligations thereunder and has taken all necessary corporate action in respect thereof; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been taken; (7d) the execution and delivery of, and the performance of and compliance with the terms of this Agreement Agreement, the Note Indenture, the Note Indenture Supplement, the Guarantee and the issuance and delivery of Notes by the shares of each series of APS Trust do not and will not conflict with, violate, or result in a any breach of, the terms, conditions or provisions of, or constitute a default under, and do not and will not create a state of facts which, after notice or lapse of time or both, would result in a breach of or constitute a default under, any term or provision of the Declaration governing documents of the Trust; (e) the execution and delivery of, and the performance of and compliance with the terms of the Note Indenture and the Guarantee by Kimco do not and will not result in any breach of, or constitute a default under, and do not and will not create a state of facts which, after notice or lapse of time or both, would result in a breach of or constitute a default under, any term or provision of its articles, by-laws or resolutions of the Board of Directors of Kimco; (f) the Trust is in compliance with all covenants under, and no default on the part of the Trust exists under, any indenture, agreement or instrument by which the Trust is bound, except to the extent that all instances of such non-compliance therewith or default thereunder would not in the aggregate have a Material Adverse Effect on the Trust; (g) the Notes, the Note Indenture and the Note Indenture Supplement conform in all material respects to the respective statements relating thereto contained in the Term Sheet; (h) the Distribution of the Notes to the Underwriters at the Closing Time will be exempt from the registration and prospectus requirements under applicable Securities Laws, and no prospectus or other document will be required to be filed, any proceeding taken or any approval, permit, consent or authorization obtained under the Securities Laws to permit any such Distribution; however, the Trust will be required to file within the prescribed time periods for doing so, any required reports of such Distributions and the payment by the Trust of applicable fees related thereto as well as the Investor Presentation; (i) the Trustee has been duly appointed as trustee under the Note Indenture and as registrar and transfer agent for the Notes at its principal transfer office in the City of Toronto; (j) the form of the certificates representing the Notes have been duly approved by the Trust and comply with the provisions of the laws of its jurisdiction of incorporation; (k) the Offering has not been accompanied by an advertisement by the Trust or Kimco, and no selling or promotional expenses have been paid or incurred by the Amended By-Laws Trust or Kimco in connection with the Offering except for professional services or for services performed by a registered dealer; and (l) to the knowledge of the Trust, any law there are no legal or regulation applicable to administrative actions or proceedings pending in the Trust, any order Provinces of Québec or decree of any court Ontario or public authority having jurisdiction over in the Trust, or any mortgage, indenture, contract, agreement or undertaking United States to which the Trust or Kimco is a party party, that seek to restrain, enjoin or otherwise challenge the transactions contemplated by which it is bound; and (8) this Agreement and no taxes are payable upon or in respect regulatory authority of any of the execution of this Agreement provinces in Canada into which the Notes are being sold has issued any order preventing or will be payable upon or in respect suspending the use of the issuance Investor Presentation or the offering or the sale of the shares of each series of APSNotes.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Agent that: (1i) the Trust is duly organized and is validly existing as a business trust in good standing under the laws of The the Commonwealth of Massachusetts, and has full power to execute and deliver this Agreement and to authorize, create and issue the shares of APSPreferred Shares; (2ii) the Trust is registered with the Securities and Exchange Commission SEC under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3iii) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4iv) the forms form of the certificates evidencing the shares of each series of APS Preferred Shares comply with all applicable laws of The the Commonwealth of Massachusetts; (5v) the shares of each series of APS Preferred Shares have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS Preferred Shares and receipt of payment therefor, will be validly issuedissued by the Trust, fully paid and nonassessable; (6vi) at the time of the offering of the shares of each series of APSPreferred Shares, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the PILGRIM PRIME RATE TRUST AUCTION AGENCY AGREEMENT execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APSPreferred Shares, except such action as required by applicable state securities laws, all of which action will have been taken; (7vii) the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS Preferred Shares do not and will not conflict with, violate, or result in a breach of, of the terms, conditions or provisions of, or constitute a default under, the Trust's Declaration of Trust Trust, as amended, or the Amended By-Laws of the Trust, any law or regulation applicable to the TrustCertificate, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is bound; and (8) viii) no taxes are payable upon or in respect of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APSPreferred Shares.

