Exhibit 1.1
AGREE REALTY CORPORATION
Shares of Common Stock
(Par Value $0.0001 Per Share)
EQUITY DISTRIBUTION AGREEMENT
Dated: September 2, 2022
TABLE
OF CONTENTS
|
|
Page |
SECTION 1 |
DESCRIPTION OF SECURITIES |
1 |
SECTION 2 |
PLACEMENTS |
4 |
SECTION 3 |
SALE OF SECURITIES |
6 |
SECTION 4 |
SUSPENSION OF SALES |
6 |
SECTION 5 |
REPRESENTATIONS AND WARRANTIES |
7 |
SECTION 6 |
SALE AND DELIVERY; SETTLEMENT |
24 |
SECTION 7 |
COVENANTS OF THE COMPANY AND THE OPERATING PARTNERSHIP |
27 |
SECTION 8 |
PAYMENT OF EXPENSES |
34 |
SECTION 9 |
CONDITIONS OF THE OBLIGATIONS OF THE MANAGER |
34 |
SECTION 10 |
INDEMNIFICATION |
37 |
SECTION 11 |
CONTRIBUTION |
39 |
SECTION 12 |
REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY |
40 |
SECTION 13 |
TERMINATION OF AGREEMENT |
40 |
SECTION 14 |
NOTICES |
42 |
SECTION 15 |
PARTIES |
42 |
SECTION 16 |
ADJUSTMENTS FOR SHARE SPLITS |
42 |
SECTION 17 |
GOVERNING LAW AND TIME |
42 |
SECTION 18 |
EFFECT OF HEADINGS |
42 |
SECTION 19 |
RESEARCH ANALYST INDEPENDENCE |
43 |
SECTION 20 |
PERMITTED FREE WRITING PROSPECTUSES |
43 |
SECTION 21 |
ABSENCE OF FIDUCIARY RELATIONSHIP |
43 |
SECTION 22 |
CONSENT TO JURISDICTION |
44 |
SECTION 23 |
PARTIAL UNENFORCEABILITY |
44 |
SECTION 24 |
WAIVER OF JURY TRIAL |
45 |
SECTION 25 |
COUNTERPARTS |
45 |
SECTION 26 |
AMENDMENTS AND WAIVERS |
45 |
SECTION 27 |
RECOGNITION OF THE U.S. SPECIAL RESOLUTION REGIMES |
45 |
EXHIBITS
Exhibit A |
– |
Form of Placement Notice |
Exhibit B |
– |
Authorized Individuals for Placement Notices and Acceptances |
Exhibit C |
– |
Compensation |
Exhibit D |
– |
Officers’ Certificate |
Exhibit E |
– |
Form of Corporate Opinion of Xxxxxxxx LLP |
Exhibit F |
– |
Form of Tax Opinion of Xxxxxxxx LLP |
Exhibit G |
– |
Form of Opinion of Xxxxxxx Xxxxx LLP |
Exhibit H |
– |
Permitted Free Writing Prospectus |
SCHEDULES
Schedule I |
– |
List of Subsidiaries and Joint Ventures |
Schedule II |
– |
Material Agreements |
Agree Realty Corporation
(a Maryland corporation)
Shares of Common Stock
(Par Value $.0001 Per Share)
EQUITY
DISTRIBUTION AGREEMENT
September 2, 2022
[ ]
[ ]
[ ]
Ladies and Gentlemen:
Agree Realty Corporation,
a Maryland corporation (the “Company”), and Agree Limited Partnership, a Delaware limited partnership (the “Operating
Partnership”), of which the Company is the sole general partner, each confirms its agreement (this “Agreement”)
with [ ] (the “Manager”), as follows:
SECTION 1 DESCRIPTION
OF SECURITIES.
