Common use of Issuance and Sale by the Company Clause in Contracts

Issuance and Sale by the Company. (a) In the event that any Forward Seller elects not to borrow Shares, pursuant to Section 2 hereof, or any Forward Seller is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, to be sold by it to the Underwriters on the Closing Date or the Option Closing Date, as applicable, and deliverable by such Forward Seller hereunder, or any Forward Seller determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such Forward Seller would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller) of more than a rate equal to 200 basis points per annum to do so, then, upon notice by such Forward Seller to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day immediately preceding the Closing Date or any Option Closing Date, as the case may be), the Company shall issue and sell to the Underwriters, pursuant to Section 2 hereof, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder that such Forward Seller does not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives shall have the right to postpone the Closing Date or the Option Closing Date, as applicable, for one business day in order to effect any required changes in any documents or arrangements. Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a) in lieu of any Borrowed Firm Shares are referred to herein as the “Company Top-Up Firm Shares.” Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a) in lieu of any Borrowed Additional Shares in respect of which Additional Forward Sale Agreements have been executed are referred to herein as the “Company Top-Up Additional Shares.” (b) Neither any of the Forward Counterparties nor any of the Forward Sellers shall have any liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Shares that such Forward Seller does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect to the Forward Counterparties and the Forward Sellers are not satisfied on or prior to the Closing Date or the Option Closing Date or any additional time of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed), as applicable, and such Forward Seller elects pursuant to Section 2 hereof not to deliver and sell to the Underwriters the Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder, or (ii) such Forward Seller determines in good faith, in its commercially reasonable judgment, it is unable to borrow and cause delivery for sale under this Agreement on the Closing Date or the Option Closing Date, as applicable, a number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder or (iii) such Forward Seller determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such Forward Seller would incur a stock loan cost of more than a rate equal to 200 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconduct.

Issuance and Sale by the Company. (a) In the event that any (i) all the Conditions are not satisfied on or prior to the Closing Date, and the Forward Seller elects not to borrow SharesSellers elect, pursuant to Section 2 hereof4(c), not to deliver the Borrowed Shares deliverable by the Forward Sellers or any (ii) the Forward Seller is unable Sellers (or their affiliates) (x) are unable, after using commercially reasonable efforts, to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the full number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, to be borrowed and sold by it to the Underwriters on hereunder as of the Closing Date or the such Option Closing Date, as applicable, and deliverable by such Forward Seller hereunder, Date or any Forward Seller determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such Forward Seller (y) would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller) of more than a rate equal to 200 50 basis points per annum to do soso with respect to all or any portion of such full number of Borrowed Shares, then, upon notice by such Forward Seller to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day immediately preceding the Closing Date or any Option Closing Date, as the case may be)in each case, the Company shall issue and sell to the Underwriters, pursuant to Section 2 4 hereof, in whole but not in part, an aggregate number of shares of Common Stock Shares equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such that the Forward Seller hereunder that such Forward Seller does Sellers do not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives shall have the right to postpone the Closing Date Date, or the Option Closing Date, as applicablethe case may be, for a period not exceeding one business day in order to effect any required changes in any documents or arrangements. Any shares of Common Stock The Shares sold by the Company to the Underwriters pursuant to this Section 23(a10(a): (i) in lieu of any Borrowed Firm Underwritten Shares are referred to herein as the “Company Top-Up Firm Underwritten Shares.” Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(aand (ii) in lieu of any Borrowed Additional Option Shares in respect of which Additional Forward Sale Agreements have been executed are referred to herein as the “Company Top-Up Additional Option Shares.” (b) Neither any None of the Forward Counterparties nor any of Purchasers and the Forward Sellers shall have any liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Shares that such the Forward Seller does Sellers do not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect to the Forward Counterparties and the Forward Sellers are not satisfied on or prior to the Closing Date Date, or the Option Closing Date or any additional time of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed)Date, as applicablethe case may be, and such the Forward Seller elects Sellers elect, pursuant to Section 2 hereof 4(c) hereof, not to deliver and sell to the Underwriters the Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder, or (ii) such the Forward Seller determines in good faithSellers (or their affiliates) (x) are unable, in its after using commercially reasonable judgmentefforts, it is unable to borrow and cause delivery deliver for sale under this Agreement on the full number of Borrowed Shares to be borrowed and sold hereunder as of the Closing Date or the such Option Closing Date, as applicable, a number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder Date or (iiiy) such Forward Seller determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such Forward Seller would incur a stock loan cost of more than a rate equal to 200 50 basis points per annum to do so (excluding, for the avoidance with respect to all or any portion of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion full number of liability shall not apply in the case of fraud and/or any intentional misconductBorrowed Shares.

Issuance and Sale by the Company. (a) In If (i) any of the event that representations and warranties of the Company contained herein or any certificate delivered by the Company pursuant hereto are not true and correct as of the Closing Time or a Date of Delivery, as if made as of the Closing Time or such Date of Delivery, as the case may be, (ii) the Company has not performed all of the obligations required to be performed by it under this Agreement or the applicable Forward Seller elects Sale Agreement on or prior to the Closing Time or such Date of Delivery, (iii) any of the conditions set forth in Section 5 hereof have not been satisfied on or prior to borrow Sharesthe Closing Time or such Date of Delivery, (iv) this Agreement shall have been terminated pursuant to Section 2 hereof9 hereof on or prior to the Closing Time or such Date of Delivery, or the Closing Time or such Date of Delivery shall not have occurred, (v) any of the conditions in the applicable Forward Sale Agreement shall not have been satisfied on or prior to the Closing Time or such Date of Delivery, (vi) any of the representations and warranties of the Company contained in the applicable Forward Sale Agreement are not true and correct as of the Closing Time or such Date of Delivery as if made as of the Closing Time or such Date of Delivery, or (vii) the Forward Seller determines that (A) it or its affiliate is unable through commercially reasonable efforts to borrow and deliver for sale under this Agreement a number of shares of Common Stock Borrowed Securities equal to the number of Borrowed Firm Shares Securities that it has agreed to sell and deliver in connection with establishing its hedge position or Borrowed Additional Shares, as applicable, to be sold by it to the Underwriters on the Closing Date or the Option Closing Date, as applicable, and deliverable by such Forward Seller hereunder, or any Forward Seller determines in good faith, (B) in its commercially reasonable judgmentjudgement, either it is either impracticable to do so or that such Forward Seller it or its affiliate would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller) of more than a rate equal to 200 basis points per annum to do soso (clauses (i) through (vii), thentogether, upon notice by such the “Conditions”), then (I) in the case of the Conditions set forth in clauses (i) through (vi), the Forward Seller may elect not to deliver for sale to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day immediately preceding Underwriters at the Closing Time or such Date of Delivery the Borrowed Initial Securities or any the Borrowed Option Securities, as applicable, and (II) in the event of the Conditions set forth in clause (vii), the Forward Seller shall only be required to deliver for sale to the Underwriters at the Closing DateTime or such Date of Delivery, as the case may be, the aggregate number of shares of Common Stock that the Forward Seller or its affiliates is able to so borrow in connection with establishing its commercially reasonable hedge position at or below such cost. In addition, the Forward Seller and the Forward Purchaser shall have no liability whatsoever for any Borrowed Securities that the Forward Seller does not sell and deliver for sale to the Underwriters pursuant to this Section 11(a). (b) In the event that the Forward Seller, pursuant to Section 11(a), does not deliver for sale the Borrowed Securities, then the Company shall issue and sell to the UnderwritersUnderwriters at the purchase price per share set forth in Schedule A hereto (in the case of any Company Top-Up Option Securities, pursuant less an amount per share equal to Section 2 hereofany dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities), in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder Securities that such the Forward Seller does not so deliver and sell for sale to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives Representative shall have the right to postpone the Closing Time or such Date or the Option Closing Dateof Delivery, as applicablethe case may be, for a period not exceeding one business day in order to effect any required changes in any documents or arrangements. Any shares of Common Stock The Securities sold by the Company to the Underwriters pursuant to this Section 23(a11: (i) in lieu of any Borrowed Firm Shares Initial Securities are referred to herein as the “Company Top-Up Firm Shares.Initial Securities” Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(aand (ii) in lieu of any Borrowed Additional Shares in respect of which Additional Forward Sale Agreements have been executed Option Securities are referred to herein as the “Company Top-Up Additional SharesOption Securities.” (b) Neither any of ” If the Forward Counterparties nor any of the Forward Sellers shall have any liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Shares that such Forward Seller does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect to the Forward Counterparties and the Forward Sellers are not satisfied on or prior to the Closing Date or the Option Closing Date or any additional time of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed), as applicable, and such Forward Seller elects pursuant to Section 2 hereof 11(a) not to to, or is otherwise not required to, borrow and deliver and sell for sale to the Underwriters at the relevant Closing Time or Date of Delivery the total number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, Securities otherwise deliverable by such it hereunder, the Forward Seller hereunder, or (ii) such Forward Seller determines in good faith, in will use its commercially reasonable judgmentefforts to notify the Company no later than 9:00 A.M., it is unable to borrow and cause delivery for sale under this Agreement New York City time, on the Closing Time or such Date or of Delivery of the Option Closing Date, as applicable, a number of shares of Common Stock equal to the total number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable Securities to be delivered for sale to the Underwriters by such Forward Seller hereunder or (iii) such Forward Seller determines in good faithit hereunder. Notwithstanding anything to the contrary herein, in its commercially reasonable judgment, it is either impracticable no event will the Company be required to do so issue or that such Forward Seller would incur a stock loan cost deliver any Company Securities prior to the business day following notice to the Company of more than a rate equal to 200 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion number of liability shall not apply Securities so deliverable in the case of fraud and/or any intentional misconductaccordance with this Section 11.

Issuance and Sale by the Company. (a) In the event that any the Forward Seller elects not to borrow SharesSecurities, pursuant to Section 2 hereof, or any the Forward Seller is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the number of Borrowed Firm Shares Underwritten Securities or Borrowed Additional SharesOption Securities, as applicable, to be sold by it to the Underwriters on the Closing Date or the Option Closing relevant Settlement Date, as applicable, and deliverable by such the Forward Seller hereunder, or any the Forward Seller determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such the Forward Seller would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such the Forward Seller) of more than a rate equal to 200 300 basis points per annum to do so, then, upon notice by such the Forward Seller to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day immediately preceding the Closing Date or any Option Closing the relevant Settlement Date, as the case may be), the Company shall issue and sell to the Underwriters, pursuant to Section 2 hereof, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Shares Underwritten Securities or Borrowed Additional SharesOption Securities, as applicable, deliverable by such the Forward Seller hereunder that such the Forward Seller does not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives shall have the right to postpone the Closing Date or the Option Closing relevant Settlement Date, as applicable, for one business day in order to effect any required changes in any documents or arrangements. Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a22(a) in lieu of any Borrowed Firm Shares Underwritten Securities are referred to herein as the “Company Top-Up Firm SharesUnderwritten Securities.” Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a22(a) in lieu of any Borrowed Additional Shares Option Securities in respect of which Additional Option Forward Sale Agreements have Agreement has been executed are referred to herein as the “Company Top-Up Additional SharesOption Securities.” (b) Neither any of the Forward Counterparties Counterparty nor any of the Forward Sellers Seller shall have any liability whatsoever for any Borrowed Firm Shares Underwritten Securities or Borrowed Additional Shares Option Securities that such the Forward Seller does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect to the Forward Counterparties Counterparty and the Forward Sellers Seller are not satisfied on or prior to the Closing Date or the Option Closing relevant Settlement Date or any additional time of purchase (in respect of any Borrowed Additional Shares Option Securities in respect of which the Additional Option Forward Sale Agreements have Agreement has been executed), as applicable, and such the Forward Seller elects pursuant to Section 2 hereof not to deliver and sell to the Underwriters the Borrowed Firm Shares Underwritten Securities or Borrowed Additional SharesOption Securities, as applicable, deliverable by such the Forward Seller hereunder, or (ii) such the Forward Seller determines in good faith, in its commercially reasonable judgment, it is unable to borrow and cause delivery for sale under this Agreement on the Closing Date or the Option Closing relevant Settlement Date, as applicable, a number of shares of Common Stock equal to the number of Borrowed Firm Shares Underwritten Securities or Borrowed Additional SharesOption Securities, as applicable, deliverable by such the Forward Seller hereunder or (iii) such the Forward Seller determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such the Forward Seller would incur a stock loan cost of more than a rate equal to 200 300 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such the Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconduct.

Issuance and Sale by the Company. (a) In the event that any the Forward Seller elects not to borrow Shares, pursuant to Section 2 hereof, or any the Forward Seller is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, to be sold purchased by it to the Underwriters on the Closing Date or the Option Closing Date, as applicable, and deliverable by such the Forward Seller hereunder, or any the Forward Seller determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such Forward Seller would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller) of more than a rate equal to 200 basis points per annum to do so, then, upon notice by such the Forward Seller to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day immediately preceding the Closing Date or any Option Closing Date, as the case may be), the Company shall issue and sell to the Underwriters, pursuant to Section 2 hereof, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such the Forward Seller hereunder that such the Forward Seller does not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives shall have the right to postpone the Closing Date or the Option Closing Date, as applicable, for one business day in order to effect any required changes in any documents or arrangements. Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a) in lieu of any Borrowed Firm Shares are referred to herein as the “Company Top-Up Firm Shares.” Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a) in lieu of any Borrowed Additional Shares in respect of which an Additional Forward Sale Agreements have Agreement has been executed are referred to herein as the “Company Top-Up Additional Shares.” (b) Neither any of the Forward Counterparties Counterparty nor any of the Forward Sellers Seller shall have any liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Shares that such the Forward Seller does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect to the Forward Counterparties Counterparty and the Forward Sellers Seller are not satisfied on or prior to the Closing Date or the Option Closing Date or any additional time of purchase (in respect of any Borrowed Additional Shares in respect of which the an Additional Forward Sale Agreements have Agreement has been executed), as applicable, and such the Forward Seller elects pursuant to Section 2 hereof not to deliver and sell to the Underwriters the Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such the Forward Seller hereunder, or (ii) such the Forward Seller determines in good faith, in its commercially reasonable judgment, it is unable to borrow and cause delivery the Forward Seller to deliver for sale under this Agreement on the Closing Date or the Option Closing Date, as applicable, a number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such the Forward Seller hereunder or (iii) such the Forward Seller determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such Forward Seller would incur a stock loan cost of more than a rate equal to 200 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller)so, it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconduct.

Issuance and Sale by the Company. (a) In the event that any Forward Seller elects not to borrow Shares, pursuant to Section 2 hereof, or any Forward Seller is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, to be sold by it to the Underwriters on the Closing Date or the Option Closing Date, as applicable, and deliverable by such Forward Seller hereunder, or any Forward Seller determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such Forward Seller would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller) of more than a rate equal to 200 basis points per annum to do so, then, upon notice by such Forward Seller to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day immediately preceding the Closing Date or any Option Closing Date, as the case may be), the Company shall issue and sell to the Underwriters, pursuant to Section 2 hereof, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder that such Forward Seller does not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives shall have the right to postpone the Closing Date or the Option Closing Date, as applicable, for one business day in order to effect any required changes in any documents or arrangements. Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a24(a) in lieu of any Borrowed Firm Shares are referred to herein as the “Company Top-Up Firm Shares.” Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a24(a) in lieu of any Borrowed Additional Shares in respect of which Additional Forward Sale Agreements have been executed are referred to herein as the “Company Top-Up Additional Shares.” (b) Neither any of the Forward Counterparties nor any of the Forward Sellers shall have any liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Shares that such Forward Seller does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect to the Forward Counterparties and the Forward Sellers are not satisfied on or prior to the Closing Date or the Option Closing Date or any additional time of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed), as applicable, and such Forward Seller elects pursuant to Section 2 hereof not to deliver and sell to the Underwriters the Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder, or (ii) such Forward Seller determines in good faith, in its commercially reasonable judgment, it is unable to borrow and cause delivery for sale under this Agreement on the Closing Date or the Option Closing Date, as applicable, a number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder or (iii) such Forward Seller determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such Forward Seller would incur a stock loan cost of more than a rate equal to 200 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconduct.

Issuance and Sale by the Company. (a) In the event that any (i) a Forward Seller elects not to borrow Shares, Shares pursuant to the first sentence of Section 2 3(c) hereof, or any (ii) a Forward Seller Purchaser determines in good faith, after using commercially reasonable efforts, that (A) it or its affiliate, as Forward Seller, is unable to borrow and deliver deliver, on the Closing Date or any Subsequent Closing Date, as the case may be, for sale under this Agreement a number of shares of Common Stock equal to the number of Borrowed Firm Forward Shares or Borrowed Additional Shares, as applicable, to be sold by it to the Underwriters otherwise deliverable on the Closing Date or the Option Closing Date, as applicable, and deliverable such date by such Forward Seller hereunder, hereunder or any Forward Seller determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that (B) such Forward Seller would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller) of more than a rate equal to 200 basis points per annum to do so, then, in each case, upon notice by such Forward Seller to the Company and the Operating Partnership (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day business day immediately preceding the Closing Date or any Option such Subsequent Closing Date, as the case may be), the Company shall issue and sell to the Underwriters, pursuant to Section 2 3 hereof, in whole but not in parton the Closing Date or such Subsequent Closing Date, as the case may be, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Forward Shares or Borrowed Additional Shares, as applicable, otherwise deliverable on such date by such the applicable Forward Seller hereunder that such Forward Seller does is not required to so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives shall have the right to postpone the Closing Date or the Option any Subsequent Closing Date, as applicablethe case may be, for one business day in order to effect any required changes in any documents or arrangements. Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a13(a) in lieu of any Borrowed Firm Forward Underwritten Shares are referred to herein as the “Company Top-Up Firm Underwritten Shares.,” Any and (ii) any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a13(a) in lieu of any Borrowed Additional Forward Optional Shares in respect of which Additional Forward Sale Agreements have been executed are referred to herein as the “Company Top-Up Additional Optional Shares.” (b) Neither any of the A Forward Counterparties nor any of the Forward Sellers Seller shall not have any liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Forward Shares that such the Forward Seller does not deliver and sell to the Underwriters or any other party if (i) all of the relevant Conditions with respect to the Forward Counterparties and the Forward Sellers are not satisfied on or prior to the Closing Date or the Option any Subsequent Closing Date or any additional time of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed)Date, as applicablethe case may be, and such Forward Seller validly elects pursuant to the first sentence of Section 2 3(c) hereof not to deliver and sell to the Underwriters the Borrowed Firm Forward Shares or Borrowed Additional Shares, as applicable, otherwise deliverable on such date by such Forward Seller hereunder, or (ii) such the relevant Forward Seller Purchaser determines in good faith, in its after using commercially reasonable judgmentefforts, it that (A) such Forward Seller is unable to borrow and cause delivery or deliver for sale under this Agreement on the Closing Date or the Option Closing Date, as applicable, a number of shares of Common Stock equal to the number of Borrowed Firm Forward Shares or Borrowed Additional Shares, as applicable, otherwise deliverable on such date by such Forward Seller hereunder or (iiiB) such Forward Seller determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such Forward Seller would incur a stock loan cost of more than a rate equal to 200 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconduct).