Representations and Warranties of the Trust. The Trust Except as has been disclosed to the Target Fund in a written instrument executed by an officer of the Trust, the Trust, on behalf of the Acquiring Fund, represents and warrants to the Auction Agent thatTarget Fund as follows: (1a) The Acquiring Fund is a duly established series of the Trust Trust, which is a statutory trust duly organized organized, validly existing, and is validly existing as a business trust in good standing under the laws of The Commonwealth the State of MassachusettsDelaware with power under its Trust Instrument and By-Laws, each as amended from time to time, to own all of its properties and has full power to execute and deliver this Agreement assets and to authorize, create and issue the shares of APS;carry on its business as it is presently conducted. (2b) At the Effective Time, the Trust is will be registered with the Securities and Exchange Commission as an open-end management investment company under the Investment Company 1940 Act, and the registration of the Acquiring Fund Shares under the 1933 Act of 1940, as amended, as a closed-end, non-diversified, management investment company;will be in full force and effect. (3c) this Agreement has been duly and validly authorizedNo consent, executed and delivered by the Trust and constitutes the legalapproval, valid and binding obligation of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4) the forms of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been taken; (7) the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS do not and will not conflict with, violateauthorization, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the Trust, any law or regulation applicable to the Trust, any order or decree of any court or public governmental authority having jurisdiction over is required for the consummation by the Trust on behalf of the Acquiring Fund of the transactions contemplated herein, except such as have been obtained under the 1933 Act, the 1934 Act, and the 1940 Act and such as may be required under state securities laws. (d) The prospectus and statement of additional information of the Acquiring Fund filed with the Commission on September 10, 2020 as part of the Trust’s registration statement on Form N-1A, as of its effective date and the Closing Date, will conform in all material respects to the applicable requirements of the 1933 Act and the 1940 Act and the rules and regulations of the Commission thereunder, and, as of its effective date and the Closing Date, will not include any untrue statement of material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not materially misleading. (e) At the Effective Time, the Trust, on behalf of the Acquiring Fund, will have good and marketable title to the Acquiring Fund’s assets, if any, free of any liens or other encumbrances. (f) The Acquiring Fund is not engaged currently, and the execution, delivery and performance of this Agreement by the Trust, on behalf of the Acquiring Fund, will not result, in (i) a violation of Delaware law or a material violation of the Trust’s Trust Instrument and By-Laws or of any mortgageagreement, indenture, instrument, contract, agreement lease or other undertaking to which the Trust Trust, on behalf of the Acquiring Fund, is a party or by which it is bound; and, or (ii) the acceleration of any material obligation, or the imposition of any material penalty, under any agreement, indenture, instrument, contract, lease, judgment or decree to which the Trust, on behalf of the Acquiring Fund, is a party or by which it is bound. (8) g) Except as otherwise disclosed to and accepted by the Target Fund, in writing, no taxes are payable upon litigation or in respect administrative proceeding or formal investigation of or before any court or governmental body is presently pending or, to the Acquiring Fund’s knowledge, threatened against the Trust, on behalf of the execution Acquiring Fund, or any of the Acquiring Fund’s properties or assets that, if adversely determined, would materially and adversely affect the Acquiring Fund’s financial condition or the conduct of its business. The Trust, on behalf of the Acquiring Fund, knows of no facts that are reasonably likely to form the basis for the institution of such proceedings and is not a party to or subject to the provisions of any order, decree or judgment of any court or governmental body that materially and adversely affects the Acquiring Fund’s business or its ability to consummate the transactions herein contemplated. (h) The Acquiring Fund, prior to the Closing Date, will have not commenced operations or carried on any business activity, will have had no assets or liabilities and will have no issued or outstanding shares other than as described in Subparagraph 6.1(b) of this Agreement. (i) At the Effective Time, all Federal and other tax returns, dividend reporting forms, and other tax-related reports of the Acquiring Fund required by law to have been filed by such date (including any extensions, if any) shall have been filed and are or will be correct in all material respects, and all Federal and other taxes shown as due or required to be shown as due on said returns and reports shall have been paid or provision shall have been made for the payment thereof to the best of the knowledge of the Acquiring Fund, and no such return is currently under audit and no assessment has been asserted with respect to such returns. (j) Since its commencement of operations, the Trust has been registered at all times under the 1940 Act and, through such registration, the Acquiring Fund will meet the definitional requirement of Section 851(a) of the Code for qualification as a regulated investment company. The Acquiring Fund will be eligible to be, and intends to be, treated, as of the Closing Date and thereafter, as an investment company separate from any and all other series of the Trust. (k) The execution, delivery and performance of this Agreement will have been duly authorized prior to the Effective Time by all necessary action, if any, on the part of the Trustees of the Trust, on behalf of the Acquiring Fund, and this Agreement will constitute a valid and binding obligation of the Acquiring Fund, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights and to general equity principles. (l) The Acquiring Fund Shares to be issued and delivered to the Target Fund, for the account of the Target Fund Shareholders, pursuant to the terms of this Agreement will at the Effective Time have been duly authorized and, when so issued and delivered, will be payable upon duly and validly issued Acquiring Fund Shares, will be fully paid and non-assessable by the Trust, and will have been issued in every jurisdiction in compliance in all material respects with applicable registration requirements and applicable securities laws. The Acquiring Fund does not have outstanding any options, warrants or in respect of the issuance other rights to subscribe for or purchase any of the shares of each series the Acquiring Fund, nor is there outstanding any security convertible into any of APSthe Acquiring Fund’s shares. (m) The information to be furnished by the Acquiring Fund for use in the registration statements, proxy materials and other documents filed or to be filed with any Federal, state or local regulatory authority (including FINRA) that may be necessary in connection with the transactions contemplated hereby shall be accurate and complete in all material respects and shall comply in all material respects with Federal securities and other laws and regulations applicable thereto; provided, however, that the representations and warranties of this Subparagraph (m) shall not apply to statements in or omissions from such materials made in reliance upon and in conformity with information that was furnished by the Target Fund for use therein.