Each of the Company and the
Operating Partnership agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set
forth herein, the Company may issue and sell through the Manager, acting as agent and/or principal shares (the “Securities”)
of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), having an aggregate offering
price of up to $750,000,000 (the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the
parties hereto agree that compliance with the limitations set forth in this Section 1 regarding the aggregate offering price of the
Securities issued and sold under this Agreement shall be the sole responsibility of the Company, and the Manager shall have no obligation
in connection with such compliance. The issuance and sale of the Securities through the Manager will be effected pursuant to the Registration
Statement (as defined below) that was filed by the Company under the Securities Act of 1933, as amended (collectively with the rules and
regulations of the Securities and Exchange Commission (the “Commission”) thereunder, the “Securities Act”).
The Company has filed, in
accordance with the provisions of the Securities Act, with the Commission a shelf registration statement on Form S-3 (File No. 333-238729)
on May 27, 2020, including a base prospectus, relating to certain securities, including the Securities to be issued from time to
time by the Company, which shelf registration statement, including any amendments thereto, was declared effective by the Commission under
the Securities Act and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions
of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the
“Exchange Act”). The Company has prepared a prospectus supplement specifically relating to the Securities (the “Prospectus
Supplement”) to the base prospectus included as part of such registration statement. The Company will furnish to the Manager,
for use by the Manager copies, of the base prospectus included as part of such registration statement, as supplemented by the Prospectus
Supplement, relating to the Securities. Except where the context otherwise requires, such registration statement, on each date and time
that such registration statement and any post-effective amendment thereto became or becomes effective, including all documents filed as
part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently
filed with the Commission pursuant to Rule 424(b) of the Securities Act or deemed to be a part of such registration statement
pursuant to Rule 430B of the Securities Act (the “Rule 430B Information”), is herein called the “Registration
Statement.” The base prospectus included in the Registration Statement, including all documents incorporated therein by reference,
as it may be supplemented by the Prospectus Supplement, in the form in which such prospectus and/or Prospectus Supplement have most recently
been filed by the Company with the Commission pursuant to Rule 424(b) of the Securities Act, is herein called the “Prospectus.”
The Company may file one or more additional registration statements (which shall be the Registration Statement) from time to time that
will contain a base prospectus and related prospectus or prospectus supplement, if applicable (which shall be the Prospectus Supplement),
with respect to the Securities. Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto
shall be deemed to refer to and include the documents incorporated by reference therein, and any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to the Registration Statement or the Prospectus shall be deemed to refer
to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein.
For purposes of this Agreement,
all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include any
copy filed with the Commission pursuant to the Commission’s Electronic Data Gathering, Analysis and Retrieval system (“XXXXX”);
all references in this Agreement to any Issuer Free Writing Prospectus (other than any Issuer Free Writing Prospectuses that, pursuant
to Rule 433 under the Securities Act, are not required to be filed with the Commission) shall be deemed to include the copy thereof
filed with the Commission pursuant to XXXXX; and all references in this Agreement to “supplements” to the Prospectus shall
include, without limitation, any supplements, “wrappers” or similar materials prepared in connection with any offering, sale
or private placement of any Placement Securities by the Manager outside of the United States. All references in this Agreement to financial
statements and schedules and other information that is “contained,” “included” or “stated” in the
Registration Statement or the Prospectus (and all other references of like import) shall be deemed to mean and include all such financial
statements and schedules and other information that is incorporated by reference in the Registration Statement or the Prospectus, as the
case may be.
As used in this Agreement,
the following terms have the respective meanings set forth below:
“Manager”
has the meaning set forth in the introductory paragraph of this Agreement.
“Applicable Time”
means the time of each sale of any Securities pursuant to this Agreement.
“Commitment Period”
means the period commencing on the date of this Agreement and expiring on the date this Agreement is terminated pursuant to Section 13.
“Investment Company
Act” means the Investment Company Act of 1940, as amended.
“Issuance”
means each occasion the Company elects to exercise its right to deliver a Placement Notice that specifies that it relates to an “Issuance”
and requires the Manager to use commercially reasonable efforts to sell the Securities as specified in such Placement Notice, subject
to the terms and conditions of this Agreement.