Issuance and Sale by the Company. (a) In the event that any (i) all the Conditions are not satisfied on or prior to the Initial Closing Date and the Forward Seller elects not to borrow Shareselects, pursuant to Section 2 hereof3(b) hereof not to deliver and sell to the Underwriters their respective portion of the Borrowed Firm Shares otherwise deliverable by the Forward Seller, or any (ii) in the Forward Purchaser’s good faith and commercially reasonable judgment the Forward Seller is unable to borrow and deliver for sale under this Agreement a the number of shares of Common Stock Shares equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, to be sold by it to the Underwriters on the Closing Date or the Option Closing Date, as applicable, and deliverable by such the Forward Seller hereunder, hereunder or any (iii) in the Forward Seller determines in Purchaser’s good faith, in its faith and commercially reasonable judgment, it is either impracticable to do so or that such judgment the Forward Seller would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller) of more than a rate equal to 200 basis points per annum to do so, then, upon notice by such Forward Seller to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day immediately preceding the Closing Date or any Option Closing Date, as the case may be)in each case, the Company shall issue and sell to the several Underwriters, pursuant to Section 2 hereof3(a)(iii), in whole but not in part, an aggregate number of shares of Common Stock Shares equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder that such the Forward Seller does not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives Underwriters shall have the right to postpone the relevant Closing Date or the Option Closing Date, as applicable, for one a period not exceeding two (2) business day days in order to effect any required changes in any documents or arrangements. Any shares of The Common Stock Shares sold by the Company to the Underwriters pursuant to this Section 23(a8(a) in lieu of any Borrowed Firm Shares are referred to herein as the “Company Top-Up Firm Shares.” Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a) in lieu of any Borrowed Additional Shares in respect of which Additional Forward Sale Agreements have been executed are referred to herein as the “Company Top-Up Additional Shares.” (b) Neither any of the Forward Counterparties Seller nor any of the Forward Sellers Purchaser shall have any liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Shares that such the Forward Seller does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect to the Forward Counterparties and the Forward Sellers are not satisfied on or prior to the Initial Closing Date or and the Option Closing Date or any additional time of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed), as applicable, and such Forward Seller elects elects, pursuant to Section 2 hereof 3(b) hereof, not to deliver and sell to the Underwriters their respective portion of the Borrowed Firm Shares or Borrowed Additional Shares, as applicable, otherwise deliverable by such the Forward Seller hereunderSeller, or (ii) such in the good faith and commercially reasonable judgment of the Forward Purchaser, the Forward Seller determines in good faith, in its commercially reasonable judgment, it is unable to borrow and cause delivery deliver for sale under this Agreement on the Closing Date or the Option Closing Date, as applicable, a number of shares of Common Stock Shares equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such the Forward Seller hereunder or (iii) such Forward Seller determines in the good faith, in its faith and commercially reasonable judgmentjudgment of the Forward Purchaser, it is either impracticable to do so or that such the Forward Seller would incur a stock loan cost of more than a rate equal to 200 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconductso.

Issuance and Sale by the Company. (a) In the event that any Forward Seller elects not to borrow SharesSecurities, pursuant to Section 2 3 hereof, or any Forward Seller is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, to be sold and delivered by it to the Underwriters on at the Closing Date Time or the Option Closing DateTime of Delivery, as applicable, and deliverable by such Forward Seller hereunder, or any Forward Seller determines that (A) it or its affiliate is unable through commercially reasonable efforts to borrow and deliver for sale a number of Borrowed Shares equal to the number of Borrowed Shares that it has agreed to sell and deliver in good faith, connection with establishing a commercially reasonable hedge position or (B) in its commercially reasonable judgment, judgment either it is either impracticable to do so or that such Forward Seller it or its affiliate would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller) of more than a rate equal to 200 basis points per annum to do so, then, upon notice by such Forward Seller will use its commercially reasonable efforts to notify the Company (which notice shall be delivered no later than 5:00 p.m.9:00 a.m., New York City time, on the Business Day immediately preceding at the Closing Date Time or any Option Closing Datesuch Time of Delivery, as the case may be), and the Company shall issue and sell to the Underwriters, pursuant to Section 2 hereof, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder that such Forward Seller does not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives shall have the right to postpone the Closing Date or the Option Closing Date, as applicable, for one business day in order to effect any required changes in any documents or arrangements. Any The shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a11(a): (i) in lieu of any Borrowed Firm Shares are herein referred to herein collectively as the “Company Top-Up Firm Shares.” Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(aand (ii) in lieu of any Borrowed Additional Shares in respect of for which an Additional Forward Sale Agreements have Agreement has been executed are herein referred to herein collectively as the “Company Top-Up Additional Shares.”” In connection with any such issuance and sale by the Company, the Company and the Underwriters shall have the right to postpone the Closing Time or the Time of Delivery, as applicable, for one Business Day in order to effect any required changes in any documents or arrangements. (b) Neither any of the Forward Counterparties Purchasers nor any of the Forward Sellers shall have any liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Shares that such Forward Seller does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect to the Forward Counterparties Purchasers and the Forward Sellers are not satisfied on or prior to the Closing Date Time or the Option Closing Date or any additional time Time of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed)Delivery, as applicable, and such Forward Seller elects pursuant to Section 2 3 hereof not to deliver and sell to the Underwriters the Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder, or (ii) such Forward Seller determines in good faith, in that (A) it or its affiliate is unable through commercially reasonable judgment, it is unable efforts to borrow and cause delivery deliver for sale under this Agreement on the Closing Date or the Option Closing Date, as applicable, a number of shares of Common Stock Borrowed Shares equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder that it has agreed to sell and deliver in connection with establishing a commercially reasonable hedge position or (iiiB) such Forward Seller determines in good faith, in its commercially reasonable judgment, judgment either it is either impracticable to do so or that such Forward Seller it or its affiliate would incur a stock loan cost of more than a rate equal to 200 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconductso.

Issuance and Sale by the Company. (a) In the event that any (i) all the Conditions are not satisfied on the Closing Date and the Forward Seller elects not to borrow Shareselects, pursuant to Section 2 hereof2(a)(ii), or any not to deliver the Borrowed Firm Shares deliverable by the Forward Seller, (ii) in the Forward Seller’s commercially reasonable judgment, the Forward Seller is unable unable, after using commercially reasonable efforts, to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the number of the Borrowed Firm Shares or Borrowed Additional Shares, as applicable, to be sold by it to (iii) in the Underwriters on the Closing Date or the Option Closing Date, as applicable, and deliverable by such Forward Seller hereunder, or any Forward Seller determines in good faith, in its Purchaser’s commercially reasonable judgment, it is either impracticable to do so borrow and deliver for sale under this Agreement a number of shares of Stock equal to the number of the Borrowed Firm Shares, or that such (iv) in the Forward Purchaser’s commercially reasonable judgment, the Forward Seller would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller) of more than a rate equal to 200 25 basis points per annum to do so, then, upon notice by such Forward Seller borrow and deliver for sale under this Agreement a number of shares of Stock equal to the Company (which notice shall be delivered no later than 5:00 p.m.number of the Borrowed Firm Shares, New York City time, on the Business Day immediately preceding the Closing Date or any Option Closing Date, as the case may be), then the Company shall issue and sell to the Underwriters, pursuant to Section 2 hereof, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder that such the Forward Seller does not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or Representative, the Representatives Forward Purchaser and the Forward Seller shall have the right to postpone the Closing Date or the Option Closing Date, as applicable, for a period not exceeding one business day in order to effect any required changes in any documents or arrangements. Any The shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a11(a) in lieu of any Borrowed Firm Shares are referred to herein as the “Company Top-Up Firm Shares.” Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a) in lieu of any Borrowed Additional Shares in respect of which Additional Forward Sale Agreements have been executed are referred to herein as the “Company Top-Up Additional Shares.” (b) Neither any of the Forward Counterparties Purchaser nor any of the Forward Sellers Seller shall have any liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Shares that such the Forward Seller does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect to the Forward Counterparties and the Forward Sellers are not satisfied on or prior to the Closing Date or and the Option Closing Date or any additional time of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed), as applicable, and such Forward Seller elects elects, pursuant to Section 2 hereof 2(a)(ii) hereof, not to deliver and sell to the Underwriters the Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder, or (ii) such in the Forward Seller determines in good faith, in its Seller’s commercially reasonable judgment, it the Forward Seller is unable unable, after using commercially reasonable efforts, to borrow and cause delivery deliver for sale under this Agreement on the Closing Date or the Option Closing Date, as applicable, a number of shares of Common Stock equal to the number of the Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder or (iii) such in the Forward Seller determines in good faith, in its Purchaser’s commercially reasonable judgment, it is either impracticable to do so borrow and deliver for sale under this Agreement on the Closing Date a number of shares of Stock equal to the number of the Borrowed Firm Shares or that such (iv) in the Forward Purchaser’s commercially reasonable judgment, the Forward Seller would incur a stock loan cost of more than a rate equal to 200 25 basis points per annum to do so (excluding, borrow and deliver for sale under this Agreement on the avoidance Closing Date a number of doubt, shares of Stock equal to the federal funds rate component payable by number of the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconductBorrowed Firm Shares.

Issuance and Sale by the Company. (a) In the event that any Forward Seller Purchaser elects not to borrow Shares, pursuant to Section 2 1 hereof, or any Forward Seller Purchaser is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, to be sold by it to the Underwriters on the Closing Date or the Option Closing DateTime, as applicable, and deliverable by such Forward Seller Purchaser hereunder, or any Forward Seller Purchaser determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such Forward Seller Purchaser would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward SellerPurchaser) of more than a rate equal to 200 basis points per annum to do so, then, upon notice by such Forward Seller Purchaser to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business business Day immediately preceding the Closing Date or any Option Closing DateTime, as the case may be), the Company shall issue and sell to the Underwriters, pursuant to Section 2 1 hereof, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller Purchaser hereunder that such Forward Seller Purchaser does not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives shall have the right to postpone the Closing Date or the Option Closing DateTime, as applicable, for one business day in order to effect any required changes in any documents or arrangements. Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a17(a) in lieu of any Borrowed Firm Shares are referred to herein as the “Company Top-Up Firm Shares.” Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a17(a) in lieu of any Borrowed Additional Shares in respect of which Additional Forward Sale Agreements have been executed are referred to herein as the “Company Top-Up Additional Shares.” (b) Neither any of the The Forward Counterparties nor any of the Forward Sellers Purchasers shall not have any liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Shares that such Forward Seller Purchaser does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect to the Forward Counterparties and the Forward Sellers Purchasers are not satisfied on or prior to the Closing Date or the Option Closing Date Time or any additional time of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed), as applicable, and such Forward Seller Purchaser elects pursuant to Section 2 1 hereof not to deliver and sell to the Underwriters the Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller Purchaser hereunder, or (ii) such Forward Seller Purchaser determines in good faith, in its commercially reasonable judgment, it is unable to borrow and cause delivery for sale under this Agreement on the Closing Date or the Option Closing DateTime, as applicable, a number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller Purchaser hereunder or (iii) such Forward Seller Purchaser determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such Forward Seller Purchaser would incur a stock loan cost of more than a rate equal to 200 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward SellerPurchaser), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconduct.

Issuance and Sale by the Company. (a) In the event that any (i) a Forward Seller Counterparty elects not to borrow Shares, Shares pursuant to Section 2 2(d) hereof, or any (ii) a Forward Seller Counterparty determines in good faith, after using commercially reasonable efforts, that (A) such Forward Counterparty is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Forward Shares, as applicable, to be sold by it to the Underwriters on the Closing Date or the Option Closing Date, as applicable, and deliverable by (B) such Forward Seller hereunder, or any Forward Seller determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such Forward Seller Counterparty would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller) of more than a rate equal to 200 600 basis points per annum to do so, then, upon notice by such Forward Seller Counterparty to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day business day immediately preceding the Closing Date or any Option Closing Date, as the case may be), the Company shall issue and sell to the Underwriters, pursuant to Section 2 hereof, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Forward Shares or Borrowed Additional Shares, as applicable, otherwise deliverable by such the applicable Forward Seller Counterparty hereunder that such Forward Seller does Counterparty is not required to so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives shall have the right to postpone the Closing Date or the Option Closing Date, as applicable, for one business day in order to effect any required changes in any documents or arrangements. Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a11(a) in lieu of any Borrowed Firm Forward Shares are referred to herein as the “Company Top-Up Firm Shares.” Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a) in lieu of any Borrowed Additional Shares in respect of which Additional Forward Sale Agreements have been executed are referred to herein as the “Company Top-Up Additional Initial Shares.” (b) Neither any of the A Forward Counterparties nor any of the Forward Sellers Counterparty shall not have any liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Forward Shares that such the Forward Seller Counterparty does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect to the Forward Counterparties and the Forward Sellers Counterparty are not satisfied on or prior to the Closing Date or the Option Closing Date or any additional time of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed), as applicableDate, and such Forward Seller Counterparty validly elects pursuant to Section 2 2(d) hereof not to deliver and sell to the Underwriters the Borrowed Firm Forward Shares or Borrowed Additional Shares, as applicable, deliverable by such the Forward Seller Counterparty hereunder, or (ii) such Forward Seller determines Counterparty or its affiliate is unable, acting in good faith, in its faith after using commercially reasonable judgmentefforts, it is unable to borrow and cause delivery or deliver for sale under this Agreement on at the Closing Date or the Option Closing Date, as applicable, a number of shares of Common Stock equal to the number of Borrowed Firm Forward Shares or Borrowed Additional Shares, as applicable, deliverable by such the Forward Seller Counterparty hereunder or (iii) such Forward Seller Counterparty determines in good faith, in its faith after using commercially reasonable judgmentefforts, either that it is either impracticable to do so or that such the Forward Seller Counterparty would incur a stock loan cost of more than a rate equal to 200 600 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconduct).

Issuance and Sale by the Company. (a) In the event that any the Forward Seller elects not to borrow Shares, pursuant to Section 2 hereof, or any the Forward Seller is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, to be sold purchased by it to the Underwriters on the Closing Date or the Option Closing Date, as applicable, and deliverable by such the Forward Seller hereunder, or any the Forward Seller determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such the Forward Seller would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such the Forward Seller) of more than a rate equal to 200 basis points per annum to do so, then, upon notice by such the Forward Seller to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day immediately preceding the Closing Date or any Option Closing Date, as the case may be), the Company shall issue and sell to the Underwriters, pursuant to Section 2 hereof, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such the Forward Seller hereunder that such the Forward Seller does not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives Representative shall have the right to postpone the Closing Date or the Option Closing Date, as applicable, for one business day in order to effect any required changes in any documents or arrangements. Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a) in lieu of any Borrowed Firm Shares are referred to herein as the “Company Top-Up Firm Shares.” Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a) in lieu of any Borrowed Additional Shares in respect of which an Additional Forward Sale Agreements have Agreement has been executed are referred to herein as the “Company Top-Up Additional Shares.” (b) Neither any of the Forward Counterparties Counterparty nor any of the Forward Sellers Seller shall have any liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Shares that such the Forward Seller does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect to the Forward Counterparties Counterparty and the Forward Sellers Seller are not satisfied on or prior to the Closing Date or the Option Closing Date or any additional time of purchase (in respect of any Borrowed Additional Shares in respect of which the an Additional Forward Sale Agreements have Agreement has been executed), as applicable, and such the Forward Seller elects pursuant to Section 2 hereof not to deliver and sell to the Underwriters the Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such the Forward Seller hereunder, or (ii) such the Forward Seller determines in good faith, in its commercially reasonable judgment, it is unable to borrow and cause delivery the Forward Seller to deliver for sale under this Agreement on the Closing Date or the Option Closing Date, as applicable, a number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such the Forward Seller hereunder or (iii) such the Forward Seller determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such the Forward Seller would incur a stock loan cost of more than a rate equal to 200 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such the Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconduct.