Representations and Warranties of the Trust. The Trust Trust, on behalf of the Fund, represents and warrants to the Auction Agent each Partnership and agrees that: (1a) the The Trust is a statutory trust duly organized formed and is validly existing as a business trust in good standing under the laws of The Commonwealth of Massachusetts, Delaware and has full power to execute and deliver this Agreement carry on its business as it is now being conducted and to authorizecarry out, create execute, deliver and issue perform its obligations under this Agreement. Each series of the shares of APS;Trust, including without limitation the Fund with respect to its first taxable year which includes the Exchange Date, is or will be taxable as a separate corporation for U.S. federal income tax purposes. There is no plan or intention for the Trust to change such federal income tax classification for any such series. (2b) The Trust has filed a post-effective amendment to its registration statement on Form N-1A relating to the Trust is registered Fund (the “Registration Statement”) with the Securities and Exchange Commission under (the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3“SEC”) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4) the forms of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933, as amendedamended (the “1933 Act”), and the 1940 Act. (c) At the Exchange Date, all Fund Shares to be issued to the Partnerships will have been duly authorized and, when issued and delivered pursuant to this Agreement, will be legally and validly issued and will be fully paid and nonassessable; and no further action by shareholder of the Trust will have any preemptive right of subscription or before purchase with respect to any Fund Shares. The Fund has no outstanding or authorized options, warrants, purchase rights, subscription rights, conversion rights, exchange rights or similar contracts or commitments. (d) No consent, approval, authorization, or order of any governmental body or authority is required for the consummation by the Trust of the United States or transactions contemplated by this Agreement, except (i) for the filing of any state thereof is a post-effective amendment to the Trust’s Registration Statement on Form N-1A and (ii) such as may otherwise be required in connection with under the execution and delivery 1940 Act. (e) The issuance of Fund Shares pursuant to this Agreement or will be required in connection compliance with the issuance of the shares of APS, except such action as required by all applicable federal and state securities laws. (f) Immediately after the Exchange described in this Agreement, the Partners of the Partnerships will own all of which action the issued and outstanding shares of the Fund. (g) As of the date of the Exchange, the Fund will have been taken; (7) the execution and delivery of this Agreement and same procedures as the issuance and delivery of the shares of each series of APS do not and will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the Trust, any law or regulation applicable to the Trust, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is bound; and (8) no taxes are payable upon or in respect of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APSPartnerships for determining net asset values.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Agent Company as of the date of this Agreement and as of the Closing that: (1a) the The Trust is has been duly organized and is validly existing as a business trust in good standing under the laws of the State of New York. The Commonwealth of Massachusetts, Trust has all requisite power and has full power authority to execute and deliver this Agreement, the TM Exchange Agreement, the Stockholders' Agreement, the Escrow Agreement and the Amended Supplemental Agreement and to authorize, create consummate the transactions contemplated hereby and issue the shares of APS; (2) thereby. The Trustees have all requisite power and authority to execute and deliver the Trust is registered with Amendment. The execution and delivery of this Agreement, the Securities Amended Supplemental Agreement, the TM Exchange Agreement, the Stockholders' Agreement, the Escrow Agreement and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3) this Agreement has been duly and validly authorized, executed and delivered by the Trust Amendment, and constitutes the legal, valid and binding obligation consummation of the Trusttransactions contemplated hereby and thereby, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4) the forms of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS have been duly and validly authorized by the Trust and, upon completion of or the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933Trustees, as amendedthe case may be, and no further action by or before any governmental body or authority other proceedings on the part of the United States Trust or of any state thereof is required in connection with the Trustees, as the case may be, are necessary to authorize the execution and delivery of such agreements or, except for obtaining the concurrence of the SCB and the Futures Representative as provided in Sections 6.1(b) and 6.2(b) and the issuance and effectiveness of the Order as provided in Sections 6.1(c) and 6.2(c), the consummation of the transactions contemplated hereby and thereby. (b) This Agreement and the TM Exchange Agreement have been (and the Stockholders' Agreement, the Amended Supplemental Agreement, the Escrow Agreement and the Trust Amendment when delivered will have been) duly executed and delivered by the Trust or the Trustees, as the case may 8 9 be, and this Agreement or and the TM Exchange Agreement constitute (and the Stockholders' Agreement, the Amended Supplemental Agreement, the Escrow Agreement and Trust Amendment when executed and delivered will be required in connection with the issuance constitute) a valid and legally binding obligation of the shares Trust or the Trustees, as the case may be, enforceable against the Trust or the Trustees, as the case may be, in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of APS, except such action as required by applicable state securities laws, all of which action will have been taken;general applicability relating to or affecting creditors rights and to general equity principles. (7c) None of the execution and delivery by the Trust of this Agreement, the Amended Supplemental Agreement, the TM Exchange Agreement, the