Designation by Dealer. Notwithstanding any other provision of this Master Confirmation or any Supplemental Confirmation to the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any Shares or other securities to or from Counterparty, Dealer may designate any of its affiliates to purchase, sell, receive or deliver such Shares or other securities and otherwise to perform Dealer’s obligations in respect of any Transaction and any such designee may assume such obligations. Dealer shall be discharged of its obligations to Counterparty only to the extent of any such performance.1 1 Dealer boilerplate to be updated, as applicable. Counterparty hereby agrees (a) to check this Master Confirmation carefully and promptly upon receipt so that errors or discrepancies can be promptly identified and rectified and (b) to confirm that the foregoing (in the exact form provided by Dealer) correctly sets forth the terms of the agreement between Dealer and Counterparty hereunder, by manually signing this Master Confirmation or this page hereof as evidence of agreement to such terms and providing the other information requested herein and promptly returning an executed copy to us. Yours faithfully, [DEALER] By: Name: Title: AGREE REALTY CORPORATION By: Name: Title: Axxxxx and accepted with respect to Sections 5 and 9 hereof and Axxxx A hereto by AGREE LIMITED PARTNERSHIP By: Agree Realty Corporation, as the sole general partner By: Name: Title: If Counterparty delivers Unregistered Settlement Shares pursuant to Section 12 above (a “Private Placement Settlement”), then: (a) all Unregistered Settlement Shares shall be delivered to Dealer (or any affiliate of Dealer designated by Dealer) pursuant to the exemption from the registration requirements of the Securities Act provided by Section 4(a)(2) thereof; (b) as of or prior to the date of delivery, Dealer and any potential purchaser of any such shares from Dealer (or any affiliate of Dealer designated by Dealer) identified by Dealer shall be afforded a commercially reasonable opportunity to conduct a due diligence investigation with respect to Counterparty customary in scope for private placements of equity securities of similar size (including, without limitation, the right to have made available to them for inspection all financial and other records, pertinent corporate documents and other information reasonably requested by them); provided that prior to receiving or being granted access to any such information, Dealer, such affiliate of Dealer or such potential purchaser, as the case may be, may be required by Counterparty to enter into a customary nondisclosure agreement with Counterparty in respect of any such due diligence investigation; (c) as of the date of delivery, Counterparty and the Operating Partnership shall enter into an agreement (a “Private Placement Agreement”) with Dealer (or any affiliate of Dealer designated by Dealer) in connection with the private placement of such shares by Counterparty to Dealer (or any such affiliate) and the private resale of such shares by Dealer (or any such affiliate), substantially similar to private placement purchase agreements customary for private placements of equity securities of similar size, in form and substance commercially reasonably satisfactory to Dealer, which Private Placement Agreement shall include, without limitation, provisions substantially similar to those contained in such private placement purchase agreements relating, without limitation, to the indemnification of, and contribution in connection with the liability of, Dealer and its affiliates and obligations to use best efforts to obtain customary opinions, accountants’ comfort letters and lawyers’ negative assurance letters, and shall provide for the payment by Counterparty of all commercially reasonable fees and expenses in connection with such resale, including all commercially reasonable fees and expenses of counsel for Dealer, and shall contain representations, warranties, covenants and agreements of Counterparty reasonably necessary or advisable to establish and maintain the availability of an exemption from the registration requirements of the Securities Act for such resales; and (d) in connection with the private placement of such shares by Counterparty to Dealer (or any such affiliate) and the private resale of such shares by Dealer (or any such affiliate), Counterparty shall, if so requested by Dealer, prepare, in cooperation with Dealer, a private placement memorandum in form and substance reasonably satisfactory to Dealer. In the case of a Private Placement Settlement, Dealer shall, in its good faith discretion, adjust the amount of Unregistered Settlement Shares to be delivered to Dealer hereunder in a commercially reasonable manner to reflect the fact that such Unregistered Settlement Shares may not be freely returned to securities lenders by Dealer and may only be saleable by Dealer at a discount to reflect the lack of liquidity in Unregistered Settlement Shares. If Counterparty delivers any Unregistered Settlement Shares in respect of a Transaction, Counterparty agrees that (i) such Shares may be transferred by and among Dealer and its affiliates and (ii) after the applicable “holding period” within the meaning of Rule 144(d) under the Securities Act has elapsed after the applicable Settlement Date, Counterparty shall promptly remove, or cause the transfer agent for the Shares to remove, any legends referring to any transfer restrictions from such Shares upon delivery by Dealer (or such affiliate of Dealer) to Counterparty or such transfer agent of any seller’s and broker’s representation letters customarily delivered by Dealer or its affiliates in connection with resales of restricted securities pursuant to Rule 144 under the Securities Act, each without any further requirement for the delivery of any certificate, consent, agreement, opinion of counsel, notice or any other document, any transfer tax stamps or payment of any other amount or any other action by Dealer (or such affiliate of Dealer). To: Agree Realty Corporation From: [DEALER] Re: Issuer Share Forward Sale Transaction Date: [ ], 20[ ] Ladies and Gentlemen: The purpose of this Supplemental Confirmation is to confirm the terms and conditions of the Transaction entered into between [DEALER] (“Dealer”) and Agree Realty Corporation (“Counterparty”) (together, the “Contracting Parties”) on the Trade Date specified below. This Supplemental Confirmation is a binding contract between Dealer and Counterparty as of the relevant Trade Date for the Transaction referenced below. 1. This Supplemental Confirmation supplements, forms part of, and is subject to the Master Confirmation dated as of October 25, 2024 (the “Master Confirmation”) between the Contracting Parties, as amended and supplemented from time to time. All provisions contained in the Master Confirmation govern this Supplemental Confirmation except as expressly modified below. 