Issuance and Sale by the Company. (a) In the event that any Forward Seller elects not to, or is otherwise not required to, borrow and deliver any Borrowed Shares for sale to borrow Shares, the Underwriters pursuant to Section 2 hereof, or any Forward Seller is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to 3 hereof at the number of Borrowed Firm Shares or Borrowed Additional SharesClosing Time, as applicable, to be sold by it to the Underwriters on the Closing Date or the Option Closing Date, as applicable, and deliverable by then such Forward Seller hereunder, or any Forward Seller determines in good faith, in will use its commercially reasonable judgment, it is either impracticable efforts to do so or that such Forward Seller would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller) of more than a rate equal to 200 basis points per annum to do so, then, upon notice by such Forward Seller to notify the Company (which notice shall be delivered no later than 5:00 p.m.9:00 a.m., New York City time, on the Business Day immediately preceding at the Closing Date or any Option Closing DateTime, as the case may be), and the Company shall issue and sell to the Underwriters, pursuant to Section 2 hereof, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder that such Forward Seller does not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives shall have the right to postpone the Closing Date or the Option Closing Date, as applicable, for one business day in order to effect any required changes in any documents or arrangements. Any The shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a11(a) in lieu of any Borrowed Firm Shares are herein referred to herein collectively as the “Company Top-Up Firm Shares.” Any shares of Common Stock sold ”. In connection with any such issuance and sale by the Company, the Company to and the Underwriters pursuant shall have the right to this Section 23(a) postpone the Closing Time, for one Business Day in lieu of order to effect any Borrowed Additional Shares required changes in respect of which Additional Forward Sale Agreements have been executed are referred to herein as the “Company Top-Up Additional Sharesany documents or arrangements.” (b) Neither any of the Forward Counterparties Purchasers nor any of the Forward Sellers shall have any liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Shares that such Forward Seller does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect to the Forward Counterparties and the Forward Sellers are not satisfied on or prior to the Closing Date or the Option Closing Date or any additional time of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed), as applicable, and such Forward Seller elects not to, or is otherwise not required to, borrow and deliver for sale to the Underwriters pursuant to Section 2 hereof not to deliver and sell to the Underwriters the Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder, or (ii) such Forward Seller determines in good faith, in its commercially reasonable judgment, it is unable to borrow and cause delivery for sale under this Agreement on the Closing Date or the Option Closing Date, as applicable, a number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder or (iii) such Forward Seller determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such Forward Seller would incur a stock loan cost of more than a rate equal to 200 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconduct3 hereof.

Issuance and Sale by the Company. (a) In the event that any the Forward Seller elects not to borrow Shares, pursuant to Section 2 hereof, or any the Forward Seller is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, to be sold purchased by it to the Underwriters on the Closing Date or the Option Closing Date, as applicable, and deliverable by such the Forward Seller hereunder, or any the Forward Seller determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such the Forward Seller would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such the Forward Seller) of more than a rate equal to 200 basis points per annum to do so, then, upon notice by such the Forward Seller to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day immediately preceding the Closing Date or any Option Closing Date, as the case may be), the Company shall issue and sell to the Underwriters, pursuant to Section 2 hereof, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such the Forward Seller hereunder that such the Forward Seller does not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives shall have the right to postpone the Closing Date or the Option Closing Date, as applicable, for one business day in order to effect any required changes in any documents or arrangements. Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a) in lieu of any Borrowed Firm Shares are referred to herein as the “Company Top-Up Firm Shares.” Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a) in lieu of any Borrowed Additional Shares in respect of which an Additional Forward Sale Agreements have Agreement has been executed are referred to herein as the “Company Top-Up Additional Shares.” (b) Neither any of the Forward Counterparties Counterparty nor any of the Forward Sellers Seller shall have any liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Shares that such the Forward Seller does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect to the Forward Counterparties Counterparty and the Forward Sellers Seller are not satisfied on or prior to the Closing Date or the Option Closing Date or any additional time of purchase (in respect of any Borrowed Additional Shares in respect of which the an Additional Forward Sale Agreements have Agreement has been executed), as applicable, and such the Forward Seller elects pursuant to Section 2 hereof not to deliver and sell to the Underwriters the Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such the Forward Seller hereunder, or (ii) such the Forward Seller determines in good faith, in its commercially reasonable judgment, it is unable to borrow and cause delivery the Forward Seller to deliver for sale under this Agreement on the Closing Date or the Option Closing Date, as applicable, a number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such the Forward Seller hereunder or (iii) such the Forward Seller determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such the Forward Seller would incur a stock loan cost of more than a rate equal to 200 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such the Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconduct.

Issuance and Sale by the Company. (a) In If in respect of the event that Forward Sale Agreement and/or any Additional Forward Sale Agreement, as applicable, (i) all the Conditions are not satisfied on or prior to the First Closing Date or, in respect of any Additional Forward Sale Agreement to be entered into pursuant to Section 2(a)(iii) hereof, all the Option Conditions are not satisfied on or prior to the related Option Closing Date, as the case may be, and the Forward Seller elects not to borrow Shareselects, pursuant to Section 2 2(b) or 2(c) hereof, as the case may be, not to deliver and sell to the Underwriter the Borrowed Firm Shares or any the Borrowed Option Shares, as applicable, otherwise deliverable by the Forward Seller, (ii) in the Forward Purchaser’s good faith and commercially reasonable judgment the Forward Seller is unable to borrow and deliver for sale under this Agreement a the number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Option Shares, as applicable, to be sold by it to the Underwriters on the Closing Date or the Option Closing Date, as applicable, and deliverable by such the Forward Seller hereunder, hereunder or any (iii) in the Forward Seller determines in Purchaser’s good faith, in its faith and commercially reasonable judgment, it is either impracticable to do so or that such judgment the Forward Seller would incur a stock loan cost Stock Loan Fee (excludingas defined under the Forward Sale Agreement or relevant Additional Forward Sale Agreement, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Selleras applicable) of more than a rate equal to 200 basis points per annum to do so, then, upon notice by such Forward Seller to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day immediately preceding the Closing Date or any Option Closing Date, as the case may be)in each case, the Company shall issue and sell to the UnderwritersUnderwriter, pursuant to Section 2 hereof2(a)(iii) or 2(a)(iv), as the case may be, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Option Shares, as applicablethe case may be, deliverable by such Forward Seller hereunder that such the Forward Seller does not so deliver and sell to the UnderwritersUnderwriter. In connection with any such issuance and sale by the Company, the Company or the Representatives Underwriter shall have the right to postpone the relevant Closing Date or the Option Closing Date, as applicable, for one a period not exceeding two (2) business day days in order to effect any required changes in any documents or arrangements. Any The shares of Common Stock sold by the Company to the Underwriters Underwriter pursuant to this Section 23(a12(a) in lieu of any Borrowed Firm Shares are referred to herein as the “Company Top-Up Firm Shares.” Any and the shares of Common Stock sold by the Company to the Underwriters Underwriter pursuant to this Section 23(a12(a) in lieu of any Borrowed Additional Option Shares in respect of which Additional Forward Sale Agreements have been executed are referred to herein as the “Company Top-Up Additional Option Shares.” (b) Neither any of the Forward Counterparties Seller nor any of the Forward Sellers Purchaser shall have any liability whatsoever for any Borrowed Firm Shares or Borrowed underlying the Forward Sale Agreement and/or any Additional Shares Forward Sale Agreement, as applicable, that such the Forward Seller does not deliver and sell to the Underwriters Underwriter or any other party if (i) all of the Conditions with respect to the Forward Counterparties and the Forward Sellers are not satisfied on or prior to the First Closing Date Date, in the case of Borrowed Firm Shares, or all of the Option Conditions are not satisfied on or prior to the relevant Option Closing Date or any additional time Date, in the case of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed), as applicableOption Shares, and such the Forward Seller elects elects, pursuant to Section 2 hereof 2(b) or 2(c) hereof, as the case may be, not to deliver and sell to the Underwriters Underwriter the Borrowed Firm Shares or the Borrowed Additional Option Shares (or, in the case of the Borrowed Option Shares, a pro rata portion thereof if the Underwriter’s option is not exercised in full), as applicable, otherwise deliverable by such the Forward Seller hereunderSeller, or (ii) such in the Forward Seller determines in Purchaser’s good faith, in its commercially reasonable judgment, it the Forward Seller is unable to borrow and cause delivery deliver for sale under this Agreement on the Closing Date or the Option Closing Date, as applicable, a number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Option Shares, as applicable, deliverable by such the Forward Seller hereunder or (iii) such in the Forward Seller determines in Purchaser’s good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such the Forward Seller would incur a stock loan cost Stock Loan Fee (as defined under the Forward Sale Agreement or relevant Additional Forward Sale Agreement, as applicable) of more than a rate equal to 200 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconductso.

Issuance and Sale by the Company. (a) In the event that any (i) all the Conditions are not satisfied on the Closing Date and the Forward Seller elects not to borrow Shareselects, pursuant to Section 2 hereof2(a)(ii), or any not to deliver the Borrowed Firm Shares deliverable by the Forward Seller, (ii) in the Forward Seller’s commercially reasonable judgment, the Forward Seller is unable unable, after using commercially reasonable efforts, to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the number of the Borrowed Firm Shares or Borrowed Additional Shares, as applicable, to be sold by it to (iii) in the Underwriters on the Closing Date or the Option Closing Date, as applicable, and deliverable by such Forward Seller hereunder, or any Forward Seller determines in good faith, in its Purchaser’s commercially reasonable judgment, it is either impracticable to do so borrow and deliver for sale under this Agreement a number of shares of Stock equal to the number of the Borrowed Firm Shares, or that such (iv) in the Forward Purchaser’s commercially reasonable judgment, the Forward Seller would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller) of more than a rate equal to 200 25 basis points per annum to do so, then, upon notice by such Forward Seller borrow and deliver for sale under this Agreement a number of shares of Stock equal to the Company (which notice shall be delivered no later than 5:00 p.m.number of the Borrowed Firm Shares, New York City time, on the Business Day immediately preceding the Closing Date or any Option Closing Date, as the case may be), then the Company shall issue and sell to the Underwriters, pursuant to Section 2 hereof, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder that such the Forward Seller does not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or Representatives, the Representatives Forward Purchaser and the Forward Seller shall have the right to postpone the Closing Date or the Option Closing Date, as applicable, for a period not exceeding one business day in order to effect any required changes in any documents or arrangements. Any The shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a11(a) in lieu of any Borrowed Firm Shares are referred to herein as the “Company Top-Up Firm Shares.” Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a) in lieu of any Borrowed Additional Shares in respect of which Additional Forward Sale Agreements have been executed are referred to herein as the “Company Top-Up Additional Shares.” (b) Neither any of the Forward Counterparties Purchaser nor any of the Forward Sellers Seller shall have any liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Shares that such the Forward Seller does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect to the Forward Counterparties and the Forward Sellers are not satisfied on or prior to the Closing Date or and the Option Closing Date or any additional time of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed), as applicable, and such Forward Seller elects elects, pursuant to Section 2 hereof 2(a)(ii) hereof, not to deliver and sell to the Underwriters the Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder, or (ii) such in the Forward Seller determines in good faith, in its Seller’s commercially reasonable judgment, it the Forward Seller is unable unable, after using commercially reasonable efforts, to borrow and cause delivery deliver for sale under this Agreement on the Closing Date or the Option Closing Date, as applicable, a number of shares of Common Stock equal to the number of the Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder or (iii) such in the Forward Seller determines in good faith, in its Purchaser’s commercially reasonable judgment, it is either impracticable to do so borrow and deliver for sale under this Agreement on the Closing Date a number of shares of Stock equal to the number of the Borrowed Firm Shares or that such (iv) in the Forward Purchaser’s commercially reasonable judgment, the Forward Seller would incur a stock loan cost of more than a rate equal to 200 25 basis points per annum to do so (excluding, borrow and deliver for sale under this Agreement on the avoidance Closing Date a number of doubt, shares of Stock equal to the federal funds rate component payable by number of the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconductBorrowed Firm Shares.

Issuance and Sale by the Company. (a) In the event that (i) all the Conditions are not satisfied on or prior to the Closing Date or, in respect of any Additional Forward Sale Agreement entered into pursuant to Section 3(c), all the Additional Conditions are not satisfied on the Closing Date or the applicable Subsequent Closing Date, if any, as the case may be, and the Forward Seller elects not to borrow Shareselects, pursuant to Section 2 3(d) or Section 3(e) hereof, as the case may be, not to deliver the Borrowed Underwritten Shares or any the Borrowed Option Shares deliverable by the Forward Seller, as applicable, (ii) in the Forward Purchaser’s commercially reasonable judgment, the Forward Seller is unable unable, after using commercially reasonable efforts, to borrow and deliver for sale under this Agreement a number of shares of Common Stock Shares equal to the number of the Borrowed Firm Underwritten Shares or Borrowed Additional Option Shares, as applicable, to be sold borrowed and delivered for sale by it to the Underwriters on the Closing Date or the Option Closing Date, as applicable, and deliverable by such Forward Seller hereunder, under this Agreement or any (iii) in the Forward Seller determines in good faith, in its commercially reasonable Purchaser’s sole judgment, it is either impracticable to do so or that such the Forward Seller would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller) of more than a rate equal to 200 basis points per annum to do so, then, upon notice by such Forward Seller to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day immediately preceding the Closing Date or any Option Closing Date, as the case may be)in each case, the Company shall issue and sell to the Underwriters, pursuant to Section 2 3 hereof, in whole but not in part, an aggregate number of shares of Common Stock Shares equal to the number of Borrowed Firm Underwritten Shares or Borrowed Additional Option Shares, as applicablethe case may be, deliverable by such Forward Seller hereunder that such the Forward Seller does not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives shall have the right to postpone the Closing Date or the Option applicable Subsequent Closing Date, as applicablethe case may be, for one a period not exceeding two business day days in order to effect any required changes in any documents or arrangements. Any shares of The Common Stock Shares sold by the Company to the Underwriters pursuant to this Section 23(a11(a) in lieu of any Borrowed Firm Underwritten Shares are referred to herein as the “Company Top-Up Firm Underwritten Shares.,” Any shares of and the Common Stock Shares sold by the Company to the Underwriters pursuant to this Section 23(a11(a) in lieu of any Borrowed Additional Option Shares in respect of which Additional Forward Sale Agreements have been executed are referred to herein as the “Company Top-Up Additional Option Shares.” (b) Neither any of the Forward Counterparties Purchaser nor any of the Forward Sellers Seller shall have any liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Shares that such the Forward Seller does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect are not satisfied on or prior to the Forward Counterparties and Closing Date, in the Forward Sellers case of Borrowed Underwritten Shares, or all of the Additional Conditions are not satisfied on or prior to the Closing Date or the applicable Subsequent Closing Date, in the case of Borrowed Option Closing Date or any additional time of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed), as applicableShares, and such the Forward Seller elects elects, pursuant to Section 2 hereof 3(d) or Section 3(e) hereof, as the case may be, not to deliver and sell to the Underwriters the Borrowed Firm Underwritten Shares or the Borrowed Additional Option Shares, as applicable, deliverable by such Forward Seller hereunder, or (ii) such in the Forward Seller determines in good faith, in its Purchaser’s commercially reasonable judgment, it the Forward Seller is unable unable, after using commercially reasonable efforts, to borrow and cause delivery deliver for sale under this Agreement on the Closing Date or the Option relevant Subsequent Closing Date, as applicablethe case may be, a number of shares of Common Stock Shares equal to the number of the Borrowed Firm Underwritten Shares or Borrowed Additional Option Shares, as applicable, deliverable to be borrowed and delivered for sale by such the Forward Seller hereunder under this Agreement or (iii) such in the Forward Seller determines in good faith, in its commercially reasonable Purchaser’s sole judgment, it is either impracticable to do so or that such the Forward Seller would incur a stock loan cost of more than a rate equal to 200 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconductso.