Stockholders' Agreement and or the issuance Escrow Agreement, the execution and delivery by the Trustees of the shares Trust Amendment, the consummation by the Trust or the Trustees, as the case may be, of each series the transactions contemplated hereby and thereby nor compliance by the Trust with the terms and conditions of APS do not and such agreements will not (A) conflict with, violate, with or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws require any consent or waiver under, any of the Trustterms, obligations, covenants, conditions or provisions of (i) any law indenture, mortgage, deed of trust, pledge, bank loan or regulation applicable to the Trust, any order or decree of any court or public authority having jurisdiction over the Trustcredit agreement, or any mortgage, indenture, contract, other agreement or undertaking instrument to which the Trust is a party or by which it is boundor its assets may be bound (other than the Trust Agreement) or (ii) the Trust Agreement or (B) conflict with or result in a breach of, or require any consent or waiver under any of the terms, conditions or provisions of any statute, judgment, order, writ, injunction, decree, rule or regulation of any Governmental Agency subject to the Trust's obtaining the concurrence of the SCB and the Futures Representative as provided in Sections 6.1(b) and 6.2(b), the issuance and effectiveness of the Order as provided by Sections 6.1(c) and 6.2(c); andand except in the case of (A)(i) or (B) for any such conflict, breach or default that would not prevent or materially delay the consummation of the transactions contemplated hereby and would not be reasonably expected to, individually or in the aggregate, have a material adverse effect on the Trust. (8) d) All necessary licenses, permits, consents, approvals, authorizations, qualifications and orders of Governmental Agencies (if any) and other persons required to be received by the Trust in order to consummate the transactions contemplated hereby have been received by the Trust, except those listed on Schedule 5.1(d) and except for those which the failure to receive would not prevent or materially delay the consummation of the transactions contemplated hereby. (e) Except as set forth on Schedule 5.1(e), (i) the Trust has filed all material Tax Returns required to be filed with any taxing authority in accordance with all applicable laws, has timely paid all Taxes required to be paid with respect to such Tax Returns and all such Tax Returns were true, correct and complete in all material respects; (ii) to the knowledge of the Trust there is no taxes are payable upon action, suit, proceeding, investigation, audit or claim pending or threatened, against or with respect to the Trust in respect of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APS.any Tax; (iii) no material deficiencies for any Taxes

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Paying Agent that: (1a) the Trust is duly organized and is a validly existing as a business trust in good standing under the laws of The Commonwealth the State of Massachusetts, Delaware and has full power under the Trust Agreement to execute and deliver this Agreement and to authorize, create and issue the shares of APSTrENDS; (2) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3b) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation agreement of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4c) the forms form of the certificates certificate evidencing the shares of each series of APS comply TrENDS complies with all applicable laws of The Commonwealth the State of MassachusettsDelaware; (5d) the shares of each series of APS TrENDS have been duly and validly authorized authorized, executed and delivered by the Trust and, upon completion of and are validly issued; (e) the initial offer and sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be TrENDS has been registered under the Securities Act of 1933, as amended, amended and the Trust has been registered under the Investment Company Act and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been takenTrENDS; (7f) the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS TrENDS do not and will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the TrustAgreement, any law or regulation applicable to the Trustregulation, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is bound; and (8) g) no taxes are payable upon or in respect of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APSTrENDS.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Agent that: (1i) the Trust is duly organized and is validly existing as a business trust in good standing under the laws of The Commonwealth of Massachusetts, and has full power to execute and deliver this Agreement and to authorize, create and issue the shares of APS; (2ii) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3iii) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4iv) the forms of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5v) the shares of each series of APS have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6vi) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been taken; (7vii) the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS do not and will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the TrustStatement, any law or regulation applicable to the Trust, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is bound; and (8) viii) no taxes are payable upon or in respect of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APS.