2. The terms of the Transaction to which this Supplemental Confirmation relates are as follows: Trade Date: [ ], 20[ ] Effective Date: [ ], 20[ ] Maturity Date: [ ], 20[ ] Number of Shares: [ ] Initial Forward Price: USD [ ] Spread: [ . ]% Volume-Weighted Hedge Price: USD [ ] Threshold Price: USD [ ] Initial Stock Loan Rate: [ ] basis points per annum Maximum Stock Loan Rate: [ ] basis points per annum Threshold Number of Shares: [ ] Counterparty hereby agrees (a) to check this Supplemental Confirmation carefully and promptly upon receipt so that errors or discrepancies can be promptly identified and rectified and (b) to confirm that the foregoing (in the exact form provided by Dealer) correctly sets forth the terms of the agreement between Dealer and Counterparty hereunder, by manually signing this Supplemental Confirmation or this page hereof as evidence of agreement to such terms and providing the other information requested herein and promptly returning an executed copy to us. Yours faithfully, [DEALER] By: Name: Title: AGREE REALTY CORPORATION By: Name: Title: Forward Price Reduction Date: Forward Price Reduction Amount: [ ], 20[ ] USD [ ] [ ], 20[ ] USD [ ] [ ], 20[ ] USD [ ] [ ], 20[ ] USD [ ] For any calendar month ending on or prior to [ ]: USD[ ] For any calendar month ending after [ ]: USD[ ] , 20[ · ] [ · ]1 Ladies and Gentlemen: Agree Realty Corporation (the “Company”) proposes, subject to the terms and conditions set forth herein and in the Equity Distribution Agreement, dated October 25, 2024 (the “Equity Distribution Agreement”), among the Company, Agree Limited Partnership (the “Operating Partnership”) and Wxxxx Fargo Securities, LLC, BofA Securities, Inc., BTIG, LLC, Citigroup Global Markets Inc., Evercore Group L.L.C., Jxxxxxxxx LLC, J.X. Xxxxxx Securities LLC, Mizuho Securities USA LLC, Mxxxxx Sxxxxxx & Co. LLC, Rxxxxxx Jxxxx & Associates, Inc., Regions Securities LLC, Rxxxxx X. Xxxxx & Co. Incorporated, Sxxxxx, Xxxxxxxx & Company, Incorporated, each as “Agent,” Nomura Securities International, Inc. (acting through BTIG, LLC as its agent), as Forward Seller and Wxxxx Fargo, National Association, Bank of America, N.A., Citibank, N.A. (or an affiliate thereof), Jxxxxxxxx LLC, JPMorgan Chase Bank, National Association, Mxxxxx Sxxxxxx & Co. LLC, Nomura Global Financial Products, Inc., Rxxxxxx Jxxxx & Associates, Inc., Regions Securities LLC and Sxxxxx, Xxxxxxxx & Company, Incorporated, each as Forward Purchaser, to issue and sell to the undersigned, as principal (the “Principal”) for resale the shares of the Company’s Common Stock specified in the Schedule attached hereto (the “Purchased Shares”). [The Company also proposes to issue and sell to the Principal the additional shares of Common Stock, specified in the Schedule attached hereto (“Additional Shares”), if and to the extent that the Principal shall have determined to exercise its right to purchase such Additional Shares.] Subject to the terms and conditions set forth herein and in the Equity Distribution Agreement, which are incorporated herein by reference, the Company agrees to issue and sell to the Principal and the latter agrees to purchase from the Company the Purchased Shares at the Time of Delivery and Closing Location (each as set forth in the Schedule attached hereto) and at the purchase price (“Purchase Price”) set forth in the Schedule attached hereto. [In addition, the Company agrees to sell to the Principal the Additional Shares, and the Principal shall have the right to purchase up to [ · ] Additional Shares at the Purchase Price, provided, however, that the amount paid by the Principal for any Additional Shares shall be reduced by an amount per Share equal to any dividends declared by the Company and payable on the Purchased Shares but not payable on such Additional Shares. The Principal may exercise this right, in whole or from time to time in part by giving written notice to the Company not later than 30 days after the date of this Terms Agreement. Any exercise notice shall specify the number of Additional Shares to be purchased by the Principal and the date on which such Additional Shares are to be purchased (such date and time being herein referred to as the “Option Settlement Date”). Each Option Settlement Date must be at least one business day after the written notice is given and may not be earlier than the Time of Delivery for the Purchased Shares set forth in the Schedule attached hereto, nor later than ten business days after the date of such notice. Payment of the Purchase Price for the Additional Shares shall be made at the Option Settlement Date in the same manner and at the same location as the payment for the Purchased Shares.] 1 To be name and address of the applicable Agent. The Purchased Shares [and the Additional Shares] shall be registered in such names and in such denominations as the Principal shall request in writing not later than one full business day prior to the Time of Delivery [or the applicable Option Settlement Date, as the case may be.] The Purchased Shares [and the Additional Shares] shall be delivered to the Principal at the Time of Delivery [or an Option Settlement Date, as the case may be,] with any transfer taxes payable in connection with the transfer of the Shares to the Principal duly paid, against payment of the Purchase Price therefor. All capitalized terms used herein and not otherwise defined shall have the respective meanings assigned to them in the Equity Distribution Agreement. Each of the provisions of the Equity Distribution Agreement not specifically related to the solicitation by the Principal, as agent of the Company, of offers to purchase Shares is incorporated herein by reference in its entirety, and shall be deemed to be part of this Terms Agreement to the same extent as if such provisions had been set forth in full herein. Each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Terms Agreement and the Time of Delivery [and any Option Settlement Date], except that each representation and warranty in Section 6 of the Equity Distribution Agreement which makes reference to the Prospectus (as therein defined) shall be deemed to be a representation and warranty as of the date of the Equity Distribution Agreement in relation to the Prospectus, and also a representation and warranty as of the date of this Terms Agreement[,] [and] the Time of Delivery [and any Option Settlement Date] in relation to the Prospectus as amended and supplemented to relate to the Purchased Shares [and the Additional Shares]. An amendment to the Registration Statement (as defined in the Equity Distribution Agreement), or a supplement to the Prospectus, as the case may be, relating to the Purchased Shares [and the Additional Shares], in the form heretofore delivered to the Principal is now proposed to be filed with the Securities and Exchange Commission, and will be filed promptly. This Terms Agreement and any claim, controversy or dispute arising under or related to this Terms Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to its choice of law provisions. If the foregoing is in accordance with your understanding, please sign and return to us a counterpart hereof, whereupon this Terms Agreement, including those provisions of the Equity Distribution Agreement incorporated herein by reference, shall constitute a binding agreement between the Principal, the Operating Partnership and the Company. AGREE REALTY CORPORATION, By: Name: Title: AGREE LIMITED PARTNERSHIP By: Name: Title: ACCEPTED as of the date first above written: [ · ]2, Name: Title: 2 To be name of the applicable Principal. Common Stock, par value $0.0001 per share [ · ] [ · ]] [ · ] [ · ] By wire transfer to a bank account specified by the Company in same day funds.