Issuance and Sale by the Company. (a) In the event that any (i) the Forward Seller Counterparty elects not to borrow Shares, Shares pursuant to Section 2 1(c) hereof, (ii) the Forward Counterparty or any Forward Seller its affiliate is unable to borrow and cause the Forward Seller to deliver for sale under this Agreement a number of shares of Common Stock equal to the number of Borrowed Firm Initial Shares or Borrowed Additional Option Shares, as applicable, to be sold purchased by it to the Underwriters on at the Closing Date Time or the Option Closing DateDate of Delivery, as applicable, and deliverable by such the Forward Seller hereunder, or any (iii) the Forward Seller Counterparty determines in good faith, in its commercially reasonable judgment, either that it is either impracticable to do so or that such the Forward Seller Counterparty would incur a stock loan cost (fee, excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to the Forward Counterparty (such Forward Seller) stock loan fee, a “Stock Loan Fee”), of more than a rate equal to 200 basis points per annum to do so, then, upon notice by such the Forward Seller to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day business day immediately preceding the Closing Date Time or any Option Closing DateDate of Delivery, as the case may be), the Company shall issue and sell to the Underwriters, pursuant to Section 2 1(a) hereof, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Initial Shares or Borrowed Additional Option Shares, as applicable, otherwise deliverable by such the Forward Seller hereunder that such the Forward Seller does not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives shall have the right to postpone the Closing Date Time or the Option Closing DateDate of Delivery, as applicable, for one business day in order to effect any required changes in any documents or arrangements. Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a19(a) in lieu of any Borrowed Firm Initial Shares are referred to herein as the “Company Top-Up Firm Initial Shares.” Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a19(a) in lieu of any Borrowed Additional Option Shares in respect of which Additional Forward Sale Agreements have been executed are referred to herein as the “Company Top-Up Additional Option Shares.” (b) Neither any of the Forward Counterparties Counterparty nor any of the Forward Sellers Seller shall have any liability whatsoever for any Borrowed Firm Initial Shares or Borrowed Additional Option Shares that such the Forward Seller does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect to the Forward Counterparties Counterparty and the Forward Sellers Seller are not satisfied on or prior to the Closing Date Time or the Option Closing Date or any additional time of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed)Delivery, as applicable, and such the Forward Seller elects pursuant to Section 2 1(c) hereof not to deliver and sell to the Underwriters the Borrowed Firm Initial Shares or Borrowed Additional Option Shares, as applicable, deliverable by such the Forward Seller hereunder, or (ii) such the Forward Seller determines in good faith, in Counterparty or its commercially reasonable judgment, it affiliate is unable to borrow and cause delivery the Forward Seller to deliver for sale under this Agreement on at the Closing Date Time or the Option Closing DateDate of Delivery, as applicable, a number of shares of Common Stock equal to the number of Borrowed Firm Initial Shares or Borrowed Additional Option Shares, as applicable, deliverable by such the Forward Seller hereunder or (iii) such the Forward Seller Counterparty determines in good faith, in its commercially reasonable judgment, either that it is either impracticable to do so or that such the Forward Seller Counterparty would incur a stock loan cost Stock Loan Fee of more than a rate equal to 200 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconduct). If the foregoing correctly sets forth the understanding among the Company, the Underwriters, the Forward Seller and the Forward Counterparty, please so indicate in the space provided below for the purpose, whereupon this Agreement shall constitute a binding agreement among the Company, the Underwriters, the Forward Seller and the Forward Counterparty. Very truly yours, AMERICAN EQUITY INVESTMENT LIFE HOLDING COMPANY By /s/ Xxxx X. Xxxxxxxx Name: Xxxx X. Xxxxxxxx Title: Chief Executive Officer and President RBC CAPITAL MARKETS, LLC, in its capacity as the Forward Seller By /s/ Xxxxxxxx Xxxxx Name: Xxxxxxxx Xxxxx Title: Managing Director RBC CAPITAL MARKETS, LLC, as agent for ROYAL BANK OF CANADA, in its capacity as the Forward Counterparty By /s/ Xxx Xxxxxxx Name: Xxx Xxxxxxx Title: Associate Director Accepted and agreed to as of the date first above written, on behalf of themselves and the several other Underwriters named on Schedule I hereto: RBC CAPITAL MARKETS, LLC By /s/ Xxxxxxxx Xxxxx Name: Xxxxxxxx Xxxxx Title: Managing Director X.X. XXXXXX SECURITIES LLC By /s/Xxx Xxxxx Name: Xxx Xxxxx Title: Managing Director RBC Capital Markets, LLC 1,075,000 1,075,000 X.X. Xxxxxx Securities LLC 1,075,000 1,075,000 Citigroup Global Markets Inc. 430,000 430,000 FBR Capital Markets & Co. 430,000 430,000 Xxxxxxx Xxxxx & Associates, Inc. 430,000 430,000 SunTrust Xxxxxxxx Xxxxxxxx, Inc. 645,000 645,000 Sandler X’Xxxxx & Partners, L.P. 215,000 215,000 Total 4,300,000 4,300,000 A. Issuer Free Writing Prospectus to be included in the Time of Sale Information: None. B. Pricing Information provided orally by the Underwriters: Public offering price per share: $25.25 Xxxxx X. Xxxxx Xxxx X. Xxxxxxxx Xxx X. Xxxxxxx Xxxxx X. Xxxxxxxxxx Xxxxxx X. Xxxxxxxxxxx Xxxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxxxx Xxxxx X. Xxxxxxxxx RBC CAPITAL MARKETS, LLC X.X. XXXXXX SECURITIES LLC As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o RBC Capital Markets, LLC 000 Xxxxx Xxxxxx, 11th Floor New York, New York 10281 X.X. Xxxxxx Securities LLC 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Re: AMERICAN EQUITY INVESTMENT LIFE HOLDING COMPANY — Common Stock Offering Ladies and Gentlemen: The undersigned understands and agrees as follows: 1. RBC Capital Markets, LLC (“RBC”) and X.X. Xxxxxx Securities LLC (“JPM”), as representatives of the several underwriters (the “Underwriters”), propose to enter into an Underwriting Agreement (the “Agreement”) with American Equity Investment Life Holding Company, an Iowa corporation (the “Company”), providing for the public offering by the Underwriters, including RBC and JPM, of common stock, par value $1 per share (the “Common Stock”), of the Company (the “Offering”). 2. In recognition of the benefit that the Offering will confer upon the undersigned and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the undersigned, the undersigned hereby agrees that, without the prior written consent of RBC and JPM (which consent may be withheld or delayed in sole discretion of RBC and JPM), he, she or it will refrain during the period commencing on the date hereof and ending on the date that is 60 days after the date of the Agreement (the “Lock-Up Period”), from (i) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option, right or warrant for the sale of, lending or otherwise disposing of or transferring, directly or indirectly, any equity securities of the Company, or any securities convertible into or exercisable or exchangeable for equity securities of the Company, or (ii) entering into any swap or other arrangement that transfers to another, in whole or in part, directly or indirectly, any of the economic consequences of ownership of equity securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of common stock of the Company or such other securities, in cash or otherwise, or (iii) publicly disclose the intention to enter into any transaction of the type described in clause (i) or (ii) above that has not been previously disclosed.

Issuance and Sale by the Company. (a) In the event that any (i) all the Conditions are not satisfied on or prior to the Closing Date, and the Forward Seller elects not to borrow Shareselects, pursuant to Section 2 hereof3(c), or any not to deliver the Borrowed Shares deliverable by the Forward Seller, (ii) in the Forward Purchaser’s commercially reasonable judgment, after using commercially reasonable efforts, the Forward Seller is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock Shares equal to the number of the Borrowed Firm Shares or Borrowed Additional Shares, as applicable, to be sold borrowed and delivered for sale by it to the Underwriters on the Closing Date or the Option Closing Date, as applicable, and deliverable by such Forward Seller hereunder, under this Agreement or any (iii) in the Forward Seller determines in good faith, in its Purchaser’s commercially reasonable judgment, it is either impracticable to do so or that such after using commercially reasonable efforts, the Forward Seller would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller) of more than a rate equal to 200 basis points per annum to do so, then, upon notice by such Forward Seller to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day immediately preceding the Closing Date or any Option Closing Date, as the case may be)in each case, the Company shall issue and sell to the Underwriters, pursuant to Section 2 3 hereof, in whole but not in part, an aggregate number of shares of Common Stock Shares equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder that such the Forward Seller does not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives shall have the right to postpone the Closing Date Date, or the Option Closing Date, as applicablethe case may be, for one a period not exceeding three business day days in order to effect any required changes in any documents or arrangements. Any shares of Common Stock The Shares sold by the Company to the Underwriters pursuant to this Section 23(a13(a): (i) in lieu of any Underwritten Borrowed Firm Shares are referred to herein as the “Company Top-Up Firm Underwritten Shares.” Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(aand (ii) in lieu of any Borrowed Additional Option Shares in respect of which Additional Forward Sale Agreements have been executed are referred to herein as the “Company Top-Up Additional Option Shares.” (b) Neither any of the Forward Counterparties Purchaser nor any of the Forward Sellers Seller shall have any liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Shares that such the Forward Seller does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect to the Forward Counterparties and the Forward Sellers are not satisfied on or prior to the Closing Date Date, or the Option Closing Date or any additional time of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed)Date, as applicablethe case may be, and such the Forward Seller elects elects, pursuant to Section 2 hereof 3(c), not to deliver and sell to the Underwriters the Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder, or (ii) such in the Forward Seller determines in good faith, in its Purchaser’s commercially reasonable judgment, it the Forward Seller is unable to borrow and cause delivery deliver for sale under this Agreement on the Closing Date Date, or the Option Closing Date, as applicablethe case may be, a number of shares of Common Stock Shares equal to the number of the Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable to be borrowed and delivered for sale by such the Forward Seller hereunder under this Agreement or (iii) such in the Forward Seller determines in good faith, in its Purchaser’s commercially reasonable judgment, it is either impracticable to do so or that such the Forward Seller would incur a stock loan cost of more than a rate equal to 200 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconductso.

Issuance and Sale by the Company. (a) In the event that (i) all the Conditions are not satisfied on or prior to the Closing Time or, in respect of any Additional Forward Sale Agreement entered into pursuant to Section 3(c), all the Additional Conditions are not satisfied at the Closing Time or the applicable Date of Delivery, if any, as the case may be, and the Forward Seller elects not to borrow Shareselects, pursuant to Section 2 3(d) or Section 3(e) hereof, as the case may be, not to deliver the Borrowed Underwritten Shares or any the Borrowed Option Shares deliverable by the Forward Seller, as applicable, (ii) in the Forward Purchaser’s commercially reasonable judgment, the Forward Seller is unable unable, after using commercially reasonable efforts, to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the number of the Borrowed Firm Underwritten Shares or Borrowed Additional Option Shares, as applicable, to be sold borrowed and delivered for sale by it to the Underwriters on the Closing Date or the Option Closing Date, as applicable, and deliverable by such Forward Seller hereunder, under this Agreement or any (iii) in the Forward Seller determines in good faith, in its commercially reasonable Purchaser’s sole judgment, it is either impracticable to do so or that such the Forward Seller would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller) of more than a rate equal to 200 basis points per annum to do so, then, upon notice by such Forward Seller to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day immediately preceding the Closing Date or any Option Closing Date, as the case may be)in each case, the Company shall issue and sell to the UnderwritersUnderwriter, pursuant to Section 2 3 hereof, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Underwritten Shares or Borrowed Additional Option Shares, as applicablethe case may be, deliverable by such Forward Seller hereunder that such the Forward Seller does not so deliver and sell to the UnderwritersUnderwriter. In connection with any such issuance and sale by the Company, the Company or the Representatives shall have the right to postpone the Closing Date Time or the Option Closing Dateapplicable Date of Delivery, as applicablethe case may be, for one a period not exceeding two business day days in order to effect any required changes in any documents or arrangements. Any shares of The Common Stock sold by the Company to the Underwriters Underwriter pursuant to this Section 23(a11(a) in lieu of any Borrowed Firm Underwritten Shares are referred to herein as the “Company Top-Up Firm Underwritten Shares.,” Any shares of and the Common Stock sold by the Company to the Underwriters Underwriter pursuant to this Section 23(a11(a) in lieu of any Borrowed Additional Option Shares in respect of which Additional Forward Sale Agreements have been executed are referred to herein as the “Company Top-Up Additional Option Shares.” (b) Neither any of the Forward Counterparties Purchaser nor any of the Forward Sellers Seller shall have any liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Shares that such the Forward Seller does not deliver and sell to the Underwriters Underwriter or any other party if (i) all of the Conditions with respect to the Forward Counterparties and the Forward Sellers are not satisfied on or prior to the Closing Date Time, in the case of Borrowed Underwritten Shares, or all of the Additional Conditions are not satisfied on or prior to the Closing Time or the applicable Date of Delivery, in the case of Borrowed Option Closing Date or any additional time of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed), as applicableShares, and such the Forward Seller elects elects, pursuant to Section 2 hereof 3(d) or Section 3(e) hereof, as the case may be, not to deliver and sell to the Underwriters Underwriter the Borrowed Firm Underwritten Shares or the Borrowed Additional Option Shares, as applicable, deliverable by such Forward Seller hereunder, or (ii) such in the Forward Seller determines in good faith, in its Purchaser’s commercially reasonable judgment, it the Forward Seller is unable unable, after using commercially reasonable efforts, to borrow and cause delivery deliver for sale under this Agreement on at the Closing Date Time or the Option Closing Daterelevant Date of Delivery, as applicablethe case may be, a number of shares of Common Stock equal to the number of the Borrowed Firm Underwritten Shares or Borrowed Additional Option Shares, as applicable, deliverable to be borrowed and delivered for sale by such the Forward Seller hereunder under this Agreement or (iii) such in the Forward Seller determines in good faith, in its commercially reasonable Purchaser’s sole judgment, it is either impracticable to do so or that such the Forward Seller would incur a stock loan cost of more than a rate equal to 200 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconductso.

Issuance and Sale by the Company. (a) In the event that (i) all the conditions to effectiveness set forth in Section 3 of the Forward Sale Agreement are not satisfied on or prior to the First Closing Date or, in respect of any Additional Forward Sale Agreement entered into pursuant to Section 3(b)(i), all the Additional Conditions are not satisfied on any Optional Closing Date, as the case may be, and the Forward Seller elects not to borrow Shareselects, pursuant to Section 2 3(c) or Section 3(d) hereof, as the case may be, not to deliver the Borrowed Firm Securities or any the Borrowed Optional Securities deliverable by the Forward Seller, as applicable, (ii) the Forward Seller is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock Shares equal to the number of the Borrowed Firm Shares Securities or Borrowed Additional SharesOptional Securities, as applicable, to be sold by it to applicable or (iii) in the Underwriters on the Closing Date or the Option Closing Date, as applicable, and deliverable by such Forward Seller hereunder, or any Forward Seller determines in good faith, in its Purchaser’s commercially reasonable judgment, it is either impracticable to do so or that such the Forward Seller would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller) of more than a rate equal to 200 75 basis points per annum to do so, then, upon notice by such Forward Seller to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day immediately preceding the Closing Date or any Option Closing Date, as the case may be)in each case, the Company shall issue and sell to the Underwriters, pursuant to Section 2 3 hereof, in whole but not in part, an aggregate number of shares of Common Stock Shares equal to the number of Borrowed Firm Shares Securities or Borrowed Additional SharesOptional Securities, as applicablethe case may be, deliverable by such Forward Seller hereunder that such the Forward Seller does not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives shall have the right to postpone the Closing Date or the Option relevant Optional Closing Date, as applicablethe case may be, for a period not exceeding one business day in order to effect any required changes in any documents or arrangements. Any shares of The Common Stock Shares sold by the Company to the Underwriters pursuant to this Section 23(a9(a) in lieu of any Borrowed Firm Shares Securities are referred to herein as the “Company Top-Up Firm Shares.Securities,” Any shares of and the Common Stock Shares sold by the Company to the Underwriters pursuant to this Section 23(a9(a) in lieu of any Borrowed Additional Shares in respect of which Additional Forward Sale Agreements have been executed Optional Securities are referred to herein as the “Company Top-Up Additional SharesOptional Securities.” (b) Neither any of the Forward Counterparties Purchaser nor any of the Forward Sellers Seller shall have any liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Shares Securities that such the Forward Seller does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect conditions to effectiveness set forth in Section 3 of the Forward Counterparties and the Forward Sellers Sale Agreement are not satisfied on or prior to the Closing Date Date, in the case of Borrowed Firm Securities, or the Option Closing Date or any additional time all of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed)Conditions are not satisfied on or prior to the relevant Optional Closing Date, as applicablein the case of Borrowed Optional Securities, and such the Forward Seller elects elects, pursuant to Section 2 hereof 3(c) or Section 3(d) hereof, as the case may be, not to deliver and sell to the Underwriters the Borrowed Firm Shares Securities or the Borrowed Additional SharesOptional Securities, as applicable, deliverable by such Forward Seller hereunder, or (ii) such the Forward Seller determines in good faith, in its commercially reasonable judgment, it is unable to borrow and cause delivery deliver for sale under this Agreement on the Closing Date or the Option any Optional Closing Date, as applicablethe case may be, a number of shares of Common Stock Shares equal to the number of the Borrowed Firm Shares Securities or Borrowed Additional SharesOptional Securities, as applicable, deliverable by such Forward Seller hereunder applicable or (iii) such in the Forward Seller determines in good faith, in its Purchaser’s commercially reasonable judgment, it is either impracticable to do so or that such the Forward Seller would incur a stock loan cost of more than a rate equal to 200 75 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconductso.

Issuance and Sale by the Company. (a) In the event that any of the Forward Seller elects not to borrow Shares, pursuant to Section 2 hereof, or any Forward Seller is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the Underwriters at the Time of Delivery the total number of Borrowed Firm Shares or at the Additional Time of Delivery (if any) the total number of Borrowed Additional Option Shares, as applicable, to be sold by it to the Underwriters on the Closing Date or the Option Closing Date, as applicable, and deliverable by such Forward Seller hereunder, or any Forward Seller determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such Forward Seller would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller) of more than a rate equal to 200 basis points per annum to do so, then, upon notice by such Forward Seller to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day immediately preceding the Closing Date or any Option Closing Date, as the case may be)in each case, the Company shall issue and sell to the Underwriters, pursuant to Section 2 4(c) or Section 4(d) hereof, as the case may be, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Option Shares, as applicablethe case may be, deliverable by such Forward Seller hereunder that such Forward Seller does not so borrow and deliver and sell to the Underwritersfor sale. In connection with any such issuance and sale by the Company, the Company or the Representatives each shall have the right to postpone the Closing Date Time of Delivery or the Option Closing DateAdditional Time of Delivery, as applicablethe case may be, for one a period not exceeding three business day days in order to effect any required changes in any documents or arrangements. Any The shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a11(a) in lieu of any Borrowed Firm Shares are referred to herein as the “Company Top-Up Firm Shares.” Any and the shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a11(a) in lieu of any Borrowed Additional Option Shares in respect of which Additional Forward Sale Agreements have been executed are referred to herein as the “Company Top-Up Additional Option Shares.” (b) Neither any of the Forward Counterparties nor any of the Forward Sellers shall have any liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Shares that such Forward Seller does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect to the Forward Counterparties and the Forward Sellers are not satisfied on or prior to the Closing Date or the Option Closing Date or any additional time of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed), as applicable, and such Forward Seller elects pursuant to Section 2 hereof not to deliver and sell to the Underwriters the Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder, or (ii) such Forward Seller determines in good faith, in its commercially reasonable judgment, it is unable to borrow and cause delivery for sale under this Agreement on the Closing Date or the Option Closing Date, as applicable, a number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder or (iii) such Forward Seller determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such Forward Seller would incur a stock loan cost of more than a rate equal to 200 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconduct.