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Agent Company as of the date of this Agreement and except as provided in Section 5.1(e), as of the Closing that: (1a) the The Trust is has been duly organized and is validly existing as a business trust in good standing under the laws of the State of New York. The Commonwealth of Massachusetts, Trust has all requisite power and has full power authority to execute and deliver this Agreement, the Amended Supplemental Agreement and the Escrow Agreement and to authorize, create consummate the transactions contemplated hereby and issue the shares of APS; (2) thereby. The Trustees have all requisite power and authority to execute and deliver the Trust is registered with Amendment. The execution and delivery of this Agreement, the Securities Amended Supplemental Agreement, the Trust Amendment and Exchange Commission under the Investment Company Act Escrow Agreement, and the consummation of 1940the transactions contemplated hereby and thereby, as amended, as a closed-end, non-diversified, management investment company; (3) this Agreement has have been duly and validly authorizedauthorized by the Trust or the Trustees, as the case may be, and no other proceedings on the part of the Trust or the Trustees, as the case may be, are necessary to authorize the execution and delivery of such agreements or, except for obtaining the concurrence of the SCB and the Futures Representative as provided in Sections 6.1(b) and 6.2(b) and the issuance and effectiveness of the Order as provided in Sections 6.1(c) and 6.2(c), the consummation of the transactions contemplated hereby and thereby. (b) This Agreement has been (and the Amended Supplemental Agreement, the Escrow Agreement and the Trust Amendment when delivered will have been) duly executed and delivered by the Trust or the Trustees, as the case may be, and this Agreement constitutes (and each of the legalAmended Supplemental Agreement, Trust Amendment and the Escrow Agreement when executed and delivered will constitute) a valid and legally binding obligation of the TrustTrust or the Trustees, as the case may be, enforceable against the Trust or the Trustees, as the case may be, in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization fraudulent transfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors' rights and to general equitable equity principles;. (4c) the forms None of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery by the Trust of this Agreement, the Amended Supplemental Agreement or will be required in connection with the issuance of the shares of APSEscrow Agreement, except such action as required by applicable state securities laws, all of which action will have been taken; (7) the execution and delivery of this Agreement and by the issuance and delivery Trustees of the shares Trust Amendment, the consummation by the Trust or the Trustees, as the case may be, of each series the transactions contemplated hereby and thereby nor compliance by the Trust with the terms and conditions of APS do not and such agreements will not (A) conflict with, violate, with or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws require any consent or waiver under, any of the Trustterms, obligations, covenants, conditions or provisions of (i) any law indenture, mortgage, deed of trust, pledge, bank loan or regulation applicable to the Trust, any order or decree of any court or public authority having jurisdiction over the Trustcredit agreement, or any mortgage, indenture, contract, other agreement or undertaking instrument to which the Trust is a party or by which it is boundor its assets may be bound (other than the Trust Agreement) or (ii) the Trust Agreement or (B) conflict with or result in a breach of, or require any consent or waiver under any of the terms, conditions or provisions of any statute, judgment, order, writ, injunction, decree, rule or regulation of any Governmental Agency, subject to the Trust's obtaining the concurrence of the SCB and the Futures Representative as provided in Sections 6.1(b) and 6.2(b) and the issuance and effectiveness of the Order as provided by Sections 6.1(c) and 6.2(c); andand except in the case of (A)(i) or (B) for any such conflict, breach or default that would not prevent or materially delay the consummation of the transactions contemplated hereby and would not be reasonably expected to, individually or in the aggregate, have a material adverse effect on the Trust. (8) d) All necessary licenses, permits, consents, approvals, authorizations, qualifications and orders of Governmental Agencies (if any) and other persons required to be received by the Trust in order to consummate the transactions contemplated hereby have been received by the Trust, except those listed on Schedule 5.1(d) and except for those which the failure to receive would not prevent or materially delay the consummation of the transactions contemplated hereby. (e) Except as set forth on Schedule 5.1(e), (i) the Trust has filed all material Tax Returns required to be filed by it with any taxing authority in accordance with all applicable laws, has timely paid all Taxes required to be paid by it with respect to such Tax Returns and all such Tax Returns were true, correct and complete in all material respects; (ii) to the knowledge of the Trust there is no taxes are payable upon action, suit, proceeding, investigation, audit or claim pending or threatened, against or with respect to the Trust in respect of any Tax; (iii) no material deficiencies for any Taxes have been proposed, asserted or assessed against the execution Trust that have not been fully paid; (iv) the Trust has not (A) waived any statute of this Agreement limitations with respect to Taxes or will be payable upon or in (B) agreed to any extension of time within which to file any Tax Return since January 1, 1998; (v) since January 1, 1995, the Trust has not entered into any closing agreement with respect to Taxes pursuant to Section 7121 of the issuance Code or any predecessor provision or any similar provision of state, local or foreign Tax law; (vi) no claim has been made in writing and provided to the Trust by a taxing authority in a jurisdiction where the Trust does not file Tax Returns to the effect that the Trust is or may be subject to Taxation by that jurisdiction; and (vii) as of the date hereof and as of immediately prior to the Closing, none of the trustees of the Trust (a) has ever been employed by the Company or any of its affiliates in any capacity, except that one or more Trustees serve or have served on the Board of Directors of the Company from time to time, (b) is affiliated with a significant customer of, or supplier to, the Company or any of its affiliates, or (c) except for shares of each series Company Common Stock (as defined in the Merger Agreement) owned of APSrecord by the Trust or stock owned indirectly through mutual funds, owns, or has owned during the period such Trustee has been a Trustee of the Trust, any stock or securities in the Company or any of its affiliates.