Appears in 1 contract
Designation by Dealer. Notwithstanding any other provision of this Master Confirmation or any Supplemental Confirmation to the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any Shares or other securities to or from Counterparty, Dealer may designate any of its affiliates to purchase, sell, receive or deliver such Shares or other securities and otherwise to perform Dealer’s obligations in respect of any Transaction and any such designee may assume such obligations. Dealer shall be discharged of its obligations to Counterparty only to the extent of any such performance.1 1 performance.5 5 Dealer boilerplate to be updated, as applicable. Counterparty hereby agrees (a) to check this Master Confirmation carefully and promptly upon receipt so that errors or discrepancies can be promptly identified and rectified and (b) to confirm that the foregoing (in the exact form provided by Dealer) correctly sets forth the terms of the agreement between Dealer and Counterparty hereunder, by manually signing this Master Confirmation or this page hereof as evidence of agreement to such terms and providing the other information requested herein and promptly returning an executed copy to us. Yours faithfully, [DEALER] By: Name: Title: AGREE REALTY CORPORATION [Signature Page to the Forward Sale Confirmation] RLJ LODGING TRUST By: Name: Title: Axxxxx Xxxxxx and accepted with respect to Sections 5 and 9 hereof and Axxxx Xxxxx A hereto by AGREE LIMITED PARTNERSHIP RLJ LODGING TRUST, L.P. By: Agree Realty CorporationRLJ Lodging Trust, as the sole general partner By: Name: Title: [Signature Page to the Forward Sale Confirmation] If Counterparty delivers Unregistered Settlement Shares pursuant to Section 12 above (a “Private Placement Settlement”), then:
(a) all Unregistered Settlement Shares shall be delivered to Dealer (or any affiliate of Dealer designated by Dealer) pursuant to the exemption from the registration requirements of the Securities Act provided by Section 4(a)(2) thereof;
(b) as of or prior to the date of delivery, Dealer and any potential purchaser of any such shares from Dealer (or any affiliate of Dealer designated by Dealer) identified by Dealer shall be afforded a commercially reasonable opportunity to conduct a due diligence investigation with respect to Counterparty customary in scope for private placements of equity securities of similar size (including, without limitation, the right to have made available to them for inspection all financial and other records, pertinent corporate documents and other information reasonably requested by them); provided that prior to receiving or being granted access to any such information, Dealer, such affiliate of Dealer or such potential purchaser, as the case may be, may be required by Counterparty to enter into a customary nondisclosure agreement with Counterparty in respect of any such due diligence investigation;
(c) as of the date of delivery, Counterparty and the Operating Partnership shall enter into an agreement (a “Private Placement Agreement”) with Dealer (or any affiliate of Dealer designated by Dealer) in connection with the private placement of such shares by Counterparty to Dealer (or any such affiliate) and the private resale of such shares by Dealer (or any such affiliate), substantially similar to private placement purchase agreements customary for private placements of equity securities of similar size, in form and substance commercially reasonably satisfactory to Dealer, which Private Placement Agreement shall include, without limitation, provisions substantially similar to those contained in such private placement purchase agreements relating, without limitation, to the indemnification of, and contribution in connection with the liability of, Dealer and its affiliates and obligations to use best efforts to obtain customary opinions, accountants’ comfort letters and lawyers’ negative assurance letters, and shall provide for the payment by Counterparty of all commercially reasonable fees and expenses in connection with such resale, including all commercially reasonable fees and expenses of counsel for Dealer, and shall contain representations, warranties, covenants and agreements of Counterparty reasonably necessary or advisable to establish and maintain the availability of an exemption from the registration requirements of the Securities Act for such resales; and
(d) in connection with the private placement of such shares by Counterparty to Dealer (or any such affiliate) and the private resale of such shares by Dealer (or any such affiliate), Counterparty shall, if so requested by Dealer, prepare, in cooperation with Dealer, a private placement memorandum in form and substance reasonably satisfactory to Dealer. In the case of a Private Placement Settlement, Dealer shall, in its good faith discretion, adjust the amount of Unregistered Settlement Shares to be delivered to Dealer hereunder in a commercially reasonable manner to reflect the fact that such Unregistered Settlement Shares may not be freely returned to securities lenders by Dealer and may only be saleable by Dealer at a discount to reflect the lack of liquidity in Unregistered Settlement Shares. If Counterparty delivers any Unregistered Settlement Shares in respect of a Transaction, Counterparty agrees that (i) such Shares may be transferred by and among Dealer and its affiliates and (ii) after the applicable “holding period” within the meaning of Rule 144(d) under the Securities Act has elapsed after the applicable Settlement Date, Counterparty shall promptly remove, or cause the transfer agent for the Shares to remove, any legends referring to any transfer restrictions from such Shares upon delivery by Dealer (or such affiliate of Dealer) to Counterparty or such transfer agent of any seller’s and broker’s representation letters customarily delivered by Dealer or its affiliates in connection with resales of restricted securities pursuant to Rule 144 under the Securities Act, each without any further requirement for the delivery of any certificate, consent, agreement, opinion of counsel, notice or any other document, any transfer tax stamps or payment of any other amount or any other action by Dealer (or such affiliate of Dealer). To: Agree Realty Corporation From: [DEALER] Re: Issuer Share Forward Sale Transaction Date: [ ], 20[ ] Ladies and Gentlemen: The purpose of this Supplemental Confirmation is to confirm the terms and conditions of the Transaction entered into between [DEALER] (“Dealer”) and Agree Realty Corporation (“Counterparty”) (together, the “Contracting Parties”) on the Trade Date specified below. This Supplemental Confirmation is a binding contract between Dealer and Counterparty as of the relevant Trade Date for the Transaction referenced below.
1. This Supplemental Confirmation supplements, forms part of, and is subject to the Master Confirmation dated as of October 25, 2024 (the “Master Confirmation”) between the Contracting Parties, as amended and supplemented from time to time. All provisions contained in the Master Confirmation govern this Supplemental Confirmation except as expressly modified below.