Issuance and Sale by the Company. (a) In the event that any the Forward Seller Counterparty elects not to borrow Shares, pursuant to Section 2 2(c) hereof, or any the Forward Seller Counterparty (or its affiliate) is unable to borrow and cause the Forward Seller to deliver for sale under this Agreement a number of shares of Common Stock equal to the number of Borrowed Firm Initial Shares or Borrowed Additional Shares, as applicable, to be sold purchased by it to the Underwriters on at the Closing Date Time of Delivery or the Option Closing DateDate of Delivery, as applicable, and deliverable by such the Forward Seller hereunder, or any the Forward Seller Counterparty determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so that the Forward Counterparty (or that such Forward Seller its affiliate) would incur a stock loan cost (fee, excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to the Forward Counterparty (or its affiliate) (such Forward Seller) stock loan fee, a “Stock Loan Fee”), of more than a rate equal to 200 300 basis points per annum to do so, then, upon notice by such the Forward Seller to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day immediately preceding the Closing Date Time of Delivery or any Option Closing DateDate of Delivery, as the case may be), the Company shall issue and sell to the Underwriters, pursuant to Section 2 Sections 2(a) and (c) hereof, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Initial Shares or Borrowed Additional Shares, as applicable, deliverable by such the Forward Seller hereunder that such the Forward Seller does not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives Underwriters shall have the right to postpone the Closing Date Time of Delivery or the Option Closing DateDate of Delivery, as applicable, for one business day in order to effect any required changes in any documents or arrangements. Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a16(a) in lieu of any Borrowed Firm Initial Shares are referred to herein as the “Company Top-Up Firm Initial Shares.” Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a16(a) in lieu of any Borrowed Additional Shares in respect of which Additional Forward Sale Agreements have been executed are referred to herein as the “Company Top-Up Additional Shares.” (b) Neither any of the Forward Counterparties Counterparty (and its affiliates) nor any of the Forward Sellers Seller shall have any liability whatsoever for any Borrowed Firm Initial Shares or Borrowed Additional Shares that such the Forward Seller does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect to the Forward Counterparties Counterparty and the Forward Sellers Seller are not satisfied on or prior to the Closing Date Time of Delivery or the Option Closing Date or any additional time of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed)Delivery, as applicable, and such the Forward Seller elects pursuant to Section 2 2(c) hereof not to deliver and sell to the Underwriters the Borrowed Firm Initial Shares or Borrowed Additional Shares, as applicable, deliverable by such the Forward Seller hereunder, or (ii) such the Forward Seller determines in good faith, in Counterparty (or its commercially reasonable judgment, it affiliate) is unable to borrow and cause delivery the Forward Seller to deliver for sale under this Agreement on at the Closing Date Time of Delivery or the Option Closing DateDate of Delivery, as applicable, a number of shares of Common Stock equal to the number of Borrowed Firm Initial Shares or Borrowed Additional Shares, as applicable, deliverable by such the Forward Seller hereunder or (iii) such the Forward Seller Counterparty determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so that the Forward Counterparty (or that such Forward Seller its affiliate) would incur a stock loan cost Stock Loan Fee of more than a rate equal to 200 300 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconduct). If the foregoing correctly sets forth the understanding among the Company, the Underwriters, the Forward Seller and the Forward Counterparty, please so indicate in the space provided below for the purpose, whereupon this Agreement shall constitute a binding agreement among the Company, the Underwriters, the Forward Seller and the Forward Counterparty. Very truly yours, By: /s/ Xxxxx X. Xxxxxxxx Name: Xxxxx X. Xxxxxxxx Title: Executive Vice President, General Counsel and Secretary Accepted: June 6, 2016 By /s/ Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx Title: Managing Director Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, in its capacity as the Forward Seller and agent for Bank of America, N.A. By /s/ Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx Title: Managing Director Bank of America, N.A., in its capacity as Forward Counterparty, solely as the recipient and/or beneficiary of certain representations, warranties, covenants and indemnities set forth in this Agreement By /s/ Xxxxx Xxxxx Name: Xxxxx Xxxxx Title: Managing Director Accepted: June 6, 2016 By /s/ Xxxxx Xxxxxx Name: Xxxxx Xxxxxx Title: Managing Director Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 0 1,250,000 Barclays Capital Inc. 0 1,250,000 Total 0 2,500,000 Time of Sale: 11:59 p.m. New York City time on June 6, 2016. None. Each Named Executive Officer and Director of Affiliated Managers Group, Inc. Re: Affiliated Managers Group, Inc. — Public Offering Ladies and Gentlemen: The undersigned understands that you, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Barclays Capital Inc., acting as the Underwriters (the “Underwriters”), propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with Affiliated Managers Group, Inc., a Delaware corporation (the “Company”) and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, in its capacity as agent for Bank of America, N.A., in its capacity as Forward Counterparty (as defined therein), providing for the public offering (the “Public Offering”) of common stock, of the Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Securities, and for other good and valuable consideration receipt of which is hereby acknowledged, the undersigned hereby agrees that, without the prior written consent of the Underwriters, the undersigned will not, during the period beginning on the date hereof and ending on the date that is 45 days from the date of the Underwriting Agreement (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock, $0.01 per share par value, of the Company (the “Common Stock”) or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant), or publicly disclose the intention to make any offer, sale, pledge or disposition, (2) enter into any swap or other agreement that transfers, in whole or in part, directly or indirectly, any of the economic consequences of ownership of the Common Stock or such other securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (3) make any demand for or exercise any right with respect to the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock, or file or cause to be filed any registration statement in connection therewith, under the Securities Act of 1933, as amended, in each case other than with respect to: (A) transfers of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock as a bona fide gift or gifts; (B) if the undersigned is a corporation, partnership or other business entity, transfers or distributions of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock to limited or general partners, members, stockholders or direct or indirect affiliates of the undersigned, including investment funds or other entities under common control or management with the undersigned; (C) transfers of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock as a result of the operation of law through estate, other testamentary document or intestate succession to the estate, legal representative, heir, legatee, distributee, beneficiary or a member of the immediate family member of the undersigned (for purposes hereof, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin); (D) transfers of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock to any immediate family member of the undersigned or any trust for the direct or indirect benefit of the undersigned or any immediate family; (E) the vesting, conversion, exercise or exchange of securities convertible into or exercisable or exchangeable for Common Stock and any related transfer to the Company of shares of Common Stock (i) deemed to occur upon the exercise of such securities, (ii) for the purpose of paying the exercise price of such securities or for paying taxes (including estimated taxes) due as a result of the exercise of such securities; or (iii) pursuant to the call provisions of existing employment agreements and equity grant documents; (F) transfers of shares of Common Stock or any other security convertible into or exercisable or exchangeable for Common Stock to the Underwriters pursuant to the Underwriting Agreement; (G) the establishment of a trading plan pursuant to Rule 10b-5-1 under the Exchange Act for the transfer of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock, provided that (i) such plan does not provide for the transfer of Common Stock during the lock-up period and (ii) such plan is not required to be reported in any public report or filing with the Securities Exchange Commission, or otherwise during the lock-up period; (H) transfers of shares of Common Stock or any other security convertible into or exercisable or exchangeable for Common Stock pursuant to a bona fide third-party tender offer for all or substantially all of the outstanding shares of Common Stock, merger, consolidation or other similar transaction made to all holders of Common Stock involving a change of control of the Company, provided that in the event that the tender offer, merger, consolidation or other such transaction is not completed, the Common Stock owned by each of the undersigned shall remain subject to the restrictions contained in this agreement; (I) if the undersigned is a trust, transfers of shares of Common Stock or any other security convertible into or exercisable or exchangeable for Common Stock to the beneficiary of such trust or any successor trustee or co-trustee of such trust; (J) if the undersigned in an employee of the Company, transfers of shares of Common Stock or any other security convertible into or exercisable or exchangeable for Common Stock to the Company upon the death, disability or termination of employment of such employee; and (K) transfers of shares of Common Stock or any other security convertible into or exercisable or exchangeable for Common Stock pursuant to an order of a court or regulatory agency or to comply with any regulations related to the undersigned’s ownership of shares of Common Stock of the Company.

Issuance and Sale by the Company. (a) In the event that (i) all the conditions to effectiveness set forth in Section 3 of the Forward Sale Agreement are not satisfied on or prior to the Closing Date or, in respect of any Additional Forward Seller elects Sale Agreement entered into pursuant to Section 2(b)(i), all the Additional Conditions are not to borrow Sharessatisfied on the Additional Closing Date, as the case may be, and the Forward Counterparty elects, pursuant to Section 2 2(c) or Section 2(d) hereof, as the case may be, not to deliver the Borrowed Firm Shares or any the Borrowed Additional Shares deliverable by the Forward Seller Counterparty, as applicable, (ii) the Forward Counterparty is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the number of the Borrowed Firm Shares or Borrowed Additional Shares, as applicable, to be sold by it to (iii) in the Underwriters on the Closing Date or the Option Closing Date, as applicable, and deliverable by such Forward Seller hereunder, or any Forward Seller determines in good faith, in its Counterparty’s commercially reasonable judgment, it is either impracticable to do so so, or that such (iv) in the Forward Seller Counterparty’s commercially reasonable judgment, it would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller) of more than a rate equal to 200 100 basis points per annum to do so, then, upon notice by such Forward Seller to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day immediately preceding the Closing Date or any Option Closing Date, as the case may be)in each case, the Company shall issue and sell to the Underwriters, pursuant to Section 2 4 hereof, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicablethe case may be, deliverable by such that the Forward Seller hereunder that such Forward Seller Counterparty does not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives Managers shall have the right to postpone the Closing Date or the Option relevant Additional Closing Date, as applicablethe case may be, for a period not exceeding one business day in order to effect any required changes in any documents or arrangements. Any The shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a9(a) in lieu of any Borrowed Firm Shares are referred to herein as the “Company Top-Up Firm Shares.,” Any and the shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a9(a) in lieu of any Borrowed Additional Shares in respect of which Additional Forward Sale Agreements have been executed are referred to herein as the “Company Top-Up Additional Shares.” (b) Neither any of the The Forward Counterparties nor any of the Forward Sellers Counterparty shall not have any liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Shares that such the Forward Seller Counterparty does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect conditions to effectiveness set forth in Section 3 of the Forward Counterparties and the Forward Sellers Sale Agreement are not satisfied on or prior to the Closing Date Date, in the case of Borrowed Firm Shares, or all of the Option Additional Conditions are not satisfied on or prior to the relevant Additional Closing Date or any additional time Date, in the case of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed), as applicableShares, and such the Forward Seller elects Counterparty elects, pursuant to Section 2 hereof 2(c) or Section 2(d) hereof, as the case may be, not to deliver and sell to the Underwriters the Borrowed Firm Shares or the Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder, or (ii) such the Forward Seller determines in good faith, in its commercially reasonable judgment, it Counterparty is unable to borrow and cause delivery deliver for sale under this Agreement on the Closing Date or the Option Closing Date, as applicable, a number of shares of Common Stock equal to the number of the Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder or (iii) such in the Forward Seller determines in good faith, in its Counterparty’s commercially reasonable judgment, it is either impracticable to do so so, or that such (iv) in the Forward Seller Counterparty’s commercially reasonable judgment, it would incur a stock loan cost of more than a rate equal to 200 100 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconductso.

Issuance and Sale by the Company. (a) In the event that (i) all the Conditions are not satisfied on or prior to the Closing Date or, in respect of any Additional Forward Sale Agreements entered into pursuant to Section 3(b), all the Additional Conditions are not satisfied on any Additional Closing Date, as the case may be, and the Forward Seller elects not to borrow Shareselects, pursuant to Section 2 3(c) or Section 3(d) hereof, as the case may be, not to deliver the Borrowed Underwritten Shares or any the Borrowed Option Shares deliverable by the Forward Seller, as applicable, (ii) in the Forward Purchaser’s commercially reasonable judgment, the Forward Seller is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the number of the Borrowed Firm Underwritten Shares or Borrowed Additional Option Shares, as applicable, to be sold borrowed and delivered for sale by it to the Underwriters on the Closing Date or the Option Closing Date, as applicable, and deliverable by such Forward Seller hereunder, under this Agreement or any (iii) in the Forward Seller determines in good faith, in its Purchaser’s commercially reasonable judgment, it is either impracticable to do so or that such the Forward Seller would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller) of more than a rate equal to 200 25 basis points per annum to do so, then, upon notice by such Forward Seller to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day immediately preceding the Closing Date or any Option Closing Date, as the case may be)in each case, the Company shall issue and sell to the Underwriters, pursuant to Section 2 3 hereof, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Underwritten Shares or Borrowed Additional Option Shares, as applicablethe case may be, deliverable by such Forward Seller hereunder that such the Forward Seller does not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives shall have the right to postpone the Closing Date or the Option relevant Additional Closing Date, as applicablethe case may be, for one a period not exceeding three business day days in order to effect any required changes in any documents or arrangements. Any The shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a11(a) in lieu of any Borrowed Firm Underwritten Shares are referred to herein as the “Company Top-Up Firm Underwritten Shares.,” Any and the shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a11(a) in lieu of any Borrowed Additional Option Shares in respect of which Additional Forward Sale Agreements have been executed are referred to herein as the “Company Top-Up Additional Option Shares”.” (b) Neither any of the Forward Counterparties Purchaser nor any of the Forward Sellers Seller shall have any liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Shares that such the Forward Seller does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect to the Forward Counterparties and the Forward Sellers are not satisfied on or prior to the Closing Date Date, in the case of Borrowed Underwritten Shares, or the Option Closing Date or any additional time all of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed)Conditions are not satisfied on or prior to the relevant Additional Closing Date, as applicablein the case of Borrowed Option Shares, and such the Forward Seller elects elects, pursuant to Section 2 hereof 3(c) or Section 3(d) hereof, as the case may be, not to deliver and sell to the Underwriters the Borrowed Firm Underwritten Shares or the Borrowed Additional Option Shares, as applicable, deliverable by such Forward Seller hereunder, or (ii) such in the Forward Seller determines in good faith, in its Purchaser’s commercially reasonable judgment, it the Forward Seller is unable to borrow and cause delivery deliver for sale under this Agreement on the Closing Date or the Option any Additional Closing Date, as applicablethe case may be, a number of shares of Common Stock equal to the number of the Borrowed Firm Underwritten Shares or Borrowed Additional Option Shares, as applicable, deliverable to be borrowed and delivered for sale by such the Forward Seller hereunder under this Agreement or (iii) such in the Forward Seller determines in good faith, in its Purchaser’s commercially reasonable judgment, it is either impracticable to do so or that such the Forward Seller would incur a stock loan cost of more than a rate equal to 200 25 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconductso.

Issuance and Sale by the Company. (a) In the event that If in respect of any Forward Sale Agreement and/or any Additional Forward Sale Agreement, as applicable, (i) all the Conditions are not satisfied on or prior to the First Closing Date or, in respect of any Additional Forward Sale Agreement to be entered into pursuant to Section 2(a)(iii) hereof, all the Option Conditions are not satisfied on or prior to the related Option Closing Date, as the case may be, and the Forward Seller elects not that is or is affiliated with the Forward Purchaser party to borrow Sharessuch Forward Sale Agreement and/or Additional Forward Sale Agreement, as applicable, elects, pursuant to Section 2 2(b) or 2(c) hereof, as the case may be, not to deliver and sell to the Underwriters its respective portion of the Borrowed Firm Shares or any the Borrowed Option Shares, as applicable, otherwise deliverable by such Forward Seller, (ii) in such Forward Purchaser’s good faith and commercially reasonable judgment it (as Forward Seller) or its affiliated Forward Seller or its affiliate is unable to borrow and deliver for sale under this Agreement a the number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Option Shares, as applicable, to be sold by it to the Underwriters on the Closing Date or the Option Closing Date, as applicable, and deliverable by such Forward Seller hereunder, hereunder or any (iii) in such Forward Purchaser’s good faith and commercially reasonable judgment it (as Forward Seller) or its affiliated Forward Seller determines in good faith, in or its commercially reasonable judgment, it is either impracticable to do so or that such Forward Seller affiliate would incur a stock loan cost Stock Loan Fee (excludingas defined under the applicable Forward Sale Agreement or relevant Additional Forward Sale Agreement, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Selleras applicable) of more than a rate equal to 200 basis points per annum to do so, then, upon notice by such Forward Seller to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day immediately preceding the Closing Date or any Option Closing Date, as the case may be)in each case, the Company shall issue and sell to the several Underwriters, pursuant to Section 2 hereof2(a)(iii) or 2(a)(iv), as the case may be, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Option Shares, as applicablethe case may be, deliverable by such Forward Seller hereunder that such Forward Seller does not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives Underwriters shall have the right to postpone the relevant Closing Date or the Option Closing Date, as applicable, for one a period not exceeding two (2) business day days in order to effect any required changes in any documents or arrangements. Any The shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a12(a) in lieu of any Borrowed Firm Shares are referred to herein as the “Company Top-Up Firm Shares.” Any and the shares of Common Stock sold by the Company to the Underwriters Underwriter pursuant to this Section 23(a12(a) in lieu of any Borrowed Additional Option Shares in respect of which Additional Forward Sale Agreements have been executed are referred to herein as the “Company Top-Up Additional Option Shares.” (b) Neither any of the No Forward Counterparties nor any of the Seller or Forward Sellers Purchaser shall have any liability whatsoever for any Borrowed Firm Shares or Borrowed underlying its Forward Sale Agreement and/or any Additional Shares Forward Sale Agreement, as applicable, that such Forward Seller does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect to the Forward Counterparties and the Forward Sellers are not satisfied on or prior to the First Closing Date Date, in the case of Borrowed Firm Shares, or all of the Option Conditions are not satisfied on or prior to the relevant Option Closing Date or any additional time Date, in the case of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed), as applicableOption Shares, and such Forward Seller elects elects, pursuant to Section 2 hereof 2(b) or 2(c) hereof, as the case may be, not to deliver and sell to the Underwriters their respective portion of the Borrowed Firm Shares or the Borrowed Additional Option Shares (or, in the case of the Borrowed Option Shares, a pro rata portion thereof if the Underwriters’ option is not exercised in full), as applicable, otherwise deliverable by such Forward Seller hereunderSeller, or (ii) in such Forward Seller determines in Purchaser’s good faith, in its commercially reasonable judgment, it (as Forward Seller) or its affiliated Forward Seller or its affiliate is unable to borrow and cause delivery deliver for sale under this Agreement on the Closing Date or the Option Closing Date, as applicable, a number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Option Shares, as applicable, deliverable by such Forward Seller hereunder or (iii) in such Forward Seller determines in Purchaser’s good faith, in its commercially reasonable judgment, it is either impracticable to do so (as Forward Seller) or that such its affiliated Forward Seller or its affiliate would incur a stock loan cost Stock Loan Fee (as defined under the applicable Forward Sale Agreement or relevant Additional Forward Sale Agreement, as applicable) of more than a rate equal to 200 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconductso.