“Issuer Free Writing
Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 under the Securities Act, relating
to the Securities that (i) is required to be filed with the Commission by the Company, (ii) is a “road show” that
is a “written communication” within the meaning of Rule 433(d)(8)(i) whether or not required to be filed with the
Commission, or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Securities
or of the offering that does not reflect the final terms, and all free writing prospectuses that are listed in Exhibit H hereto,
in each case in the form furnished (electronically or otherwise) to the Manager for use in connection with the offering of the Securities.
“NYSE”
means the New York Stock Exchange.
“Rule 158,”
“Rule 172,” “Rule 405,” “Rule 415,” “Rule 424(b),”
“Rule 430B,” and “Rule 433” refer to such rules under the Securities Act.
“Sales Price”
means, for each Issuance hereunder, the actual sale execution price of each Security sold by the Manager on the NYSE hereunder in the
case of ordinary brokers’ transactions, or as otherwise agreed by the parties in other methods of sale. Where the context requires,
the term “Sales Price” as used herein shall include the definition of the same under the Alternative Distribution Agreements.
“Xxxxxxxx-Xxxxx Act”
means the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated thereunder or implementing the provisions thereof.
“Selling Period”
means the period of one to 20 consecutive Trading Days (as determined by the Company in the Company’s sole discretion and specified
in the applicable Placement Notice (as amended by the corresponding Acceptance, if applicable)) beginning on the date specified in the
applicable Placement Notice (as amended by the corresponding Acceptance, if applicable) or, if such date is not a Trading Day, the next
Trading Day following such date.
“Securities”
means all shares of Common Stock issued or issuable pursuant to an Issuance that has occurred or may occur in accordance with the terms
and conditions of this Agreement. Where the context requires, the term “Securities” as used herein, shall include the definition
of the same under the Alternative Distribution Agreements.
“Trading Day”
means any day which is a trading day on the NYSE.
The Company will contribute
the Net Proceeds (as defined in Section 6(b)) from the sale of the Securities from time to time pursuant to this Agreement to the
Operating Partnership, and in exchange therefor, at each Settlement Date (as defined in Section 6(b)), the Operating Partnership
will issue to the Company units of limited partnership interest in the Operating Partnership (“OP Units”).
The Manager has been appointed
by the Company as its agent to sell the Securities and agrees to use commercially reasonable efforts to sell the Securities offered by
the Company upon the terms and subject to the conditions contained herein.
The
Company and the Operating Partnership have also entered into separate equity distribution agreements (collectively, the “Alternative
Distribution Agreements”), dated as of even date herewith, with [__________] (and, as applicable, their respective affiliates)
(each, in its capacity as agent and/or principal and, as applicable, forward seller and forward purchaser thereunder, an “Alternative
Manager”), for the issuance (in the case of the Securities) or borrowing (in the case of the Forward Hedge Securities (as defined
therein)) and sale from time to time through the applicable Alternative Managers on the terms set forth in the applicable Alternative
Distribution Agreements. The aggregate offering price of the Securities that may be sold pursuant to this Agreement and the Alternative
Distribution Agreements shall not exceed the Maximum Amount.
SECTION 2 PLACEMENTS.
(a) Upon
the terms and subject to the conditions of this Agreement, on any Trading Day as provided in Section 2(c) hereof during the
Commitment Period on which the conditions set forth in Section 9 hereof have been satisfied, the Company wishes to issue and sell
the Securities hereunder (each, a “Placement”), by delivery of an email notice (or other method mutually agreed to
in writing by the parties) to the Manager containing the parameters in accordance with which it desires the Securities to be sold, which
shall at a minimum include the number of Securities to be issued (the “Placement Securities”), the time period during
which sales are requested to be made, any limitation on the number of Securities that may be sold in any one day and any minimum price
below which sales may not be made (a “Placement Notice”), a form of which containing such minimum sales parameters
necessary is attached hereto as Exhibit A. The Placement Notice shall originate from any of the individuals from the Company
set forth on Exhibit B (with a copy to each of the other individuals from the Company listed on such schedule), and shall
be addressed to each of the individuals from the Manager set forth on Exhibit B, as such Exhibit B may be amended
from time to time.