2. The terms of the Transaction to which this Supplemental Confirmation relates are as follows: Trade Date: [ ], 20[ ] Effective Date: [ ], 20[ ] Maturity Date: [ ], 20[ ] Number of Shares: [ ] Initial Forward Price: USD [ ] Spread: [ . ]% Volume-Weighted Hedge Price: USD [ ] Threshold Price: USD [ ] Initial Stock Loan Rate: [ ] basis points per annum Maximum Stock Loan Rate: [ ] basis points per annum Threshold Number of Shares: [ ] Counterparty hereby agrees (a) to check this Supplemental Confirmation carefully and promptly upon receipt so that errors or discrepancies can be promptly identified and rectified and (b) to confirm that the foregoing (in the exact form provided by Dealer) correctly sets forth the terms of the agreement between Dealer and Counterparty hereunder, by manually signing this Supplemental Confirmation or this page hereof as evidence of agreement to such terms and providing the other information requested herein and promptly returning an executed copy to us. Yours faithfully, [DEALER] By: Name: Title: AGREE REALTY CORPORATION By: Name: Title: Forward Price Reduction Date: Forward Price Reduction Amount: [ ], 20[ ] USD [ ] [ ], 20[ ] USD [ ] [ ], 20[ ] USD [ ] [ ], 20[ ] USD [ ] For any calendar month ending on or prior to [ ]: USD[ ] For any calendar month ending after [ ]: USD[ ] , 20[ · ] [ · ]1 Ladies and Gentlemen: Agree Realty Corporation (the “Company”) proposes, subject to the terms and conditions set forth herein and in the Equity Distribution Agreement, dated October 25, 2024 (the “Equity Distribution Agreement”), among the Company, Agree Limited Partnership (the “Operating Partnership”) and Wxxxx Fargo Securities, LLC, BofA Securities, Inc., BTIG, LLC, Citigroup Global Markets Inc., Evercore Group L.L.C., Jxxxxxxxx LLC, J.X. Xxxxxx Securities LLC, Mizuho Securities USA LLC, Mxxxxx Sxxxxxx & Co. LLC, Rxxxxxx Jxxxx & Associates, Inc., Regions Securities LLC, Rxxxxx X. Xxxxx & Co. Incorporated, Sxxxxx, Xxxxxxxx & Company, Incorporated, each as “Agent,” Nomura Securities International, Inc. (acting through BTIG, LLC as its agent), as Forward Seller and Wxxxx Fargo, National Association, Bank of America, N.A., Citibank, N.A. (or an affiliate thereof), Jxxxxxxxx LLC, JPMorgan Chase Bank, National Association, Mxxxxx Sxxxxxx & Co. LLC, Nomura Global Financial Products, Inc., Rxxxxxx Jxxxx & Associates, Inc., Regions Securities LLC and Sxxxxx, Xxxxxxxx & Company, Incorporated, each as Forward Purchaser, to issue and sell to the undersigned, as principal (the “Principal”) for resale the shares of the Company’s Common Stock specified in the Schedule attached hereto (the “Purchased Shares”). [The Company also proposes to issue and sell to the Principal the additional shares of Common Stock, specified in the Schedule attached hereto (“Additional Shares”), if and to the extent that the Principal shall have determined to exercise its right to purchase such Additional Shares.] Subject to the terms and conditions set forth herein and in the Equity Distribution Agreement, which are incorporated herein by reference, the Company agrees to issue and sell to the Principal and the latter agrees to purchase from the Company the Purchased Shares at the Time of Delivery and Closing Location (each as set forth in the Schedule attached hereto) and at the purchase price (“Purchase Price”) set forth in the Schedule attached hereto. [In addition, the Company agrees to sell to the Principal the Additional Shares, and the Principal shall have the right to purchase up to [ · ] Additional Shares at the Purchase Price, provided, however, that the amount paid by the Principal for any Additional Shares shall be reduced by an amount per Share equal to any dividends declared by the Company and payable on the Purchased Shares but not payable on such Additional Shares. The Principal may exercise this right, in whole or from time to time in part by giving written notice to the Company not later than 30 days after the date of this Terms Agreement. Any exercise notice shall specify the number of Additional Shares to be purchased by the Principal and the date on which such Additional Shares are to be purchased (such date and time being herein referred to as the “Option Settlement Date”). Each Option Settlement Date must be at least one business day after the written notice is given and may not be earlier than the Time of Delivery for the Purchased Shares set forth in the Schedule attached hereto, nor later than ten business days after the date of such notice. Payment of the Purchase Price for the Additional Shares shall be made at the Option Settlement Date in the same manner and at the same location as the payment for the Purchased Shares.] 1 To be name and address of the applicable Agent. The Purchased Shares [and the Additional Shares] shall be registered in such names and in such denominations as the Principal shall request in writing not later than one full business day prior to the Time of Delivery [or the applicable Option Settlement Date, as the case may be.] The Purchased Shares [and the Additional Shares] shall be delivered to the Principal at the Time of Delivery [or an Option Settlement Date, as the case may be,] with any transfer taxes payable in connection with the transfer of the Shares to the Principal duly paid, against payment of the Purchase Price therefor. All capitalized terms used herein and not otherwise defined shall have the respective meanings assigned to them in the Equity Distribution Agreement. Each of the provisions of the Equity Distribution Agreement not specifically related to the solicitation by the Principal, as agent of the Company, of offers to purchase Shares is incorporated herein by reference in its entirety, and shall be deemed to be part of this Terms Agreement to the same extent as if such provisions had been set forth in full herein. Each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Terms Agreement and the Time of Delivery [and any Option Settlement Date], except that each representation and warranty in Section 6 of the Equity Distribution Agreement which makes reference to the Prospectus (as therein defined) shall be deemed to be a representation and warranty as of the date of the Equity Distribution Agreement in relation to the Prospectus, and also a representation and warranty as of the date of this Terms Agreement[,] [and] the Time of Delivery [and any Option Settlement Date] in relation to the Prospectus as amended and supplemented to relate to the Purchased Shares [and the Additional Shares]. An amendment to the Registration Statement (as defined in the Equity Distribution Agreement), or a supplement to the Prospectus, as the case may be, relating to the Purchased Shares [and the Additional Shares], in the form heretofore delivered to the Principal is now proposed to be filed with the Securities and Exchange Commission, and will be filed promptly. This Terms Agreement and any claim, controversy or dispute arising under or related to this Terms Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to its choice of law provisions. If the foregoing is in accordance with your understanding, please sign and return to us a counterpart hereof, whereupon this Terms Agreement, including those provisions of the Equity Distribution Agreement incorporated herein by reference, shall constitute a binding agreement between the Principal, the Operating Partnership and the Company. AGREE REALTY CORPORATION, By: Name: Title: AGREE LIMITED PARTNERSHIP By: Name: Title: ACCEPTED as of the date first above written: [ · ]2, Name: Title: 2 To be name of the applicable Principal. Common Stock, par value $0.0001 per share [ · ] [ · ]] [ · ] [ · ] By wire transfer to a bank account specified by the Company in same day funds.