Issuance and Sale by the Company. (a) In the event that any (i) all the Conditions are not satisfied on or prior to the Closing Date, and the Forward Seller elects not to borrow SharesSellers elect, pursuant to Section 2 hereof2(c), not to deliver the Borrowed Shares deliverable by the Forward Sellers or any (ii) the Forward Seller is unable Sellers (or their affiliates) (x) are unable, after using commercially reasonable efforts, to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the full number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, to be borrowed and sold by it to the Underwriters on hereunder as of the Closing Date or the Option such Additional Closing Date, as applicable, and deliverable by such Forward Seller hereunder, Date or any Forward Seller determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such Forward Seller (y) would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller) of more than a rate equal to 200 25 basis points per annum to do soso with respect to all or any portion of such full number of Borrowed Shares, then, upon notice by such Forward Seller to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day immediately preceding the Closing Date or any Option Closing Date, as the case may be)in each case, the Company shall issue and sell to the Underwriters, pursuant to Section 2 hereof, in whole but not in part, an aggregate number of shares of Common Stock Shares equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such that the Forward Seller hereunder that such Forward Seller does Sellers do not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives Underwriters shall have the right to postpone the Closing Date Date, or the Option Additional Closing Date, as applicablethe case may be, for a period not exceeding one business day in order to effect any required changes in any documents or arrangements. Any shares of Common Stock The Shares sold by the Company to the Underwriters pursuant to this Section 23(a9(a): (i) in lieu of any Borrowed Firm Underwritten Shares are referred to herein as the “Company Top-Up Firm Underwritten Shares.” Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(aand (ii) in lieu of any Borrowed Additional Option Shares in respect of which Additional Forward Sale Agreements have been executed are referred to herein as the “Company Top-Up Additional Option Shares.” (b) Neither any None of the Forward Counterparties nor any of Purchasers and the Forward Sellers shall have any liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Shares that such the Forward Seller does Sellers do not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect to the Forward Counterparties and the Forward Sellers are not satisfied on or prior to the Closing Date Date, or the Option Additional Closing Date or any additional time of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed)Date, as applicablethe case may be, and such the Forward Seller elects Sellers elect, pursuant to Section 2 hereof 2(c) hereof, not to deliver and sell to the Underwriters the Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder, or (ii) such the Forward Seller determines in good faithSellers (or their affiliates) (x) are unable, in its after using commercially reasonable judgmentefforts, it is unable to borrow and cause delivery deliver for sale under this Agreement on the full number of Borrowed Shares to be borrowed and sold hereunder as of the Closing Date or the Option such Additional Closing Date, as applicable, a number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder Date or (iiiy) such Forward Seller determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such Forward Seller would incur a stock loan cost of more than a rate equal to 200 25 basis points per annum to do so (excluding, for the avoidance with respect to all or any portion of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion full number of liability shall not apply in the case of fraud and/or any intentional misconductBorrowed Shares.

Issuance and Sale by the Company. (a) In the event that (i) all of the conditions to effectiveness set forth in Section 3 of the applicable Forward Agreement are not satisfied on or prior to the Closing Date or, in respect of any Additional Forward Agreement entered into pursuant to Section 1(a)(A), all the Option Conditions are not satisfied on or prior to the Option Closing Date, as the case may be, and a Forward Seller elects not to borrow Shareselects, pursuant to Section 2 1(b) or Section 1(c) hereof, as the case may be, not to deliver the Borrowed Underwritten Shares or any the Borrowed Option Shares deliverable by such Forward Seller, as applicable, or (ii) in the commercially reasonable judgment of a Forward Counterparty, its affiliated Forward Seller is unable to borrow and deliver for sale under this Agreement all of the Borrowed Underwritten Shares or Borrowed Option Shares deliverable by such Forward Seller hereunder or if, in the Forward Counterparty’s commercially reasonable judgment, its affiliated Forward Seller would incur a stock loan cost in excess of a rate equal to 200 basis points per annum to borrow all of the Borrowed Underwritten Shares and Borrowed Option Shares deliverable by such Forward Seller hereunder, the Company shall issue and sell in whole but not in part a number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, to be sold by it to the Underwriters on the Closing Date or the Option Closing Date, as applicable, and deliverable by such Forward Seller hereunder, or any Forward Seller determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such Forward Seller would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller) of more than a rate equal to 200 basis points per annum to do so, then, upon notice by such Forward Seller to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day immediately preceding the Closing Date or any Option Closing Date, as the case may be), the Company shall issue and sell to the Underwriters, pursuant to Section 2 hereof, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder that such Forward Seller does not so deliver and sell to the Underwritersdeliver. In connection with any such issuance and sale by the Company, the Company or the The Representatives shall have the right to postpone the Closing Date or the Option Closing Date, as applicablethe case may be, for a period not exceeding one (1) business day in order to effect any required changes in any documents or arrangements. Any The shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a) 7 in lieu of any the Borrowed Firm Underwritten Shares to be sold by the Forward Sellers are referred to herein as the “Company Top-Up Firm Underwritten Shares.” Any and the shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a) 7 in lieu of any the Borrowed Additional Option Shares in respect of which Additional to be sold by the Forward Sale Agreements have been executed Sellers are referred to herein as the “Company Top-Up Additional Option Shares.” (b) Neither any of the A Forward Counterparties nor any of the Forward Sellers Seller shall have any no liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Shares that such Forward Seller it does not deliver and sell to the Underwriters or any other party if such Forward Seller (i) elects, pursuant to Section 1(b) or Section 1(c) hereof, not to deliver Borrowed Shares because all of the Conditions with respect conditions to effectiveness set forth in Section 3 of the applicable Forward Counterparties and the Forward Sellers are not satisfied on or prior to the Closing Date Agreement or the Option Closing Date or any additional time of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed)Conditions, as applicable, and such Forward Seller elects pursuant to Section 2 hereof have not to deliver and sell to the Underwriters the Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder, been satisfied or (ii) such Forward Seller determines in good faithis unable to borrow and deliver for sale under this Agreement all of the Borrowed Shares it is required to deliver hereunder or if, in its the affiliated Forward Counterparty’s commercially reasonable judgment, it is unable to borrow and cause delivery for sale under this Agreement on the Closing Date or the Option Closing Date, as applicable, a number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder or (iii) such Forward Seller determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such Forward Seller would incur a stock loan cost in excess of more than a rate equal to 200 basis points per annum to do so (excludingborrow all of the Borrowed Underwritten Shares or Borrowed Option Shares, for as the avoidance of doubtcase may be, the federal funds rate component payable deliverable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconductSeller hereunder.

Issuance and Sale by the Company. (a) In the event that any the Forward Seller Counterparty elects not to borrow Shares, pursuant to Section 2 1(c) hereof, or any the Forward Seller Counterparty is unable to borrow and cause the Forward Seller to deliver for sale under this Agreement a number of shares of Common Stock equal to the number of Borrowed Firm Initial Shares or Borrowed Additional Option Shares, as applicable, to be sold purchased by it to the Underwriters on at the Closing Date Time or the Option Closing DateDate of Delivery, as applicable, and deliverable by such the Forward Seller hereunder, or any the Forward Seller Counterparty determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such the Forward Seller Counterparty would incur a stock loan cost (fee, excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to the Forward Counterparty (such Forward Seller) stock loan fee, a “Stock Loan Fee”), of more than a rate equal to 200 150 basis points per annum to do so, then, upon notice by such the Forward Seller to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day immediately preceding the Closing Date Time or any Option Closing DateDate of Delivery, as the case may be), the Company shall issue and sell to the Underwriters, pursuant to Section 2 1(a) hereof, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Initial Shares or Borrowed Additional Option Shares, as applicable, deliverable by such the Forward Seller hereunder that such the Forward Seller does not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives shall have the right to postpone the Closing Date Time or the Option Closing DateDate of Delivery, as applicable, for one business day in order to effect any required changes in any documents or arrangements. Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a19(a) in lieu of any Borrowed Firm Initial Shares are referred to herein as the “Company Top-Up Firm Initial Shares.” Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a19(a) in lieu of any Borrowed Additional Option Shares in respect of which Additional Forward Sale Agreements have been executed are referred to herein as the “Company Top-Up Additional Option Shares.” (b) Neither any of the Forward Counterparties Counterparty nor any of the Forward Sellers Seller shall have any liability whatsoever for any Borrowed Firm Initial Shares or Borrowed Additional Option Shares that such the Forward Seller does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect to the Forward Counterparties Counterparty and the Forward Sellers Seller are not satisfied on or prior to the Closing Date Time or the Option Closing Date or any additional time of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed)Delivery, as applicable, and such the Forward Seller elects pursuant to Section 2 1(c) hereof not to deliver and sell to the Underwriters the Borrowed Firm Initial Shares or Borrowed Additional Option Shares, as applicable, deliverable by such the Forward Seller hereunder, or (ii) such the Forward Seller determines in good faith, in its commercially reasonable judgment, it Counterparty is unable to borrow and cause delivery the Forward Seller to deliver for sale under this Agreement on at the Closing Date Time or the Option Closing DateDate of Delivery, as applicable, a number of shares of Common Stock equal to the number of Borrowed Firm Initial Shares or Borrowed Additional Option Shares, as applicable, deliverable by such the Forward Seller hereunder or (iii) such the Forward Seller Counterparty determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such the Forward Seller Counterparty would incur a stock loan cost Stock Loan Fee of more than a rate equal to 200 150 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconduct). If the foregoing correctly sets forth the understanding among the Company, the Underwriters, the Forward Seller and the Forward Counterparty, please so indicate in the space provided below for the purpose, whereupon this Agreement shall constitute a binding agreement among the Company, the Underwriters, the Forward Seller and the Forward Counterparty. Very truly yours, NORTHSTAR REALTY FINANCE CORP. By: /s/ Xxxxxx X. Xxxxxxxxx Name: Xxxxxx X. Xxxxxxxxx Title: Executive Vice President, General Counsel and Secretary DEUTSCHE BANK SECURITIES INC., in its capacity as the Forward Seller and agent for Deutsche Bank AG, London Branch By: /s/ Xxxxxxx Xxxxxxx Name: Xxxxxxx Xxxxxxx Title: Managing Director By: /s/ Xxxxxxxx Xxxxx Name: Xxxxxxxx Xxxxx Title: Director DEUTSCHE BANK AG, LONDON BRANCH, in its capacity as Forward Counterparty, solely as the recipient and/or beneficiary of certain representations, warranties, covenants and indemnities set forth in this Agreement By: /s/ Xxxx Xxxxxxx Name: Xxxx Xxxxxxx Title: Attorney in Fact By: /s/ Xxxx Xxxxxx Name: Xxxx Xxxxxx Title: Attorney in Fact Accepted and agreed to as of the date first above written, on behalf of themselves and the several other Underwriters named on Schedule I hereto: By: /s/ Xxxxxxx Xxxxxxx Name: Xxxxxxx Xxxxxxx Title: Managing Director By: /s/ Xxxxxxxx Xxxxx Name: Xxxxxxxx Xxxxx Title: Director UBS SECURITIES LLC By: /s/ Xxxx Xxxxx Name: Xxxx Xxxxx Title: Managing Director By: /s/ Xxxxxxx Ropa Name: Xxxxxxx Ropa Title: Executive Director Deutsche Bank Securities Inc. 4,600,000 9,200,000 UBS Securities LLC 2,400,000 4,800,000 Xxxxxx Xxxxxxx & Co. LLC 2,400,000 4,800,000 Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 2,000,000 4,000,000 Barclays Capital Inc. 2,000,000 4,000,000 Citigroup Global Markets Inc. 2,000,000 4,000,000 Credit Suisse Securities (USA) LLC 2,000,000 4,000,000 X.X. Xxxxxx Securities LLC 2,000,000 4,000,000 FBR Capital Markets & Co. 200,000 400,000 JMP Securities LLC 200,000 400,000 MLV & Co. LLC 200,000 400,000 Total 20,000,000 40,000,000 Xxxxx X. Xxxxxxxx Xxxxxx X. Xxxxxxxx Xxxxx X. Xxxx Xxxxxx X. Xxxxxxxxx Xxxxxx X. Xxxxxx Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxx Xxxxxx Xxxxx Xxxxxxx X. Xxxxxxxxxx Xxxxxxxx Bank Securities Inc. UBS Securities LLC As Representatives of the several Underwriters named in Schedule I hereto c/o Deutsche Bank Securities Inc. 00 Xxxx Xxxxxx Xxx Xxxx, XX 00000 c/o UBS Securities LLC 000 Xxxx Xxxxxx Xxx Xxxx, XX 00000 This FIRST AMENDMENT TO UNDERWRITING AGREEMENT (this “Amendment”) is made and is effective as of March 3, 2015, by and among NorthStar Realty Finance Corp., a Maryland corporation (the “Company”), Deutsche Bank Securities Inc., in its capacity as agent (in such capacity, the “Forward Seller”) for Deutsche Bank AG, London Branch (the “Forward Counterparty”), at the request of the Company in connection with the Forward Sale Agreement, and Deutsche Bank Securities Inc. and UBS Securities LLC, as representatives of the several Underwriters listed on Schedule I hereto (collectively with the Company, the Forward Counterparty and the Forward Seller, the “Parties”).

Issuance and Sale by the Company. (a) In the event that any the Forward Seller Counterparty elects not to borrow Shares, pursuant to Section 2 1(c) hereof, or any the Forward Seller Counterparty is unable to borrow and cause the Forward Seller to deliver for sale under this Agreement a number of shares of Common Stock equal to the number of Borrowed Firm Initial Shares or Borrowed Additional Option Shares, as applicable, to be sold purchased by it to the Underwriters on at the Closing Date Time or the Option Closing DateDate of Delivery, as applicable, and deliverable by such the Forward Seller hereunder, or any the Forward Seller Counterparty determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such the Forward Seller Counterparty would incur a stock loan cost (fee, excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such the Forward Seller) Counterparty of more than a rate equal to 200 150 basis points per annum to do so, then, upon notice by such the Forward Seller to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day immediately preceding the Closing Date Time or any Option Closing DateDate of Delivery, as the case may be), the Company shall issue and sell to the Underwriters, pursuant to Section 2 1(a) hereof, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Initial Shares or Borrowed Additional Option Shares, as applicable, deliverable by such the Forward Seller hereunder that such the Forward Seller does not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives shall have the right to postpone the Closing Date Time or the Option Closing DateDate of Delivery, as applicable, for one business day in order to effect any required changes in any documents or arrangements. Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a19(a) in lieu of any Borrowed Firm Initial Shares are referred to herein as the “Company Top-Up Firm Initial Shares.” Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a19(a) in lieu of any Borrowed Additional Option Shares in respect of which Additional Forward Sale Agreements have been executed are referred to herein as the “Company Top-Up Additional Option Shares.” (b) Neither any of the Forward Counterparties Counterparty nor any of the Forward Sellers Seller shall have any liability whatsoever for any Borrowed Firm Initial Shares or Borrowed Additional Option Shares that such the Forward Seller does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect to the Forward Counterparties Counterparty and the Forward Sellers Seller are not satisfied on or prior to the Closing Date Time or the Option Closing Date or any additional time of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed)Delivery, as applicable, and such the Forward Seller elects pursuant to Section 2 1(c) hereof not to deliver and sell to the Underwriters the Borrowed Firm Initial Shares or Borrowed Additional Option Shares, as applicable, deliverable by such the Forward Seller hereunder, or (ii) such the Forward Seller determines in good faith, in its commercially reasonable judgment, it Counterparty is unable to borrow and cause delivery the Forward Seller to deliver for sale under this Agreement on at the Closing Date Time or the Option Closing DateDate of Delivery, as applicable, a number of shares of Common Stock equal to the number of Borrowed Firm Initial Shares or Borrowed Additional Option Shares, as applicable, deliverable by such the Forward Seller hereunder or (iii) such the Forward Seller Counterparty determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such the Forward Seller Counterparty would incur a stock loan cost Stock Loan Fee of more than a rate equal to 200 150 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconduct). If the foregoing correctly sets forth the understanding among the Company, the Underwriters, the Forward Seller and the Forward Counterparty, please so indicate in the space provided below for the purpose, whereupon this Agreement shall constitute a binding agreement among the Company, the Underwriters, the Forward Seller and the Forward Counterparty. Very truly yours, NORTHSTAR REALTY FINANCE CORP. By: /s/ Xxxxxx X. Xxxxxxxxx Name: Xxxxxx X. Xxxxxxxxx Title: Executive Vice President, General Counsel & Secretary DEUTSCHE BANK SECURITIES INC., in its capacity as the Forward Seller and agent for Deutsche Bank AG, London Branch By: /s/ Xxxxxxx Xxxxxxxxx Name: Xxxxxxx Xxxxxxxxx Title: Managing Director By: /s/ Xxxx Xxxxxxx Name: Xxxx Xxxxxxx Title: Managing Director DEUTSCHE BANK AG, LONDON BRANCH, in its capacity as Forward Counterparty, solely as the recipient and/or beneficiary of certain representations, warranties, covenants and indemnities set forth in this Agreement By: /s/ Xxxxxxx Xxxxxxxxx Name: Xxxxxxx Xxxxxxxxx Title: Attorney in Fact By: /s/ Xxxx Xxxxxxx Name: Xxxx Xxxxxxx Title: Attorney in Fact Accepted and agreed to as of the date first above written, on behalf of themselves and the several other Underwriters named on Schedule I hereto: DEUTSCHE BANK SECURITIES INC. By: /s/ Xxxxxx Xxx Name: Xxxxxx FoxTitle: Managing Director By: /s/ Xxxx Xxxxxxx Name: Xxxx StowellTitle: Managing Director UBS SECURITIES LLC By: /s/ Xxxx Xxxxx Name: Asad KazimTitle: Managing Director By: /s/ Xxxxxxx Ropa Name: Xxxxxxx RopaTitle: Director Deutsche Bank Securities Inc. 4,500,000 4,500,000 UBS Securities LLC 2,475,000 2,475,000 Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 2,475,000 2,475,000 Barclays Capital Inc. 2,475,000 2,475,000 Citigroup Global Markets Inc. 2,475,000 2,475,000 Credit Suisse Securities (USA) LLC 2,475,000 2,475,000 X.X. Xxxxxx Securities LLC 2,475,000 2,475,000 Xxxxxx Xxxxxxx & Co. LLC 2,475,000 2,475,000 FBR Capital Markets & Co. 225,000 225,000 JMP Securities LLC 225,000 225,000 MLV & Co. LLC 225,000 225,000 Total 22,500,000 22,500,000 Ex. F-1 SCHEDULE III Xxxxx X. Xxxxxxxx