(b) If
the Manager wishes to accept such proposed terms included in the Placement Notice (which it may decline to do for any reason in its sole
discretion) or, following discussion with the Company, wishes to accept amended terms, the Manager will, prior to 4:30 p.m. (New
York City Time) on the business day following the business day on which such Placement Notice is delivered to the Manager, issue to the
Company a notice by email (or other method mutually agreed to in writing by the parties) addressed to all of the individuals from the
Company and the Manager set forth on Exhibit B) setting forth the terms that the Manager is willing to accept. Where the terms
provided in the Placement Notice are amended as provided for in the immediately preceding sentence, such terms will not be binding on
the Company or the Manager until the Company delivers to the Manager an acceptance by email (or other method mutually agreed to in writing
by the parties) of all of the terms of such Placement Notice, as amended (the “Acceptance”), which email shall be addressed
to all of the individuals from the Company and the Manager set forth on Exhibit B. The Placement Notice (as amended by the
corresponding Acceptance, if applicable) shall be effective upon receipt by the Company of the Manager’s acceptance of the terms
of the Placement Notice or upon receipt by the Manager of the Company’s Acceptance, as the case may be, unless and until (i) the
entire amount of the Placement Securities has been sold, (ii) in accordance with the notice requirements set forth in the second
sentence of the prior paragraph, the Company terminates the Placement Notice, (iii) the Company issues a subsequent Placement Notice
with parameters superseding those on the earlier dated Placement Notice, (iv) this Agreement has been terminated under the provisions
of Section 13 or (v) either party shall have suspended the sale of the Placement Securities in accordance with Section 4
below. The termination of the effectiveness of a Placement Notice as set forth in the prior sentence shall not affect or impair any party’s
obligations with respect to any Securities sold hereunder prior to such termination or any Securities sold under any Alternative Distribution
Agreement. It is expressly acknowledged and agreed that neither the Company nor the Manager will have any obligation whatsoever with respect
to a Placement or any Placement Securities unless and until the Company delivers a Placement Notice to the Manager and either (i) the
Manager accepts the terms of such Placement Notice or (ii) where the terms of such Placement Notice are amended, the Company accepts
such amended terms by means of an Acceptance pursuant to the terms set forth above, and then only upon the terms specified in the Placement
Notice (as amended by the corresponding Acceptance, if applicable) and herein. In the event of a conflict between the terms of this Agreement
and the terms of a Placement Notice (as amended by the corresponding Acceptance, if applicable), the terms of the Placement Notice (as
amended by the corresponding Acceptance, if applicable) will control.
(c) No
Placement Notice may be delivered hereunder other than on a Trading Day during the Commitment Period, no Placement Notice may be delivered
hereunder if the Selling Period specified therein may overlap in whole or in part with any Selling Period specified in a Placement Notice
(as amended by the corresponding Acceptance, if applicable) delivered hereunder or under any Alternative Distribution Agreement unless
the Securities to be sold under all such previously delivered Placement Notices have all been sold.
(d) Notwithstanding
any other provision of this Agreement, any notice required to be delivered by the Company or by the Manager pursuant to this Section 2
may be delivered by telephone (confirmed promptly by facsimile or email addressed to all of the individuals from the Company and the Manager
set forth on Exhibit B, which confirmation will be promptly acknowledged by the receiving party) or other method mutually
agreed to in writing by the parties. For the avoidance of doubt, notices delivered by telephone shall originate from any of the individuals
from the Company or the Manager set forth on Exhibit B.
SECTION 3 SALE
OF SECURITIES.