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Agent thatAdviser and the Subadviser as follows: (1a) the The Trust is a statutory trust duly organized formed and is validly existing as a business trust in good standing under the laws of The Commonwealth the State of Massachusetts, and has full Delaware with the power to execute own and deliver this Agreement possess its assets and carry on its business as it is now being conducted and as proposed to authorize, create and issue the shares of APSbe conducted hereunder; (2b) the The Trust is registered as an investment company under the 1940 Act and has elected to qualify and has qualified, or will qualify upon commencement of operations, together with the Securities and Exchange Commission under the Investment Company Act of 1940, as amendedFund, as a closed-endregulated investment company under the Code, non-diversifiedand the Fund’s shares are, management investment company; (3) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4) the forms of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issuedprior to commencement of operations, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933Act; (c) The Trust is in material compliance with applicable laws, as amended, rules and no further action by or before any governmental body or authority of the United States or of any state thereof is required regulations in connection with the execution operation of the Fund and the offering of share of the Fund and has made any required filings in connection therewith; (d) The execution, delivery and performance by the Trust of this Agreement or will be required in connection with are within the issuance Trust’s powers and have been duly authorized by all necessary action on the part of the shares Trust and its Board of APSTrustees, except such and no action as by, or in respect of, or filing with, any governmental body, agency or official is required on the part of the Trust for the execution, delivery and performance by applicable state securities lawsthe Trust of this Agreement, all of which action will have been taken; (7) and the execution execution, delivery and delivery performance by the Trust of this Agreement and the issuance and delivery of the shares of each series of APS do not and will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, contravene or constitute a default underunder (i) any provision of applicable law, the Declaration of Trust rule or the Amended By-Laws of regulation, (ii) the Trust’s governing instruments, or (iii) any law agreement, judgment, injunction, order, decree or regulation applicable to other instrument binding upon the Trust, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is bound; and (8) no taxes are payable upon or in respect e) The Trust acknowledges that it received a copy of the Subadviser’s Form ADV prior to the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APSAgreement.

Representations and Warranties of the Trust. The Trust represents ------------------------------------------- and warrants to the Auction Agent Company as of the date of this Agreement and as of the Closing that: (1a) the The Trust is has been duly organized and is validly existing as a business trust in good standing under the laws of the State of New York. The Commonwealth of Massachusetts, Trust has all requisite power and has full power authority to execute and deliver this Agreement and to authorizeconsummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Trust, create and issue no other proceedings on the shares part of APS;the Trust are necessary to authorize the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby. (2b) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3) this This Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, a valid and binding obligation of the Trust, Trust enforceable against the Trust in accordance with its terms. (c) The Trust has good and valid title to the Shares, free and clear of all Liens. At the Closing, good and valid title to the Shares will pass to the Company, free and clear of all Liens. The Shares are not subject as to such enforceability to bankruptcyany voting trust agreement or other contract, insolvencyagreement, reorganization and other laws of general applicability arrangement, commitment or understanding, including, without limitation, any contract, agreement, arrangement, commitment or understanding relating to the voting, dividend rights or affecting creditors' disposition of the Shares, except for certain rights set forth in the Second Amended and to general equitable principles;Restated Supplemental Agreement, dated as of April 5, 1986 between the Company and the Trust. (4d) the forms of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS have been duly and validly authorized by Except as set forth in this Agreement, the Trust andmakes and has made no other representations or warranties, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action by express or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been taken; (7) the execution and delivery of this Agreement and the issuance and delivery of the shares of each series of APS do not and will not conflict with, violate, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, the Declaration of Trust or the Amended By-Laws of the Trust, any law or regulation applicable to the Trust, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is bound; and (8) no taxes are payable upon or in respect of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APSimplied.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Agent thatand in favour of Big Rock as follows, and acknowledges that Big Rock is relying upon such representations and warranties: (1a) the Trust is a trust duly organized settled and is validly existing as a business trust in good standing under the laws of The Commonwealth of MassachusettsAlberta and has the power and capacity, to enter into this Agreement, and has full power to execute and deliver this Agreement and to authorize, create and issue the shares of APSperform its obligations hereunder; (2b) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; presently has ten (310) this Agreement has been duly and validly authorized, executed and delivered outstanding Trust Units which are held by the Trust and constitutes the legal, valid and binding obligation settlor of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4) the forms of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been taken; (7c) the execution and delivery of this Agreement and all documents to be delivered pursuant hereto and the issuance and delivery completion of the shares of each series of APS transactions contemplated hereby: (i) do not and will not result in the breach of, or violate any term or provision of, the governing documents of the Trust; (ii) except as previously disclosed in writing to Big Rock, do not, and