Appears in 1 contract
Designation by Dealer. Notwithstanding any other provision of this Master Confirmation or any Supplemental Confirmation to the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any Shares or other securities to or from Counterparty, Dealer may designate any of its affiliates to purchase, sell, receive or deliver such Shares or other securities and otherwise to perform Dealer’s obligations in respect of any Transaction and any such designee may assume such obligations. Dealer shall be discharged of its obligations to Counterparty only to the extent of any such performance.1 1 performance. [25.] 2 2 Dealer boilerplate to be updatedprovide, as applicablenecessary, language regarding regulatory scheme relevant to equity forwards in Dealer’s jurisdiction. Counterparty hereby agrees (a) to check this Master Confirmation carefully and promptly upon receipt so that errors or discrepancies can be promptly identified and rectified and (b) to confirm that the foregoing (in the exact form provided by Dealer) correctly sets forth the terms of the agreement between Dealer and Counterparty hereunder, by manually signing this Master Confirmation or this page hereof as evidence of agreement to such terms and providing the other information requested herein and promptly returning an executed copy to us. Yours faithfully, [DEALER] By: Name: Title: AGREE REALTY CORPORATION By: Name: Title: Axxxxx Agreed and accepted with respect to Sections 5 and 9 hereof and Axxxx A hereto by AGREE LIMITED PARTNERSHIP Byby: Agree Realty CorporationESSEX PROPERTY TRUST, as the sole general partner By: INC. Name: Title: If Counterparty delivers Unregistered Settlement Shares pursuant to Section 12 above (a “Private Placement Settlement”), then:
(a) all Unregistered Settlement Shares shall be delivered to Dealer (or any affiliate of Dealer designated by Dealer) pursuant to the exemption from the registration requirements of the Securities Act provided by Section 4(a)(2) thereof;
(b) as of or prior to the date of delivery, Dealer and any potential purchaser of any such shares from Dealer (or any affiliate of Dealer designated by Dealer) identified by Dealer shall be afforded a commercially reasonable opportunity to conduct a due diligence investigation with respect to Counterparty customary in scope for private placements of equity securities of similar size (including, without limitation, the right to have made available to them for inspection all financial and other records, pertinent corporate documents and other information reasonably requested by them); provided that prior to receiving or being granted access to any such information, Dealer, such affiliate of Dealer or such potential purchaser, as the case may be, may be required by Counterparty to enter into a customary nondisclosure agreement with Counterparty in respect of any such due diligence investigation;
(c) as of the date of delivery, Counterparty and the Operating Partnership shall enter into an agreement (a “Private Placement Agreement”) with Dealer (or any affiliate of Dealer designated by Dealer) in connection with the private placement of such shares by Counterparty to Dealer (or any such affiliate) and the private resale of such shares by Dealer (or any such affiliate), substantially similar to private placement purchase agreements customary for private placements of equity securities of similar size, in form and substance commercially reasonably satisfactory to Dealer, which Private Placement Agreement shall include, without limitation, provisions substantially similar to those contained in such private placement purchase agreements relating, without limitation, to the indemnification of, and contribution in connection with the liability of, Dealer and its affiliates and obligations to use best efforts to obtain customary opinions, accountants’ comfort letters and lawyers’ negative assurance letters, and shall provide for the payment by Counterparty of all commercially reasonable fees and expenses in connection with such resale, including all commercially reasonable fees and expenses of counsel for Dealer, and shall contain representations, warranties, covenants and agreements of Counterparty reasonably necessary or advisable to establish and maintain the availability of an exemption from the registration requirements of the Securities Act for such resales; and
(d) in connection with the private placement of such shares by Counterparty to Dealer (or any such affiliate) and the private resale of such shares by Dealer (or any such affiliate), Counterparty shall, if so requested by Dealer, prepare, in cooperation with Dealer, a private placement memorandum in form and substance reasonably satisfactory to Dealer. In the case of a Private Placement Settlement, Dealer shall, in its good faith discretion, adjust the amount of Unregistered Settlement Shares to be delivered to Dealer hereunder in a commercially reasonable manner to reflect the fact that such Unregistered Settlement Shares may not be freely returned to securities lenders by Dealer and may only be saleable by Dealer at a discount to reflect the lack of liquidity in Unregistered Settlement Shares. If Counterparty delivers any Unregistered Settlement Shares in respect of a Transaction, Counterparty agrees that (i) such Shares may be transferred by and among Dealer and its affiliates and (ii) after the applicable “holding period” within the meaning of Rule 144(d) under the Securities Act has elapsed after the applicable Settlement Date, Counterparty shall promptly remove, or cause the transfer agent for the Shares to remove, any legends referring to any transfer restrictions from such Shares upon delivery by Dealer (or such affiliate of Dealer) to Counterparty or such transfer agent of any seller’s and broker’s representation letters customarily delivered by Dealer or its affiliates in connection with resales of restricted securities pursuant to Rule 144 under the Securities Act, each without any further requirement for the delivery of any certificate, consent, agreement, opinion of counsel, notice or any other document, any transfer tax stamps or payment of any other amount or any other action by Dealer (or such affiliate of Dealer). To: Agree Realty Corporation Essex Property Trust, Inc. From: [DEALERName of Dealer] Re: Issuer Share Forward Sale Transaction Date: [ [_________], 20[ [__] Ladies and Gentlemen: The purpose of this Supplemental Confirmation is to confirm the terms and conditions of the Transaction entered into between [DEALERName of Dealer] (“Dealer”) and Agree Realty Corporation Essex Property Trust, Inc. (“Counterparty”) (together, the “Contracting Parties”) on the Trade Date specified below. This Supplemental Confirmation is a binding contract between Dealer and Counterparty as of the relevant Trade Date for the Transaction referenced below.
1. This Supplemental Confirmation supplements, forms part of, and is subject to the Master Confirmation dated as of October 25[l], 2024 2018 (the “Master Confirmation”) between the Contracting Parties, as amended and supplemented from time to time. All provisions contained in the Master Confirmation govern this Supplemental Confirmation except as expressly modified below.
2. The terms of the Transaction to which this Supplemental Confirmation relates are as follows: Trade Date: [ [_______], 20[ [__] Effective Date: [ [_______], 20[ [__] Maturity Date: [ [_______], 20[ [__] Number of Shares: [ ] [________], subject to further adjustment in accordance with the terms of the Master Confirmation Initial Forward Price: USD [ [____] Spread: [ . ]% [_.