(a) Subject
to the provisions of Sections 2(b) and 6(a), upon the delivery of a Placement Notice (as amended by the corresponding Acceptance,
if applicable), the Manager will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell
the Securities at market prevailing prices up to the amount specified, and otherwise in accordance with the terms of such Placement Notice
(as amended by the corresponding Acceptance, if applicable). The Manager will provide written confirmation to the Company no later than
the opening of the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Securities hereunder
setting forth the number of Securities sold on such day, the compensation payable by the Company to the Manager pursuant to this Section 3(a) with
respect to such sales, and the Net Proceeds payable to the Company, with an itemization of deductions made by the Manager (as set forth
in Section 6(b)) from the gross proceeds that it receives from such sales. The amount of any commission, discount or other compensation
to be paid by the Company to the Manager, when the Manager is acting as agent, in connection with the sale of the Securities shall be
determined in accordance with the terms set forth in Exhibit C. The amount of any commission, discount or other compensation
to be paid by the Company to the Manager, when the Manager is acting as principal, in connection with the sale of the Securities shall
be as separately agreed among the parties hereto at the time of any such sales.
(b) The
Securities may be offered and sold by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415
under the Securities Act, including without limitation sales made directly on the NYSE, on any other existing trading market for the Common
Stock or to or through a market maker, or subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if
applicable), by any other method permitted by law, including but not limited to, privately negotiated transactions.
SECTION 4 SUSPENSION
OF SALES.
The
Company or the Manager may, upon notice to the other party in writing (including by email correspondence to each of the individuals of
the other party set forth on Exhibit B, if receipt of such correspondence is actually acknowledged by any of the individuals
to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable facsimile transmission or
email correspondence to each of the individuals of the other party set forth on Exhibit B), suspend any sale of Securities,
and the applicable Selling Period shall immediately terminate; provided, however, that such suspension and termination shall
not affect or impair either party’s obligations with respect to any Securities sold hereunder prior to the receipt of such notice
or any Securities sold under any Alternative Distribution Agreement. The Company agrees that no such notice under this Section 4
shall be effective against the Manager unless it is made to one of the individuals named on Exhibit B hereto, as such Exhibit may
be amended from time to time. The Manager agrees that no such notice shall be effective against the Company unless it is made to one of
the individuals named on Exhibit B hereto, as such Exhibit may be amended from time to time; provided that the
failure by Manager to deliver such notice shall in no way effect such party’s right to suspend the sale of Securities hereunder.
SECTION 5 REPRESENTATIONS
AND WARRANTIES.
(a) Representations
and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent,
warrant and covenant to the Manager as of the date hereof and as of each Representation Date (as defined below) on which a certificate
is required to be delivered pursuant to Section 7(o) of this Agreement, as of each Applicable Time and as of each Settlement
Date, and agrees with the Manager, as follows:
(1) Registration
Statement and Prospectuses. The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405
of the Securities Act) and the Securities have been and remain eligible for registration by the Company on such automatic shelf registration
statement. The Company and the transactions contemplated by this Agreement meet the requirements for using Form S-3 under the Securities
Act pursuant to the standards for such form as currently in effect and as in effect immediately prior to October 21, 1992 and the
Securities have been and remain eligible for registration by the Company on such shelf registration statement. The Registration Statement
was automatically deemed effective upon filing with the Commission on May 27, 2020. No stop order suspending the effectiveness of
the Registration Statement is in effect, and no proceedings or examination under Section 8(d) or 8(e) of the Securities
Act are pending before or, to the Company’s knowledge, threatened by the Commission. The Company is not the subject of a pending
proceeding under Section 8A of the Securities Act in connection with the offering of the Securities. The Registration Statement meets
the requirements set forth in Rule 415(a)(1)(x) and complies in all other material respects with such Rule. The Company has
not received from the Commission any notice objecting to the use of the shelf registration statement form.