Issuance and Sale by the Company. (a) In the event that any Forward Seller elects not to borrow SharesSecurities, pursuant to Section 2 3(b) hereof, or any Forward Seller is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, to be sold and delivered by it to the Underwriters on at the Closing Date or the Option Closing Date, as applicable, and deliverable by such Forward Seller hereunder, Time or any Forward Seller determines that (A) it or its affiliate is unable through commercially reasonable efforts to borrow and deliver for sale a number of Borrowed Shares equal to the number of Borrowed Shares that it has agreed to sell and deliver in good faith, connection with establishing a commercially reasonable hedge position or (B) in its commercially reasonable judgment, judgment either it is either impracticable to do so or that such Forward Seller it or its affiliate would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller) of more than a rate equal to 200 basis points per annum to do so, then, upon notice by such Forward Seller will use its commercially reasonable efforts to notify the Company (which notice shall be delivered no later than 5:00 p.m.9:00 a.m., New York City time, on the Business Day immediately preceding at the Closing Date or any Option Closing Date, as the case may be), Time and the Company shall issue and sell to the Underwriters, pursuant to Section 2 hereof, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder that such Forward Seller does not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or and the Representatives Underwriters shall have the right to postpone the Closing Date or the Option Closing Date, as applicable, Time for one business day Business Day in order to effect any required changes in any documents or arrangements. Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a) in lieu of any Borrowed Firm Shares are referred to herein as the “Company Top-Up Firm Shares.” Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a) in lieu of any Borrowed Additional Shares in respect of which Additional Forward Sale Agreements have been executed are referred to herein as the “Company Top-Up Additional Shares.” (b) Neither any of the Forward Counterparties Purchasers nor any of the Forward Sellers shall have any liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Shares that such Forward Seller does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect to the Forward Counterparties Purchasers and the Forward Sellers are not satisfied on or prior to the Closing Date or the Option Closing Date or any additional time of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed), as applicable, Time and such Forward Seller elects pursuant to Section 2 hereof not to deliver and sell to the Underwriters the Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder, or (ii) such Forward Seller determines in good faith, in that (A) it or its affiliate is unable through commercially reasonable judgment, it is unable efforts to borrow and cause delivery deliver for sale under this Agreement on the Closing Date or the Option Closing Date, as applicable, a number of shares of Common Stock Borrowed Shares equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder that it has agreed to sell and deliver in connection with establishing a commercially reasonable hedge position or (iiiB) such Forward Seller determines in good faith, in its commercially reasonable judgment, judgment either it is either impracticable to do so or that such Forward Seller it or its affiliate would incur a stock loan cost of more than a rate equal to 200 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconductso.

Issuance and Sale by the Company. (a) In the event that any the Forward Seller elects not to borrow SharesSecurities, pursuant to Section 2 hereof, or any the Forward Seller is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the number of Borrowed Firm Shares Underwritten Securities or Borrowed Additional SharesOption Securities, as applicable, to be sold by it to the Underwriters on the Closing Date or the Option Closing relevant Settlement Date, as applicable, and deliverable by such the Forward Seller hereunder, or any the Forward Seller determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such the Forward Seller would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such the Forward Seller) of more than a rate equal to 200 300 basis points per annum to do so, then, upon notice by such the Forward Seller to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day immediately preceding the Closing Date or any Option Closing the relevant Settlement Date, as the case may be), the Company shall issue and sell to the Underwriters, pursuant to Section 2 hereof, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Shares Underwritten Securities or Borrowed Additional SharesOption Securities, as applicable, deliverable by such the Forward Seller hereunder that such the Forward Seller does not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives shall have the right to postpone the Closing Date or the Option Closing relevant Settlement Date, as applicable, for one business day in order to effect any required changes in any documents or arrangements. Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a22(a) in lieu of any Borrowed Firm Shares Underwritten Securities are referred to herein as the “Company Top-Up Firm SharesUnderwritten Securities.” Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a22(a) in lieu of any Borrowed Additional Shares in respect of which Additional Forward Sale Agreements have been executed are referred to herein as the “Company Top-Up Additional Shares.” (b) Neither any of the Forward Counterparties nor any of the Forward Sellers shall have any liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Shares that such Forward Seller does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect to the Forward Counterparties and the Forward Sellers are not satisfied on or prior to the Closing Date or the Option Closing Date or any additional time of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed), as applicable, and such Forward Seller elects pursuant to Section 2 hereof not to deliver and sell to the Underwriters the Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder, or (ii) such Forward Seller determines in good faith, in its commercially reasonable judgment, it is unable to borrow and cause delivery for sale under this Agreement on the Closing Date or the Option Closing Date, as applicable, a number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder or (iii) such Forward Seller determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such Forward Seller would incur a stock loan cost of more than a rate equal to 200 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconduct.46

Issuance and Sale by the Company. (a) In If in respect of the event that Forward Sale Agreements and/or any Additional Forward Sale Agreements, as applicable, (i) all the Conditions are not satisfied on or prior to the First Closing Date or, in respect of any Additional Forward Sale Agreement to be entered into pursuant to Section 2(a)(iii) hereof, all the applicable Option Conditions are not satisfied on or prior to the related Option Closing Date, as the case may be, and the relevant Forward Seller elects not to borrow Shareselects, pursuant to Section 2 2(b) or 2(c) hereof, as the case may be, not to deliver and sell to the Underwriters the Borrowed Firm Shares or any the Borrowed Option Shares, as applicable, otherwise deliverable by such Forward Seller, (ii) in each Forward Purchaser’s good faith and commercially reasonable judgment its affiliated Forward Seller is unable to borrow and deliver for sale under this Agreement a the number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Option Shares, as applicable, to be sold by it to the Underwriters on the Closing Date or the Option Closing Date, as applicable, and deliverable by such Forward Seller hereunder, hereunder or any (iii) in each Forward Seller determines in Purchaser’s good faith, in its faith and commercially reasonable judgment, it is either impracticable to do so or that such judgment its affiliated Forward Seller would incur a stock loan cost Stock Loan Fee (excluding, for the avoidance of doubt, the federal funds rate component payable by as defined under the relevant stock lender to such Forward SellerSale Agreement or Additional Forward Sale Agreement, as applicable) of more than a rate equal to 200 basis points per annum to do so, then, upon notice by such Forward Seller to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day immediately preceding the Closing Date or any Option Closing Date, as the case may be)in each case, the Company shall issue and sell to the several Underwriters, pursuant to Section 2 hereof2(a)(iii) or 2(a)(iv), as the case may be, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Option Shares, as applicablethe case may be, deliverable by such that the Forward Seller hereunder that such Forward Seller does Sellers do not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives Underwriters shall have the right to postpone the relevant Closing Date or the Option Closing Date, as applicable, for one business day a period not exceeding two (2) Business Days in order to effect any required changes in any documents or arrangements. Any The shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a15(a) in lieu of any Borrowed Firm Shares are referred to herein as the “Company Top-Up Firm Shares.” Any and the shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a15(a) in lieu of any Borrowed Additional Option Shares in respect of which Additional Forward Sale Agreements have been executed are referred to herein as the “Company Top-Up Additional Option Shares.” (b) Neither any of the No Forward Counterparties nor any of the Seller or Forward Sellers Purchaser shall have any liability whatsoever for any Borrowed Firm Shares or Borrowed underlying the Forward Sale Agreements and/or any Additional Shares Forward Sale Agreements, as applicable, that such Forward Seller does not deliver and sell to the Underwriters or any other party if (i) all of the applicable Conditions with respect to the Forward Counterparties and the Forward Sellers are not satisfied on or prior to the First Closing Date Date, in the case of Borrowed Firm Shares, or all of the applicable Option Conditions are not satisfied on or prior to the relevant Option Closing Date or any additional time Date, in the case of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed), as applicableOption Shares, and such Forward Seller elects elects, pursuant to Section 2 hereof 2(b) or 2(c) hereof, as the case may be, not to deliver and sell to the Underwriters the Borrowed Firm Shares or the Borrowed Additional Option Shares (or, in the case of the Borrowed Option Shares, a pro rata portion thereof if the Underwriters’ Option is not exercised in full), as applicable, otherwise deliverable by such Forward Seller hereunderSeller, or (ii) such in each Forward Seller determines in Purchaser’s good faith, in its commercially reasonable judgment, it its affiliated Forward Seller is unable to borrow and cause delivery deliver for sale under this Agreement on the Closing Date or the Option Closing Date, as applicable, a number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Option Shares, as applicable, deliverable by such Forward Seller hereunder or (iii) such in each Forward Seller determines in Purchaser’s good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such its affiliated Forward Seller would incur a stock loan cost Stock Loan Fee (as defined under the relevant Forward Sale Agreement or Additional Forward Sale Agreement, as applicable) of more than a rate equal to 200 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconductso.

Issuance and Sale by the Company. (a) In the event that any Forward Seller Purchaser elects not to borrow Shares, pursuant to Section 2 1 hereof, or any Forward Seller Purchaser is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, to be sold by it to the Underwriters on the Closing Date or the Option Closing DateTime, as applicable, and deliverable by such Forward Seller Purchaser hereunder, or any Forward Seller Purchaser determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such Forward Seller Purchaser would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward SellerPurchaser) of more than a rate equal to 200 basis points per annum to do so, then, upon notice by such Forward Seller Purchaser to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day business day immediately preceding the Closing Date or any Option Closing DateTime, as the case may be), the Company shall issue and sell to the Underwriters, pursuant to Section 2 1 hereof, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller Purchaser hereunder that such Forward Seller Purchaser does not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives shall have the right to postpone the Closing Date or the Option Closing DateTime, as applicable, for one business day in order to effect any required changes in any documents or arrangements. Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a17(a) in lieu of any Borrowed Firm Shares are referred to herein as the “Company Top-Up Firm Shares.” Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a17(a) in lieu of any Borrowed Additional Shares in respect of which Additional Forward Sale Agreements have been executed are referred to herein as the “Company Top-Up Additional Shares.” (b) Neither any of the The Forward Counterparties nor any of the Forward Sellers Purchasers shall not have any liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Shares that such Forward Seller Purchaser does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect to the Forward Counterparties and the Forward Sellers Purchasers are not satisfied on or prior to the Closing Date or the Option Closing Date Time or any additional time of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed), as applicable, and such Forward Seller Purchaser elects pursuant to Section 2 1 hereof not to deliver and sell to the Underwriters the Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller Purchaser hereunder, or (ii) such Forward Seller Purchaser determines in good faith, in its commercially reasonable judgment, it is unable to borrow and cause delivery for sale under this Agreement on the Closing Date or the Option Closing DateTime, as applicable, a number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller Purchaser hereunder or (iii) such Forward Seller Purchaser determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such Forward Seller Purchaser would incur a stock loan cost of more than a rate equal to 200 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward SellerPurchaser), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconduct.

Issuance and Sale by the Company. (a) In the event that any (i) all the Conditions are not satisfied on or prior to the Closing Date, and the Forward Seller elects not to borrow Shareselects, pursuant to Section 2 hereof3(c), or any not to deliver the Borrowed Shares deliverable by the Forward Seller, (ii) in the Forward Purchaser’s commercially reasonable judgment, the Forward Seller is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the number of the Borrowed Firm Shares or Borrowed Additional Shares, as applicable, to be sold borrowed and delivered for sale by it to the Underwriters on the Closing Date or the Option Closing Date, as applicable, and deliverable by such Forward Seller hereunder, under this Agreement or any (iii) in the Forward Seller determines in good faith, in its Purchaser’s commercially reasonable judgment, it is either impracticable to do so or that such the Forward Seller would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller) of more than a rate equal to 200 25 basis points per annum to do so, then, upon notice by such Forward Seller to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day immediately preceding the Closing Date or any Option Closing Date, as the case may be)in each case, the Company shall issue and sell to the Underwriters, pursuant to Section 2 3 hereof, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder that such the Forward Seller does not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives shall have the right to postpone the Closing Date or the Option Closing Date, as applicable, for one a period not exceeding three business day days in order to effect any required changes in any documents or arrangements. Any The shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a11(a) in lieu of any Borrowed Firm Shares are referred to herein as the “Company Top-Up Firm Underwritten Shares”.” Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a) in lieu of any Borrowed Additional Shares in respect of which Additional Forward Sale Agreements have been executed are referred to herein as the “Company Top-Up Additional Shares.” (b) Neither any of the Forward Counterparties Purchaser nor any of the Forward Sellers Seller shall have any liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Shares that such the Forward Seller does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect to the Forward Counterparties and the Forward Sellers are not satisfied on or prior to the Closing Date or and the Option Closing Date or any additional time of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed), as applicable, and such Forward Seller elects elects, pursuant to Section 2 hereof 3(c), not to deliver and sell to the Underwriters the Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder, or (ii) such in the Forward Seller determines in good faith, in its Purchaser’s commercially reasonable judgment, it the Forward Seller is unable to borrow and cause delivery deliver for sale under this Agreement on the Closing Date or the Option Closing Date, as applicable, a number of shares of Common Stock equal to the number of the Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable to be borrowed and delivered for sale by such the Forward Seller hereunder under this Agreement or (iii) such in the Forward Seller determines in good faith, in its Purchaser’s commercially reasonable judgment, it is either impracticable to do so or that such the Forward Seller would incur a stock loan cost of more than a rate equal to 200 25 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconductso.

Issuance and Sale by the Company. (a) In the event that any (i) a Forward Seller elects not to borrow Shares, Shares pursuant to the first sentence of Section 2 3(c) hereof, or any (ii) a Forward Seller Purchaser determines in good faith, after using commercially reasonable efforts, that (A) it or its affiliate, as Forward Seller, is unable to borrow and deliver deliver, on the Closing Date or any Subsequent Closing Date, as the case may be, for sale under this Agreement a number of shares of Common Stock equal to the number of Borrowed Firm Forward Shares or Borrowed Additional Shares, as applicable, to be sold by it to the Underwriters otherwise deliverable on the Closing Date or the Option Closing Date, as applicable, and deliverable such date by such Forward Seller hereunder, hereunder or any Forward Seller determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that (B) such Forward Seller would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller) of more than a rate equal to 200 basis points per annum to do so, then, in each case, upon notice by such Forward Seller to the Company and the Operating Partnership (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day business day immediately preceding the Closing Date or any Option such Subsequent Closing Date, as the case may be), the Company shall issue and sell to the Underwriters, pursuant to Section 2 3 hereof, in whole but not in parton the Closing Date or such Subsequent Closing Date, as the case may be, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Forward Shares or Borrowed Additional Shares, as applicable, otherwise deliverable on such date by such the applicable Forward Seller hereunder that such Forward Seller does is not required to so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives shall have the right to postpone the Closing Date or the Option any Subsequent Closing Date, as applicablethe case may be, for one business day in order to effect any required changes in any documents or arrangements. Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a13(a) in lieu of any Borrowed Firm Forward Underwritten Shares are referred to herein as the “Company Top-Up Firm Underwritten Shares.,” Any and (ii) any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a13(a) in lieu of any Borrowed Additional Forward Optional Shares in respect of which Additional Forward Sale Agreements have been executed are referred to herein as the “Company Top-Up Additional Optional Shares.” (b) Neither any of the A Forward Counterparties nor any of the Forward Sellers Seller shall not have any liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Forward Shares that such the Forward Seller does not deliver and sell to the Underwriters or any other party if (i) all of the relevant Conditions with respect to the Forward Counterparties and the Forward Sellers are not satisfied on or prior to the Closing Date or the Option any Subsequent Closing Date or any additional time of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed)Date, as applicablethe case may be, and such Forward Seller validly elects pursuant to the first sentence of Section 2 3(c) hereof not to deliver and sell to the Underwriters the Borrowed Firm Forward Shares or Borrowed Additional Shares, as applicable, otherwise deliverable on such date by such Forward Seller hereunder, or (ii) such the relevant Forward Seller Purchaser determines in good faith, in its after using commercially reasonable judgmentefforts, that (A) it or its affiliate, as Forward Seller, is unable to borrow and cause delivery deliver, on the Closing Date or any Subsequent Closing Date, as the case may be, for sale under this Agreement on the Closing Date or the Option Closing Date, as applicable, a number of shares of Common Stock equal to the number of Borrowed Firm Forward Shares or Borrowed Additional Shares, as applicable, otherwise deliverable on such date by such Forward Seller hereunder or (iiiB) such Forward Seller determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such Forward Seller would incur a stock loan cost of more than a rate equal to 200 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconduct).