__]% Volume-Weighted Hedge Price: USD [ [____] Threshold Price: USD [ [____] Initial Stock Loan Rate: [ [___] basis points per annum Maximum Stock Loan Rate: [ [___] basis points per annum Threshold Number of Shares: [ [___] Counterparty hereby agrees (a) to check this Supplemental Confirmation carefully and promptly upon receipt so that errors or discrepancies can be promptly identified and rectified and (b) to confirm that the foregoing (in the exact form provided by Dealer) correctly sets forth the terms of the agreement between Dealer and Counterparty hereunder, by manually signing this Supplemental Confirmation or this page hereof as evidence of agreement to such terms and providing the other information requested herein and promptly returning an executed copy to us. Yours faithfully, [DEALER] By: Name: Title: AGREE REALTY CORPORATION ByAgreed and accepted by: ESSEX PROPERTY TRUST, INC. Name: Title: Forward Price Reduction Date: Forward Price Reduction Amount: [ [______], 20[ [__] USD [ USD[___] [ [______], 20[ [__] USD [ USD[___] [ [______], 20[ [__] USD [ USD[___] [ …….. …….. [______], 20[ [__] USD [ USD[___] [For any calendar month quarter ending on or prior to [ [•]: USD[ [___] For any calendar month quarter ending after [ [•]: USD[ [___]] , 20[ · [Agent] [ · ]1 [Address] Ladies and Gentlemen: Agree Realty Corporation Essex Property Trust, Inc., a Maryland corporation (the “Company”) ), proposes, subject to the terms and conditions set forth stated herein and in the Equity Distribution Agreement, dated October 25September 28, 2024 2018 (the “Equity Distribution Agreement”), among between the Company, Agree Limited Partnership Company and [_________________] (the “Operating Partnership[Agent]”) and Wxxxx Fargo Securities, LLC, BofA Securities, Inc., BTIG, LLC, Citigroup Global Markets Inc., Evercore Group L.L.C., Jxxxxxxxx LLC, J.X. Xxxxxx Securities LLC, Mizuho Securities USA LLC, Mxxxxx Sxxxxxx & Co. LLC, Rxxxxxx Jxxxx & Associates, Inc., Regions Securities LLC, Rxxxxx X. Xxxxx & Co. Incorporated, Sxxxxx, Xxxxxxxx & Company, Incorporated, each as “Agent,” Nomura Securities International, Inc. (acting through BTIG, LLC as its agent), as Forward Seller and Wxxxx Fargo, National Association, Bank of America, N.A., Citibank, N.A. (or an affiliate thereof), Jxxxxxxxx LLC, JPMorgan Chase Bank, National Association, Mxxxxx Sxxxxxx & Co. LLC, Nomura Global Financial Products, Inc., Rxxxxxx Jxxxx & Associates, Inc., Regions Securities LLC and Sxxxxx, Xxxxxxxx & Company, Incorporated, each as Forward Purchaser, to issue and sell to [Agent] the undersigned, as principal (the “Principal”) for resale the shares of the Company’s Common Stock securities specified in the Schedule attached hereto (the “Purchased SharesSecurities”). ) [The Company also proposes , and solely for the purpose of covering over-allotments, to issue and sell grant to [Agent] the Principal option to purchase the additional shares of Common Stock, securities specified in the Schedule attached hereto (the “Additional SharesSecurities”)]. Unless otherwise defined below, if and to capitalized terms defined in the extent that the Principal Distribution Agreement shall have determined to exercise its right to purchase such Additional Shares.] Subject to the terms and conditions set forth herein and in the Equity Distribution Agreement, which are incorporated herein by reference, the Company agrees to issue and sell to the Principal and the latter agrees to purchase from the Company the Purchased Shares at the Time of Delivery and Closing Location (each as set forth in the Schedule attached hereto) and at the purchase price (“Purchase Price”) set forth in the Schedule attached heretosame meanings when used herein. [In addition, the Company agrees To be included if parties agree on an option to sell to the Principal the Additional Shares, and the Principal cover over-allotments: [Agent]. shall have the right to purchase up from the Company all or a portion of the Additional Securities as may be necessary to [ · ] Additional Shares cover over-allotments made in connection with the offering of the Purchased Securities, at the Purchase Price, provided, however, that the amount same purchase price per share to be paid by the Principal for any Additional Shares shall be reduced by an amount per Share equal [Agent] to any dividends declared by the Company and payable on for the Purchased Shares Securities. This option may be exercised by [Agent] at any time (but not payable more than once) on such Additional Shares. The Principal may exercise this rightor before the thirtieth day following the date hereof, in whole or from time to time in part by giving written notice to the Company not later than 30 days after the date of this Terms AgreementCompany. Any exercise Such notice shall specify set forth the aggregate number of shares of Additional Shares Securities as to be purchased by which the Principal option is being exercised, and the date on which such and time when the Additional Shares Securities are to be purchased delivered (such date and time being herein referred to as the “Option Settlement Date”). Each ; provided, however, that the Option Settlement Date must be at least one business day after the written notice is given and may shall not be earlier than the Time of Delivery for the Purchased Shares Settlement Date (as set forth in the Schedule attached hereto, ) nor earlier than the second business day after the date on which the option shall have been exercised nor later than ten the fifth business days day after the date of such noticeon which the option shall have been exercised. Payment of the Purchase Price purchase price for the Additional Shares Securities shall be made at the Option Settlement Date in the same manner and at the same location office as the payment for the Purchased SharesSecurities.] 1 To be name and address of the applicable Agent. The Purchased Shares [and the Additional Shares] shall be registered in such names and in such denominations as the Principal shall request in writing not later than one full business day prior to the Time of Delivery [or the applicable Option Settlement Date, as the case may be.] The Purchased Shares [and the Additional Shares] shall be delivered to the Principal at the Time of Delivery [or an Option Settlement Date, as the case may be,] with any transfer taxes payable in connection with the transfer of the Shares to the Principal duly paid, against payment of the Purchase Price therefor. All capitalized terms used herein and not otherwise defined shall have the respective meanings assigned to them in the Equity Distribution Agreement. Each of the provisions of the Equity Distribution Agreement not specifically related to the solicitation by the Principal[Agent], as agent of the Company, of offers to purchase Shares securities is incorporated herein by reference in its entirety, and shall be deemed to be part of this Terms Agreement to the same extent as if such provisions had been set forth in full herein. Each of the representations representations, warranties and warranties agreements set forth therein shall be deemed to have been made at and as of the date of this Terms Agreement and [and] [,] the Time of Delivery Settlement Date [and any Option Settlement Date], except that each representation and warranty in Section 6 of the Equity Distribution Agreement which makes reference to the Prospectus (as therein defined) shall be deemed to be a representation and warranty as of the date of the Equity Distribution Agreement in relation to the Prospectus, and also a representation and warranty as of the date of this Terms Agreement. [,] [and] the Time of Delivery [and any Option Settlement Date] in relation to the Prospectus as amended and supplemented to relate to the Purchased Shares [and the Additional Shares]. An amendment to the Registration Statement (as defined in the Equity Distribution Agreement), or a supplement to the Prospectus, as the case may be, relating to the Purchased Shares Securities [and the Additional SharesSecurities], in the form heretofore delivered to the Principal [Agent] is now proposed to be filed with the Commission.] Subject to the terms and conditions set forth herein and in the Distribution Agreement which are incorporated herein by reference, the Company agrees to issue and sell to [Agent] and the latter agrees to purchase from the Company, the Purchased Securities at the time and Exchange Commission, place and will be filed promptlyat the purchase price set forth in the Schedule hereto. This Notwithstanding any provision of this Agreement or any Terms Agreement to the contrary, the Company consents to [Agent] trading in the Common Stock for [Agent]’s own account and any claim, controversy or dispute arising under or related for the accounts of its clients at the same time as sales of the Shares occur pursuant to this Terms Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to its choice of law provisionsAgreement. If the foregoing is in accordance with your understanding, please sign and return to us a counterpart hereof, whereupon this Terms Agreement, including those provisions of the Equity Distribution Agreement incorporated herein by reference, shall constitute a binding agreement between the Principal, the Operating Partnership [Agent] and the Company. AGREE REALTY CORPORATION, By: Name: Title: AGREE LIMITED PARTNERSHIP By: Name: Title: ACCEPTED as of the date first first-above written: [ · ]2, [AGENT] Name: Title: 2 To be name Title of the applicable Principal. Common Stock, par value $0.0001 per share [ · Purchased Securities [and Additional Securities]: [•] [ · Number of Shares of Purchased Securities: [•] [Number of Shares of Additional Securities:] [•] [Price to Public:] [•] Purchase Price by [Agent]: [•] [ · ] [ · ] Method of and Specified Funds for Payment of Purchase Price: [By wire transfer to a bank account specified by the Company in same day funds.]