Each of the Registration
Statement and any post-effective amendment thereto, at the time of its effectiveness, at each deemed effective date with respect to the
Manager pursuant to Rule 430B(f)(2) under the Securities Act and as of each Settlement Date, complied and will comply in all
material respects at the time it became effective and at each Applicable Time with the requirements of the Securities Act. Each preliminary
prospectus (including the prospectus filed as part of the Registration Statement as originally filed or as part of any amendment or supplement
thereto), any supplement or any prospectus wrapper prepared in connection therewith, and the Prospectus complied in all material respects
at the time it was filed and at each Applicable Time with the Securities Act. Each preliminary prospectus and the Prospectus delivered
to the Manager for use in connection with the offering of any Securities was identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(2) Well-Known
Seasoned Issuer. (i) At the time of filing of the Registration Statement, (ii) at the time of the most recent amendment
thereto for the purposes of complying with Section 10(a)(3) of the Act or otherwise (whether such amendment was by post-effective
amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at
the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) of the Securities
Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 of the Act and (iv) at the date hereof,
the Company is a “well-known seasoned issuer” as defined in Rule 405 of the Securities Act.
(3) Incorporated
Documents. The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the Prospectus and
any Issuer Free Writing Prospectus (the “Incorporated Documents”), when they became effective or at the time they were
or hereafter are filed with the Commission, as the case may be, complied, comply and will comply in all material respects with the requirements
of the Exchange Act and, when read together with the other information in the Registration Statement, the Prospectus or such Issuer Free
Writing Prospectus when considered together with the Prospectus, as the case may be, (a) at the time the Registration Statement became
effective, (b) with respect to any offering of Securities, at the earlier of the time the Prospectus was first used and the
date and time of the first contract of sale of such Securities, and (c) at each relevant Settlement Date, did not and will not include
an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading.
(4) Accurate
Disclosure. Neither the Registration Statement nor any amendment thereto, at the times they became effective, at each deemed effective
date with respect to the Manager pursuant to Rule 430B(f)(2) under the Securities Act, at each Applicable Time and at each Settlement
Date, contained, contains or will contain an untrue statement of a material fact or omitted, omits or will omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading. Neither the Prospectus (nor any one or more
Issuer Free Writing Prospectuses when considered together with the Prospectus) nor any amendment or supplement thereto (including any
prospectus wrapper), as of its issue date, at the time of filing with the Commission pursuant to Rule 424(b) under the Securities
Act, at each Applicable Time or at any Settlement Date, included, includes or will include an untrue statement of a material fact or omitted,
omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
The representations
and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement (or any amendment thereto),
any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto (including any prospectus wrapper)), made
in reliance upon and in conformity with written information furnished to the Company by the Manager expressly for use therein.
(5) Issuer
Free Writing Prospectuses. No Issuer Free Writing Prospectus conflicts or will conflict with the information contained in the Registration
Statement or the Prospectus including any document incorporated or deemed incorporated by reference therein, and any preliminary or other
prospectus deemed to be a part thereof that has not been superseded or modified.
(6) Authorization
and Description of Securities. The Securities to be sold through the Manager, as principal or agent, have been duly and validly authorized
and conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus and, when issued
and delivered pursuant to this Agreement, will be fully paid and non-assessable free and clear of any pledge, lien, encumbrance, security
interest or other claim, and the issuance and sale of the Securities by the Company is not subject to preemptive or other similar rights
arising by operation of law, under the articles of incorporation, by-laws or other organizational documents of the Company or under any
agreement to which the Company or any one of its subsidiaries is a party; no person has a right of participation or first refusal with
respect to the sale of the Securities by the Company. The form of certificate for the Securities will be in valid and sufficient form
in compliance with Maryland law and the NYSE requirements.
(7) Capitalization.