Issuance and Sale by the Company. (a) In the event that any (i) all the Conditions are not satisfied on or prior to the Closing Date, and the Forward Seller elects not to borrow SharesSellers elects, pursuant to Section 2 hereof4(c), not to deliver the Borrowed Shares deliverable by the Forward Sellers or any (ii) the Forward Seller is unable Sellers (or their affiliates) (x) are unable, after using commercially reasonable efforts, to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the full number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, to be borrowed and sold by it to the Underwriters on hereunder as of the Closing Date or the such Option Closing Date, as applicable, and deliverable by such Forward Seller hereunder, Date or any Forward Seller determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such Forward Seller (y) would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller) of more than a rate equal to 200 50 basis points per annum to do soso with respect to all or any portion of such full number of Borrowed Shares, then, upon notice by such Forward Seller to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day immediately preceding the Closing Date or any Option Closing Date, as the case may be)in each case, the Company shall issue and sell to the Underwriters, pursuant to Section 2 4 hereof, in whole but not in part, an aggregate number of shares of Common Stock Shares equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such that the Forward Seller hereunder that such Forward Seller does Sellers do not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives shall have the right to postpone the Closing Date Date, or the Option Closing Date, as applicablethe case may be, for a period not exceeding one business day in order to effect any required changes in any documents or arrangements. Any shares of Common Stock The Shares sold by the Company to the Underwriters pursuant to this Section 23(a10(a): (i) in lieu of any Borrowed Firm Underwritten Shares are referred to herein as the “Company Top-Up Firm Underwritten Shares.” Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(aand (ii) in lieu of any Borrowed Additional Option Shares in respect of which Additional Forward Sale Agreements have been executed are referred to herein as the “Company Top-Up Additional Option Shares.” (b) Neither any of the Forward Counterparties Purchasers nor any of the Forward Sellers shall have any liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Shares that such the Forward Seller Sellers does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect to the Forward Counterparties and the Forward Sellers are not satisfied on or prior to the Closing Date Date, or the Option Closing Date or any additional time of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed)Date, as applicablethe case may be, and such the Forward Seller elects Sellers elects, pursuant to Section 2 hereof 4(c), not to deliver and sell to the Underwriters the Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder, or (ii) such the Forward Seller determines in good faithSellers (or their affiliates) (x) are unable, in its after using commercially reasonable judgmentefforts, it is unable to borrow and cause delivery deliver for sale under this Agreement on the full number of Borrowed Shares to be borrowed and sold hereunder as of the Closing Date or the such Option Closing Date, as applicable, a number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder Date or (iiiy) such Forward Seller determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such Forward Seller would incur a stock loan cost of more than a rate equal to 200 50 basis points per annum to do so (excluding, for the avoidance with respect to all or any portion of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion full number of liability shall not apply in the case of fraud and/or any intentional misconductBorrower Shares.

Issuance and Sale by the Company. (a) In If (i) any of the event that representations and warranties of the Company contained herein or any certificate delivered by the Company pursuant hereto are not true and correct as of the Closing Time or a Date of Delivery, as if made as of the Closing Time or such Date of Delivery, as the case may be, (ii) the Company has not performed all of the obligations required to be performed by it under this Agreement or the applicable Forward Seller elects Sale Agreement on or prior to the Closing Time or such Date of Delivery, (iii) any of the conditions set forth in Section 5 hereof have not been satisfied on or prior to borrow Sharesthe Closing Time or such Date of Delivery, (iv) this Agreement shall have been terminated pursuant to Section 2 hereof9 hereof on or prior to the Closing Time or such Date of Delivery, or the Closing Time or such Date of Delivery shall not have occurred, (v) any of the conditions in the applicable Forward Sale Agreement shall not have been satisfied on or prior to the Closing Time or such Date of Delivery, (vi) any of the representations and warranties of the Company contained in the applicable Forward Sale Agreement are not true and correct as of the Closing Time or such Date of Delivery as if made as of the Closing Time or such Date of Delivery, or (vii) the Forward Seller determines that (A) it or its affiliate is unable through commercially reasonable efforts to borrow and deliver for sale under this Agreement a number of shares of Common Stock Borrowed Securities equal to the number of Borrowed Firm Shares Securities that it has agreed to sell and deliver in connection with establishing its hedge position or Borrowed Additional Shares, as applicable, to be sold by it to the Underwriters on the Closing Date or the Option Closing Date, as applicable, and deliverable by such Forward Seller hereunder, or any Forward Seller determines in good faith, (B) in its commercially reasonable judgmentjudgement, either it is either impracticable to do so or that such Forward Seller it or its affiliate would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller) of more than a rate equal to 200 basis points per annum to do soso (clauses (i) through (vii), thentogether, upon notice by such the “Conditions”), then (I) in the case of the Conditions set forth in clauses (i) through (vi), the Forward Seller may elect not to deliver for sale to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day immediately preceding Underwriters at the Closing Time or such Date of Delivery the Borrowed Initial Securities or any the Borrowed Option Securities, as applicable and (II) in the event of the Conditions set forth in clause (vii), the Forward Seller shall only be required to deliver for sale to the Underwriters at the Closing DateTime or such Date of Delivery, as the case may be, the aggregate number of shares of Common Stock that the Forward Seller or its affiliates is able to so borrow in connection with establishing its commercially reasonable hedge position at or below such cost. In addition, the Forward Seller and the Forward Purchaser shall have no liability whatsoever for any Borrowed Securities that the Forward Seller does not sell and deliver for sale to the Underwriters pursuant to this Section 11(a). (b) In the event that the Forward Seller, pursuant to Section 11(a), does not deliver for sale the Borrowed Securities, then the Company shall issue and sell to the UnderwritersUnderwriters at the purchase price per share set forth in Schedule A hereto (in the case of any Company Top-Up Option Securities, pursuant less an amount per share equal to Section 2 hereofany dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities), in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder Securities that such the Forward Seller does not so deliver and sell for sale to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives shall have the right to postpone the Closing Time or such Date or the Option Closing Dateof Delivery, as applicablethe case may be, for a period not exceeding one business day in order to effect any required changes in any documents or arrangements. Any shares of Common Stock The Securities sold by the Company to the Underwriters pursuant to this Section 23(a11: (i) in lieu of any Borrowed Firm Shares Initial Securities are referred to herein as the “Company Top-Up Firm Shares.Initial Securities” Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(aand (ii) in lieu of any Borrowed Additional Shares in respect of which Additional Forward Sale Agreements have been executed Option Securities are referred to herein as the “Company Top-Up Additional SharesOption Securities.” (b) Neither any of ” If the Forward Counterparties nor any of the Forward Sellers shall have any liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Shares that such Forward Seller does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect to the Forward Counterparties and the Forward Sellers are not satisfied on or prior to the Closing Date or the Option Closing Date or any additional time of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed), as applicable, and such Forward Seller elects pursuant to Section 2 hereof 11(a) not to to, or is otherwise not required to, borrow and deliver and sell for sale to the Underwriters at the relevant Closing Time or Date of Delivery the total number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, Securities otherwise deliverable by such it hereunder, the Forward Seller hereunder, or (ii) such Forward Seller determines in good faith, in will use its commercially reasonable judgmentefforts to notify the Company no later than 9:00 a.m., it is unable to borrow and cause delivery for sale under this Agreement New York City time, on the Closing Time or such Date or of Delivery of the Option Closing Date, as applicable, a number of shares of Common Stock equal to the total number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable Securities to be delivered for sale to the Underwriters by such Forward Seller hereunder or (iii) such Forward Seller determines in good faithit hereunder. Notwithstanding anything to the contrary herein, in its commercially reasonable judgment, it is either impracticable no event will the Company be required to do so issue or that such Forward Seller would incur a stock loan cost deliver any Company Securities prior to the business day following notice to the Company of more than a rate equal to 200 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion number of liability shall not apply Securities so deliverable in the case of fraud and/or any intentional misconductaccordance with this Section 11.

Issuance and Sale by the Company. (a) In the event that any (i) all the Conditions are not satisfied on or prior to the Initial Closing Date or, in respect of the Additional Forward Sale Agreements, if any, entered into pursuant to Section 2(c) hereof, all the Additional Conditions are not satisfied on the Option Closing Date, if any, as the case may be, and a Forward Seller elects not to borrow Shareselects, pursuant to Section 2 2(e) or Section 2(f) hereof, as the case may be, not to deliver Borrowed Underwritten Shares or any Borrowed Option Shares otherwise deliverable by such Forward Seller, as applicable, (ii) in a Forward Purchaser’s commercially reasonable judgment, it (as Forward Seller) or its affiliated Forward Seller is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the number of Borrowed Firm Underwritten Shares or Borrowed Additional Option Shares, as applicable, to be sold by it to the Underwriters on the Closing Date or the Option Closing Date, as applicable, otherwise borrowed and deliverable delivered for sale by such Forward Seller hereunder, under this Agreement or any (iii) in a Forward Seller determines in good faith, in its Purchaser’s commercially reasonable judgment, it is either impracticable to do so (as Forward Seller) or that such its affiliated Forward Seller would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller) of more than a rate equal to 200 50 basis points per annum to do so, then, upon notice by such Forward Seller to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day immediately preceding the Closing Date or any Option Closing Date, as the case may be)in each case, the Company shall issue and sell to the Underwriters, pursuant to Section 2 hereof, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Underwritten Shares or Borrowed Additional Option Shares, as applicablethe case may be, deliverable by such Forward Seller hereunder that such Forward Seller does not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives shall have the right to postpone the Initial Closing Date or the Option Closing Date, as applicablethe case may be, for one a period not exceeding two business day days in order to effect any required changes in any documents or arrangements. Any The shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a9(a) in lieu of any Borrowed Firm Underwritten Shares are referred to herein as the “Company Top-Up Firm Underwritten Shares.,” Any and the shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a9(a) in lieu of any Borrowed Additional Option Shares in respect of which Additional Forward Sale Agreements have been executed are referred to herein as the “Company Top-Up Additional Option Shares.” (b) Neither any of the Forward Counterparties nor any Purchasers and neither of the Forward Sellers shall have any liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Shares that such a Forward Seller does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect to the Forward Counterparties and the Forward Sellers are not satisfied on or prior to the Initial Closing Date Date, in the case of Borrowed Underwritten Shares, or all of the Additional Conditions are not satisfied on or prior to the Option Closing Date or any additional time Date, in the case of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed), as applicableOption Shares, and such Forward Seller elects elects, pursuant to Section 2 hereof 2(e) or Section 2(f) hereof, as the case may be, not to deliver and sell to the Underwriters the Borrowed Firm Underwritten Shares or the Borrowed Additional SharesOption Shares otherwise deliverable by such Forward Seller, as applicable, deliverable by such Forward Seller hereunder, or (ii) such in a Forward Seller determines in good faith, in its Purchaser’s commercially reasonable judgment, it (as Forward Seller) or its affiliated Forward Seller is unable to borrow and cause delivery deliver for sale under this Agreement on the Initial Closing Date or the Option Closing Date, as applicablethe case may be, a number of shares of Common Stock equal to the number of Borrowed Firm Underwritten Shares or Borrowed Additional SharesOption Shares otherwise deliverable by such Forward Seller, as applicable, deliverable to be borrowed and delivered for sale by such Forward Seller hereunder under this Agreement or (iii) such in a Forward Seller determines in good faith, in its Purchaser’s commercially reasonable judgment, it is either impracticable to do so (as Forward Seller) or that such its affiliated Forward Seller would incur a stock loan cost of more than a rate equal to 200 50 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconductso.

Issuance and Sale by the Company. (a) In the event that any Forward Seller elects not to, or is otherwise not required to, borrow and deliver any Borrowed Shares for sale to borrow Shares, the Underwriters pursuant to Section 2 hereof, 3 hereof at the Closing Time or any Forward Seller is unable to borrow and deliver for sale under this Agreement a number the Time of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional SharesDelivery, as applicable, to be sold by it to the Underwriters on the Closing Date or the Option Closing Date, as applicable, and deliverable by then such Forward Seller hereunder, or any Forward Seller determines in good faith, in will use its commercially reasonable judgment, it is either impracticable efforts to do so or that such Forward Seller would incur a stock loan cost (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller) of more than a rate equal to 200 basis points per annum to do so, then, upon notice by such Forward Seller to notify the Company (which notice shall be delivered no later than 5:00 p.m.9:00 a.m., New York City time, on the Business Day immediately preceding at the Closing Date Time or any Option Closing Datesuch Time of Delivery, as the case may be), and the Company shall issue and sell to the Underwriters, pursuant to Section 2 hereof, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder that such Forward Seller does not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company or the Representatives shall have the right to postpone the Closing Date or the Option Closing Date, as applicable, for one business day in order to effect any required changes in any documents or arrangements. Any The shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a11(a): (i) in lieu of any Borrowed Firm Shares are herein referred to herein collectively as the “Company Top-Up Firm Shares.” Any shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(aand (ii) in lieu of any Borrowed Additional Shares in respect of which Additional Forward Sale Agreements have been executed are herein referred to herein collectively as the “Company Top-Up Additional Shares.”” In connection with any such issuance and sale by the Company, the Company and the Underwriters shall have the right to postpone the Closing Time or the Time of Delivery, as applicable, for one Business Day in order to effect any required changes in any documents or arrangements. (b) Neither any of the Forward Counterparties Purchasers nor any of the Forward Sellers shall have any liability whatsoever for any Borrowed Firm Shares or Borrowed Additional Shares that such Forward Seller does not deliver and sell to the Underwriters or any other party if (i) all of the Conditions with respect to the Forward Counterparties and the Forward Sellers are not satisfied on or prior to the Closing Date or the Option Closing Date or any additional time of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed), as applicable, and such Forward Seller elects not to, or is otherwise not required to, borrow and deliver for sale to the Underwriters pursuant to Section 2 hereof not to deliver and sell to the Underwriters the Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder, or (ii) such Forward Seller determines in good faith, in its commercially reasonable judgment, it is unable to borrow and cause delivery for sale under this Agreement on the Closing Date or the Option Closing Date, as applicable, a number of shares of Common Stock equal to the number of Borrowed Firm Shares or Borrowed Additional Shares, as applicable, deliverable by such Forward Seller hereunder or (iii) such Forward Seller determines in good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such Forward Seller would incur a stock loan cost of more than a rate equal to 200 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconduct3 hereof.

Issuance and Sale by the Company. (a) In If in respect of the event that Forward Sale Agreement and/or any Additional Forward Sale Agreements, as applicable, (i) all the Conditions are not satisfied on or prior to the First Closing Date or, in respect of any Additional Forward Sale Agreement to be entered into pursuant to Section 2(a)(iii) hereof, all the applicable Option Conditions are not satisfied on or prior to the related Option Closing Date, as the case may be, and the relevant Forward Seller elects not to borrow Shareselects, pursuant to Section 2 2(b) or 2(c) hereof, as the case may be, not to deliver and sell to the Underwriters the Borrowed Firm Securities or any the Borrowed Option Securities, as applicable, otherwise deliverable by such Forward Seller Seller, (ii) in the Forward Seller’s good faith and commercially reasonable judgment its affiliated Forward Purchaser is unable to borrow and deliver for sale under this Agreement a the number of shares of Common Stock equal to the number of Borrowed Firm Shares Securities or Borrowed Additional SharesOption Securities, as applicable, to be sold by it to the Underwriters on the Closing Date or the Option Closing Date, as applicable, and deliverable by such Forward Seller hereunder, hereunder or any (iii) in the Forward Seller determines in Seller’s good faith, in its faith and commercially reasonable judgment, it is either impracticable to do so or that such judgment its affiliated Forward Seller Purchaser would incur a stock loan cost Stock Loan Fee (excluding, for the avoidance of doubt, the federal funds rate component payable by as defined under the relevant stock lender to such Forward SellerSale Agreement or Additional Forward Sale Agreement, as applicable) of more than a rate equal to 200 basis points per annum to do so, then, upon notice by such Forward Seller to the Company (which notice shall be delivered no later than 5:00 p.m., New York City time, on the Business Day immediately preceding the Closing Date or any Option Closing Date, as the case may be)in each case, the Company shall issue and sell to the several Underwriters, pursuant to Section 2 hereof2(a)(iii) or 2(a)(iv), as the case may be, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Firm Shares Securities or Borrowed Additional SharesOption Securities, as applicablethe case may be, deliverable by such Forward Seller hereunder that such the Forward Seller does not so deliver and sell to the Underwriters. In connection with any such issuance and sale by the Company, the Company Company, the Forward Purchaser, the Forward Seller or the Representatives Underwriters, as the case may be, shall have the right to postpone the relevant Closing Date or the Option Closing Date, as applicable, for one business day a period not exceeding two (2) Business Days in order to effect any required changes in any documents or arrangements. Any The shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a18(a) in lieu of any Borrowed Firm Shares Securities are referred to herein as the “Company Top-Up Firm Shares.Securities” Any and the shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 23(a18(a) in lieu of any Borrowed Additional Shares in respect of which Additional Forward Sale Agreements have been executed Option Securities are referred to herein as the “Company Top-Up Additional SharesOption Securities.” (b) Neither any of the No Forward Counterparties nor any of the Seller or Forward Sellers Purchaser shall have any liability whatsoever for any Borrowed Firm Shares or Borrowed Securities underlying the Forward Sale Agreement and/or any Additional Shares Forward Sale Agreements, as applicable, that such Forward Seller does not deliver and sell to the Underwriters or any other party if (i) all of the applicable Conditions with respect to the Forward Counterparties and the Forward Sellers are not satisfied on or prior to the First Closing Date Date, in the case of Borrowed Firm Securities, or all of the applicable Option Conditions are not satisfied on or prior to the relevant Option Closing Date or any additional time Date, in the case of purchase (in respect of any Borrowed Additional Shares in respect of which the Additional Forward Sale Agreements have been executed), as applicableOption Securities, and such Forward Seller elects elects, pursuant to Section 2 hereof 2(b) or 2(c) hereof, as the case may be, not to deliver and sell to the Underwriters the Borrowed Firm Shares Securities or the Borrowed Additional SharesOption Securities (or, in the case of the Borrowed Option Securities, a pro rata portion thereof if the Underwriters’ Option is not exercised in full), as applicable, otherwise deliverable by such Forward Seller hereunderSeller, or (ii) such in the Forward Seller determines in Seller’s good faith, in its commercially reasonable judgment, it its affiliated Forward Purchaser is unable to borrow and cause delivery deliver for sale under this Agreement on the Closing Date or the Option Closing Date, as applicable, a number of shares of Common Stock equal to the number of Borrowed Firm Shares Securities or Borrowed Additional SharesOption Securities, as applicable, deliverable by such Forward Seller hereunder or (iii) such in the Forward Seller determines in Seller’s good faith, in its commercially reasonable judgment, it is either impracticable to do so or that such its affiliated Forward Seller Purchaser would incur a stock loan cost Stock Loan Fee (as defined under the relevant Forward Sale Agreement or Additional Forward Sale Agreement, as applicable) of more than a rate equal to 200 basis points per annum to do so (excluding, for the avoidance of doubt, the federal funds rate component payable by the relevant stock lender to such Forward Seller), it being understood that the foregoing exclusion of liability shall not apply in the case of fraud and/or any intentional misconductso.