Appears in 1 contract
Designation by Dealer. Notwithstanding any other provision of this Master Confirmation or any Supplemental Confirmation to the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any Shares or other securities to or from Counterparty, Dealer may designate any of its affiliates to purchase, sell, receive or deliver such Shares or other securities and otherwise to perform Dealer’s obligations in respect of any Transaction and any such designee may assume such obligations. Dealer shall be discharged of its obligations to Counterparty only to the extent of any such performance.1 1 Dealer boilerplate to be updated, as applicable. Counterparty hereby agrees (a) to check this Master Confirmation carefully and promptly upon receipt so that errors or discrepancies can be promptly identified and rectified and (b) to confirm that the foregoing (in the exact form provided by Dealer) correctly sets forth the terms of the agreement between Dealer and Counterparty hereunder, by manually signing this Master Confirmation or this page hereof as evidence of agreement to such terms and providing the other information requested herein and promptly returning an executed copy to us. Yours faithfully, [DEALER] By: Name: Title: [Signature Page to the Forward Sale Confirmation] AGREE REALTY CORPORATION By: Name: Title: Axxxxx and accepted with respect to Sections 5 and 9 hereof and Axxxx A hereto by AGREE LIMITED PARTNERSHIP By: Agree Realty Corporation, as the sole general partner By: Name: Title: [Signature Page to the Forward Sale Confirmation] If Counterparty delivers Unregistered Settlement Shares pursuant to Section 12 above (a “Private Placement Settlement”), then:
(a) all Unregistered Settlement Shares shall be delivered to Dealer (or any affiliate of Dealer designated by Dealer) pursuant to the exemption from the registration requirements of the Securities Act provided by Section 4(a)(2) thereof;
(b) as of or prior to the date of delivery, Dealer and any potential purchaser of any such shares from Dealer (or any affiliate of Dealer designated by Dealer) identified by Dealer shall be afforded a commercially reasonable opportunity to conduct a due diligence investigation with respect to Counterparty customary in scope for private placements of equity securities of similar size (including, without limitation, the right to have made available to them for inspection all financial and other records, pertinent corporate documents and other information reasonably requested by them); provided that prior to receiving or being granted access to any such information, Dealer, such affiliate of Dealer or such potential purchaser, as the case may be, may be required by Counterparty to enter into a customary nondisclosure agreement with Counterparty in respect of any such due diligence investigation;
(c) as of the date of delivery, Counterparty and the Operating Partnership shall enter into an agreement (a “Private Placement Agreement”) with Dealer (or any affiliate of Dealer designated by Dealer) in connection with the private placement of such shares by Counterparty to Dealer (or any such affiliate) and the private resale of such shares by Dealer (or any such affiliate), substantially similar to private placement purchase agreements customary for private placements of equity securities of similar size, in form and substance commercially reasonably satisfactory to Dealer, which Private Placement Agreement shall include, without limitation, provisions substantially similar to those contained in such private placement purchase agreements relating, without limitation, to the indemnification of, and contribution in connection with the liability of, Dealer and its affiliates and obligations to use best efforts to obtain customary opinions, accountants’ comfort letters and lawyers’ negative assurance letters, and shall provide for the payment by Counterparty of all commercially reasonable fees and expenses in connection with such resale, including all commercially reasonable fees and expenses of counsel for Dealer, and shall contain representations, warranties, covenants and agreements of Counterparty reasonably necessary or advisable to establish and maintain the availability of an exemption from the registration requirements of the Securities Act for such resales; and
(d) in connection with the private placement of such shares by Counterparty to Dealer (or any such affiliate) and the private resale of such shares by Dealer (or any such affiliate), Counterparty shall, if so requested by Dealer, prepare, in cooperation with Dealer, a private placement memorandum in form and substance reasonably satisfactory to Dealer. In the case of a Private Placement Settlement, Dealer shall, in its good faith discretion, adjust the amount of Unregistered Settlement Shares to be delivered to Dealer hereunder in a commercially reasonable manner to reflect the fact that such Unregistered Settlement Shares may not be freely returned to securities lenders by Dealer and may only be saleable by Dealer at a discount to reflect the lack of liquidity in Unregistered Settlement Shares. If Counterparty delivers any Unregistered Settlement Shares in respect of a Transaction, Counterparty agrees that (i) such Shares may be transferred by and among Dealer and its affiliates and (ii) after the applicable “holding period” within the meaning of Rule 144(d) under the Securities Act has elapsed after the applicable Settlement Date, Counterparty shall promptly remove, or cause the transfer agent for the Shares to remove, any legends referring to any transfer restrictions from such Shares upon delivery by Dealer (or such affiliate of Dealer) to Counterparty or such transfer agent of any seller’s and broker’s representation letters customarily delivered by Dealer or its affiliates in connection with resales of restricted securities pursuant to Rule 144 under the Securities Act, each without any further requirement for the delivery of any certificate, consent, agreement, opinion of counsel, notice or any other document, any transfer tax stamps or payment of any other amount or any other action by Dealer (or such affiliate of Dealer). To: Agree Realty Corporation From: [DEALER] Re: Issuer Share Forward Sale Transaction Date: [ ], 20[ ] Ladies and Gentlemen: The purpose of this Supplemental Confirmation is to confirm the terms and conditions of the Transaction entered into between [DEALER] (“Dealer”) and Agree Realty Corporation (“Counterparty”) (together, the “Contracting Parties”) on the Trade Date specified below. This Supplemental Confirmation is a binding contract between Dealer and Counterparty as of the relevant Trade Date for the Transaction referenced below.
1. This Supplemental Confirmation supplements, forms part of, and is subject to the Master Confirmation dated as of October 25February 16, 2024 (the “Master Confirmation”) between the Contracting Parties, as amended and supplemented from time to time. All provisions contained in the Master Confirmation govern this Supplemental Confirmation except as expressly modified below.