The authorized, issued and outstanding capital stock of the Company is as set forth in the financial statements appearing in the most
recently filed Quarterly Report on Form 10-Q or, if more recent, the most recently filed Annual Report on Form 10-K (in each
case as amended, if applicable) filed by the Company with the Commission (other than for subsequent issuances, if any, pursuant to this
Agreement, the Master Forward Confirmation and any related Supplemental Confirmation, any other underwritten public offerings and other
than for subsequent issuances or share repurchases or cancellations, if any, pursuant to any employee benefit plans or dividend reinvestment
plans described in the Registration Statement and the Prospectus or upon exercise of outstanding options or other equity awards pursuant
to any stock option, stock bonus or other stock or compensatory plan or arrangement described in the Registration Statement and the Prospectus,
as the case may be, or upon the redemption of OP Units); all of the outstanding shares of Common Stock of the Company have been duly and
validly authorized and issued and are fully paid and nonassessable, and are free of any preemptive or similar rights. Except as disclosed
in the Registration Statement and the Prospectus (or any amendment or supplement thereto), there are no outstanding (i) securities
or obligations of the Company or any of its subsidiaries convertible into or exchangeable for any equity interests of the Company or any
such subsidiary, (ii) warrants, rights or options to subscribe for or purchase from the Company or any such subsidiary any such equity
interests or any such convertible or exchangeable securities or obligations or (iii) obligations of the Company or any such subsidiary
to issue any equity interests, any such convertible or exchangeable securities or obligation, or any such warrants, rights or options.
Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement thereto), there are no persons with
registration or other similar rights to have any equity or debt securities, including securities which are convertible into or exchangeable
for equity securities, registered pursuant to the Registration Statement or otherwise registered by the Company under the Securities Act
(other than those that have been waived).
(8) Good
Standing of the Company. Each of the Company and the Operating Partnership is a corporation and limited partnership, respectively,
duly organized, validly existing and in good standing under the laws of the state of its formation, with full corporate or partnership
power, as applicable, and authority to own, lease and operate its properties and to conduct its business as described in the Registration
Statement and the Prospectus, and each is duly registered and qualified to conduct its business, and is in good standing, in each jurisdiction
or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the
failure to so register or qualify would not reasonably be expected to have a material adverse effect on the condition (financial or other),
prospects, earnings, business, properties, net worth or results of operations of the Company and its subsidiaries taken as a whole, whether
or not arising from transactions in the ordinary course of business (a “Material Adverse Effect”).
(9) Good
Standing of the Subsidiaries. Each of the direct and indirect subsidiaries of the Company (other than the Operating Partnership) is
a corporation, limited liability company, limited partnership or trust, as applicable, duly organized, validly existing and in good standing
under the laws of the state of its formation, as set forth on Schedule I hereto, except where the failure to be in good standing
would not result in a Material Adverse Effect, with full corporate, limited liability company, partnership or trust power, as applicable,
and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the
Prospectus, and each is duly registered and qualified to conduct its business, and is in good standing, in each jurisdiction or place
where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure
to so register or qualify or be in good standing would not reasonably be expected to have a Material Adverse Effect.
(10) Subsidiaries.
Other than as set forth on Schedule I hereto, the Company has no subsidiary or subsidiaries and does not control, directly
or indirectly, any corporation, partnership, joint venture, association or other business association. The issued shares of capital stock
of each of the Company’s subsidiaries (including the Operating Partnership) have been duly authorized and validly issued, are fully
paid and non-assessable and are owned legally and beneficially by the Company free and clear of any security interests, liens, encumbrances,
equities or claims, except as disclosed in the Registration Statement and the Prospectus.
(11) Significant
Subsidiaries. The “significant subsidiaries” of the Company as defined in Section 1-02(w) of Regulation S-X
under the Securities Act are set forth in Schedule I hereto.
(12) Absence
of Proceedings. There are no legal or governmental actions, suits, inquiries, investigations or proceedings pending or, to the knowledge
of the Company, threatened, against the Company, the Operating Partnership or any of their subsidiaries, or to which the Company, the
Operating Partnership or any properties of the Company, the Operating Partnership or any of their subsidiaries is subject, that (A) are
required to be described in the Registration Statement or the Prospectus but are not described as required; (B) could reasonably
be expected to have a Material Adverse Effect on the performance of this Agreement or the consummation of any of the transactions contemplated
hereby; or (C) could reasonably be expected to have a Material Adverse Effect, except as set forth in or contemplated in the Registration
Statement and the Prospectus (exclusive of any supplement thereto). There are no statutes, regulations, off-balance sheet transactions,
contingencies or agreements, contracts, indentures, leases or other instruments or documents of a character that are required to be described
in the Registration Statement or the Prospectus or to be filed or incorporated by reference as an exhibit to the Registration Statement
or any Incorporated Document that are not described, filed or incorporated as required by the Securities Act or the Exchange Act. The
statements in the Registration Statement and the Prospectus under the heading “Material Federal Income Tax Considerations”
fairly summarize the matters therein described.