will not as of the Effective Date, conflict with, violate, or result in a the breach of, the terms, conditions or provisions of, or constitute a default under, or accelerate or permit the Declaration of Trust or the Amended By-Laws acceleration of the Trustperformance required by, any law agreement, instrument, license, permit or regulation applicable to the Trust, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is boundbound and which is material to the Trust or to which any material property of the Trust is subject, or result in the creation of any encumbrance upon any of the assets of the Trust under any such agreement, instrument, license, permit or authority, or give to any Person any interest or right, including rights of purchase, termination, cancellation or acceleration, under any such agreement, instrument, license, permit or authority; and (8) iii) do not, and will not as of the Effective Date, violate any provision of law or administrative regulation or any judicial or administrative order, award, judgment or decree applicable and known to the Trust, the breach of which would have a material adverse effect on the Trust; d) there are no taxes are payable upon actions, suits, proceedings, claims or investigations commenced or, to the knowledge of the Trust, contemplated or threatened against or affecting the Trust in law or in respect equity before or by any domestic or foreign government department, commission, board, bureau, court, agency, arbitrator, or instrumentality of any kind, nor, to the knowledge of the Trust, are there any facts which may reasonably be expected to be a proper basis for any actions, suits, proceedings or investigations; e) the Trust has no subsidiaries other than AcquisitionCo and the Trust owns all of the issued and outstanding shares of AcquisitionCo; f) the execution and delivery of this Agreement or will be payable upon or in respect and the completion of the issuance transactions contemplated hereby have been duly approved by the trustee of the shares Trust and this Agreement constitutes a valid and binding obligation of each series the Trust enforceable in accordance with its terms; g) except as contemplated by this Agreement or the Information Circular, the Trust is under no obligation, contractual or otherwise, to issue any Trust Units or other securities; h) the Trust Indenture dated November 18, 2002 between Big Rock, the trustee and the settlor relating to the creation of APSthe Trust presented to Big Rock is a true and complete copy and remains unamended; i) the books of account and other records of the Trust whether of a financial or accounting nature or otherwise, have been maintained in accordance with prudent business practices; and j) the Trust has not carried on any business since it was settled other than as provided for herein or as contemplated in the Information Circular.

Representations and Warranties of the Trust. The Trust represents Trust, on behalf of Acorn, represents, warrants and warrants to the Auction Agent agrees that: (1i) the Trust is duly organized it has full legal right, power and is validly existing as a business trust in good standing under the laws of The Commonwealth of Massachusettsauthority to execute, deliver and perform this Agreement, and has full power to execute and deliver this Agreement and to authorizeconsummate the transactions contemplated hereby, create and issue the shares of APS; (2) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4) the forms of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been taken; (7ii) the execution and delivery of this Agreement Agreement, and the issuance and delivery consummation by Acorn of the shares transactions contemplated hereby have been duly authorized by all necessary action, (iii) the Trust was formerly known as the Acorn Investment Trust and Acorn was formerly known as the series Acorn Fund, and each of each the Trust and Acorn holds all respective right, title and interest to the Acorn Agreements, and all related matters, previously held by the Acorn Investment Trust and the series Acorn Fund, respectively, and (iv) this Agreement constitutes valid, legal and binding obligations of APS do not and will the Trust, enforceable against it in accordance with its terms, except as such enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium (whether general or specific) or other laws now or hereafter in effect. The performance of the terms of this Agreement shall not conflict with, violate, or result in constitute a breach of, the terms, conditions or provisions violation of, or constitute a default require any notice or consent under, the Declaration organizational documents of the Trust or any agreement or instrument to which the Amended By-Laws Trust or Acorn is a party or by which Acorn is bound, and shall not require any consent, approval or notice under any provision of the Trustany judgment, any law order, decree, statute, rule or regulation applicable to the Trust; (b) it holds all right, title and interest to the Debentures and the Warrant as well as to any order and all claims, whether arising under the Acorn Agreements or decree otherwise, it ever held or holds against the Company or its subsidiaries and affiliates, and it has not transferred, conveyed, sold or otherwise disposed of any court of the Debentures or public authority having jurisdiction over such claims, or entered into any agreement to do any of the foregoing; (c) upon receipt of the Payment, it shall have no right to receive any shares of Common Stock or other securities of the Company or any other payments from the Company; (d) in making the determination to enter into this Agreement, the Trust, on behalf of Acorn, has not relied on any statements made or information provided by Xxxxx X. Xxxx, Xxxxxxx Xxxx, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is boundother officer of Tidel; and (8) no taxes e) it acknowledges the possibility that greater value might be realized by Acorn in the future for the Debentures, the Warrants, and the other Acorn Agreements, if Acorn retained such securities and rights, but that there are payable upon or significant future uncertainties regarding the Company and its operations, and Acorn has made the business decision to enter into the transaction set forth in respect of the execution of this Agreement or will be payable upon or in respect of the issuance of the shares of each series of APSbased on its business judgment and internal requirements.