2. The terms of the Transaction to which this Supplemental Confirmation relates are as follows: Trade Date: [ ], 20[ ] Effective Date: [ ], 20[ ] Maturity Date: [ ], 20[ ] Number of Shares: [ ] Initial Forward Price: USD [ ] Spread: [ . ]% Volume-Weighted Hedge Price: USD [ ] Threshold Price: USD [ ] Initial Stock Loan Rate: [ ] basis points per annum Maximum Stock Loan Rate: [ ] basis points per annum Threshold Number of Shares: [ ] Counterparty hereby agrees (a) to check this Supplemental Confirmation carefully and promptly upon receipt so that errors or discrepancies can be promptly identified and rectified and (b) to confirm that the foregoing (in the exact form provided by Dealer) correctly sets forth the terms of the agreement between Dealer and Counterparty hereunder, by manually signing this Supplemental Confirmation or this page hereof as evidence of agreement to such terms and providing the other information requested herein and promptly returning an executed copy to us. Yours faithfully, [DEALER] By: Name: Title: AGREE REALTY CORPORATION By: Name: Title: Forward Price Reduction Date: Forward Price Reduction Amount: [ ], 20[ ] USD [ ] [ ], 20[ ] USD [ ] [ ], 20[ ] USD [ ] [ ], 20[ ] USD [ ] For any calendar month ending on or prior to [ ]: USD[ ] For any calendar month ending after [ ]: USD[ ] , 20[ · l ] [ · l ]1 Ladies and Gentlemen: Agree Realty Corporation (the “Company”) proposes, subject to the terms and conditions set forth herein and in the Equity Distribution Agreement, dated October 25February 16, 2024 2023 (the “Equity Distribution Agreement”), among the Company, Agree Limited Partnership (the “Operating Partnership”) and Wxxxx Fargo Securities, LLC, BofA Securities, Inc., BTIG, LLC, Capital One Securities, Inc., Citigroup Global Markets Inc., Citizens JMP Securities, LLC, Evercore Group L.L.C., Jxxxxxxxx LLC, J.X. Xxxxxx Securities LLC, Mizuho Securities USA LLC, Mxxxxx Sxxxxxx & Co. LLC, Rxxxxxx Jxxxx & Associates, Inc., Regions Securities LLC, Rxxxxx X. Xxxxx & Co. Incorporated, Sxxxxx, Xxxxxxxx & Company, Incorporated, each as “Agent,” Nomura Securities International, Inc. (acting through BTIG, LLC as its agent), as Forward Seller and Wxxxx Fargo, National Association, Bank of America, N.A., Citibank, N.A. (or an affiliate thereof)N.A., Citizens JMP Securities, LLC, Jxxxxxxxx LLC, JPMorgan Chase Bank, National Association, Mxxxxx Sxxxxxx & Co. LLC, Nomura Global Financial Products, Inc., Rxxxxxx Jxxxx & Associates, Inc., Regions Securities LLC and Sxxxxx, Xxxxxxxx & Company, Incorporated, each as Forward Purchaser, to issue and sell to the undersigned, as principal (the “Principal”) for resale the shares of the Company’s Common Stock specified in the Schedule attached hereto (the “Purchased Shares”). [The Company also proposes to issue and sell to the Principal the additional shares of Common Stock, specified in the Schedule attached hereto (“Additional Shares”), if and to the extent that the Principal shall have determined to exercise its right to purchase such Additional Shares.] Subject to the terms and conditions set forth herein and in the Equity Distribution Agreement, which are incorporated herein by reference, the Company agrees to issue and sell to the Principal and the latter agrees to purchase from the Company the Purchased Shares at the Time of Delivery and Closing Location (each as set forth in the Schedule attached hereto) and at the purchase price (“Purchase Price”) set forth in the Schedule attached hereto. 1 To be name and address of the applicable Agent. [In addition, the Company agrees to sell to the Principal the Additional Shares, and the Principal shall have the right to purchase up to [ · l ] Additional Shares at the Purchase Price, provided, however, that the amount paid by the Principal for any Additional Shares shall be reduced by an amount per Share equal to any dividends declared by the Company and payable on the Purchased Shares but not payable on such Additional Shares. The Principal may exercise this right, in whole or from time to time in part by giving written notice to the Company not later than 30 days after the date of this Terms Agreement. Any exercise notice shall specify the number of Additional Shares to be purchased by the Principal and the date on which such Additional Shares are to be purchased (such date and time being herein referred to as the “Option Settlement Date”). Each Option Settlement Date must be at least one business day after the written notice is given and may not be earlier than the Time of Delivery for the Purchased Shares set forth in the Schedule attached hereto, nor later than ten business days after the date of such notice. Payment of the Purchase Price for the Additional Shares shall be made at the Option Settlement Date in the same manner and at the same location as the payment for the Purchased Shares.] 1 To be name and address of the applicable Agent. The Purchased Shares [and the Additional Shares] shall be registered in such names and in such denominations as the Principal shall request in writing not later than one full business day prior to the Time of Delivery [or the applicable Option Settlement Date, as the case may be.] The Purchased Shares [and the Additional Shares] shall be delivered to the Principal at the Time of Delivery [or an Option Settlement Date, as the case may be,] with any transfer taxes payable in connection with the transfer of the Shares to the Principal duly paid, against payment of the Purchase Price therefor. All capitalized terms used herein and not otherwise defined shall have the respective meanings assigned to them in the Equity Distribution Agreement. Each of the provisions of the Equity Distribution Agreement not specifically related to the solicitation by the Principal, as agent of the Company, of offers to purchase Shares is incorporated herein by reference in its entirety, and shall be deemed to be part of this Terms Agreement to the same extent as if such provisions had been set forth in full herein. Each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Terms Agreement and the Time of Delivery [and any Option Settlement Date], except that each representation and warranty in Section 6 of the Equity Distribution Agreement which makes reference to the Prospectus (as therein defined) shall be deemed to be a representation and warranty as of the date of the Equity Distribution Agreement in relation to the Prospectus, and also a representation and warranty as of the date of this Terms Agreement[,] [and] the Time of Delivery [and any Option Settlement Date] in relation to the Prospectus as amended and supplemented to relate to the Purchased Shares [and the Additional Shares]. An amendment to the Registration Statement (as defined in the Equity Distribution Agreement), or a supplement to the Prospectus, as the case may be, relating to the Purchased Shares [and the Additional Shares], in the form heretofore delivered to the Principal is now proposed to be filed with the Securities and Exchange Commission, and will be filed promptly. This Terms Agreement and any claim, controversy or dispute arising under or related to this Terms Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to its choice of law provisions. If the foregoing is in accordance with your understanding, please sign and return to us a counterpart hereof, whereupon this Terms Agreement, including those provisions of the Equity Distribution Agreement incorporated herein by reference, shall constitute a binding agreement between the Principal, the Operating Partnership and the Company. AGREE REALTY CORPORATION, By: Name: Title: AGREE LIMITED PARTNERSHIP By: Name: Title: ACCEPTED as of the date first above written: [ · l ]2, Name: Title: 2 To be name of the applicable Principal. Common Stock, par value $0.0001 per share [ · l ] [ · l ]] [ · l ] [ · l ] By wire transfer to a bank account specified by the Company in same day funds.
Appears in 1 contract