Representations and Warranties of the Trust. The Trust represents and warrants to the Auction Agent thatand in favour of Baytex, AcquisitionCo, ExchangeCo, Crew, Baytex Resources and Baytex Exploration as follows, and acknowledges that Baytex, AcquisitionCo, ExchangeCo, Crew, Baytex Resources and Baytex Exploration are relying upon such representations and warranties: (1a) the Trust is a trust duly organized settled and is validly existing as a business trust in good standing under the laws of The Commonwealth of MassachusettsAlberta and has the power and capacity to enter into this Agreement, and has full power to execute and deliver this Agreement and to authorize, create and issue the shares of APSperform its obligations hereunder; (2) the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, as a closed-end, non-diversified, management investment company; (3) this Agreement has been duly and validly authorized, executed and delivered by the Trust and constitutes the legal, valid and binding obligation of the Trust, enforceable against the Trust in accordance with its terms, subject as to such enforceability to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles; (4) the forms of the certificates evidencing the shares of each series of APS comply with all applicable laws of The Commonwealth of Massachusetts; (5) the shares of each series of APS have been duly and validly authorized by the Trust and, upon completion of the initial sale of the shares of such series of APS and receipt of payment therefor, will be validly issued, fully paid and nonassessable; (6) at the time of the offering of the shares of each series of APS, the shares offered will be registered under the Securities Act of 1933, as amended, and no further action by or before any governmental body or authority of the United States or of any state thereof is required in connection with the execution and delivery of this Agreement or will be required in connection with the issuance of the shares of APS, except such action as required by applicable state securities laws, all of which action will have been taken; (7b) the execution and delivery of this Agreement and all documents to be delivered pursuant hereto and the issuance and delivery completion of the shares of each series of APS transactions contemplated hereby: (i) do not and will not result in the breach of, or violate any term or provision of, the governing documents of the Trust; (ii) except as previously disclosed in writing to Baytex or Crew, do not, and will not as of the Effective Date, conflict with, violate, or result in a the breach of, the terms, conditions or provisions of, or constitute a default under, or accelerate or permit the Declaration of Trust or the Amended By-Laws acceleration of the Trustperformance required by, any law agreement, instrument, license, permit or regulation applicable to the Trust, any order or decree of any court or public authority having jurisdiction over the Trust, or any mortgage, indenture, contract, agreement or undertaking to which the Trust is a party or by which it is boundbound and which is material to the Trust or to which any material property of the Trust is subject, or result in the creation of any encumbrance upon any of the assets of the Trust under any such agreement, instrument, license, permit or authority, or give to any Person any interest or right, including rights of purchase, termination, cancellation or acceleration, under any such agreement, instrument, license, permit or authority; and (8) iii) do not, and will not as of the Effective Date, violate any provision of law or administrative regulation or any judicial or administrative order, award, judgment or decree applicable and known to the Trust, the breach of which would have a material adverse effect on the Trust; (c) there are no taxes are payable upon actions, suits, proceedings, claims or investigations commenced or, to the knowledge of the Trust, contemplated or threatened against or affecting the Trust in law or in respect equity before or by any domestic or foreign government department, commission, board, bureau, court, agency, arbitrator, or instrumentality of any kind, nor, to the knowledge of the Trust, are there any facts which may reasonably be expected to be a proper basis for any actions, suits, proceedings or investigations; (d) the Trust has no subsidiaries other than AcquisitionCo and ExchangeCo, and the Trust owns all issued and outstanding shares of AcquisitionCo and ExchangeCo; (e) the execution and delivery of this Agreement or will be payable upon or in respect and the completion of the issuance transactions contemplated hereby have been duly approved by the board of trustees of the shares Trust and this Agreement constitutes a valid and binding obligation of each series the Trust enforceable in accordance with its terms; (f) a total of APSone (1) Trust Unit is issued and outstanding and, except as contemplated by this Agreement, the Trust is under no obligation, contractual or otherwise, to issue any Trust Units or other securities; and (g) the Trust has not carried on any activity since it was settled other than as provided for herein.