(13) Absence
of Violation, Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries is: (A) in
violation of (i) its respective articles of incorporation, partnership agreement, operating agreement or by-laws (or analogous governing
instruments), (ii) any law, ordinance, administrative or governmental rule or regulation applicable to the Company, the Operating
Partnership or any of their subsidiaries, except in the case of clause (ii), which violation would not reasonably be expected to have
a Material Adverse Effect, or (iii) any decree of any court or governmental agency or body having jurisdiction over the Company or
its subsidiaries; or (B) except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement thereto),
in default in any material respect in the performance of any obligation, agreement, condition or covenant (financial or otherwise) contained
in any bond, debenture, note or any other evidence of indebtedness or in any Material Agreement (as defined below), indenture, lease or
other instrument to which the Company, the Operating Partnership or any of their subsidiaries is a party or by which the Company, the
Operating Partnership or any of their subsidiaries or any of their respective properties may be bound, and, to the Company’s knowledge,
no such default is expected. All agreements, contracts or other arrangements that are material to the Company and the Operating Partnership
are set forth on Schedule II of this Agreement (the “Material Agreements”).
(14) Properties.
(A) The Company owns either directly or indirectly through its subsidiaries and has good and marketable title in fee simple to all
of the real properties (the “Properties”) described in the Registration Statement and the Prospectus as owned by them.
To the Company’s knowledge, none of the Company, the Operating Partnership or any of their subsidiaries is in violation of any municipal,
state or federal law, rule or regulation concerning any of their Properties, which violation would reasonably be expected to have
a Material Adverse Effect; (B) to the Company’s knowledge, each of the Properties complies with all applicable zoning laws,
ordinances and regulations in all material respects and, if and to the extent there is a failure to comply, such failure does not materially
impair the value of any of such Properties and will not result in a forfeiture or reversion of title thereof; (C) none of the Company,
the Operating Partnership or any of their subsidiaries has received from any governmental authority any written notice of any condemnation
of, or zoning change affecting any of, the Properties, and the Company does not know of any such condemnation or zoning change which is
threatened and which, in each case, if consummated would reasonably be expected to have a Material Adverse Effect; (D) the leases
under which the Company or any of its subsidiaries leases the Properties as lessor (the “Leases”) are in full force
and effect and have been entered into in the ordinary course of business of such entity, except as would not reasonably be expected to
have a Material Adverse Effect; (E) the Company and each of its subsidiaries has complied with its respective obligations under the
Leases in all material respects and the Company does not know of any default by any other party to the Leases which, alone or together
with other such defaults, would reasonably be expected to have a Material Adverse Effect; and (F) all liens, charges, encumbrances,
claims or restrictions on or affecting the assets (including the Properties) of the Company and its subsidiaries that are required to
be disclosed in the Registration Statement and the Prospectus are disclosed therein.
(15) Absence
of Conflicts. Neither the issuance and sale of the Securities, the execution, delivery or performance of this Agreement by the Company
or the Operating Partnership, nor the consummation by the Company or the Operating Partnership of the transactions contemplated hereby
(including the application of the proceeds from the sale of the Securities as described in the Registration Statement and the Prospectus):
(A) requires any consent, approval, authorization or other order of, or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency or official (except such as may be required for the registration of the Securities
under the Securities Act, the listing of the Securities on the NYSE and compliance with the securities or blue sky laws of various jurisdictions),
or conflicts or will conflict with or constitutes or will constitute a breach or violation of, or a default under, the articles of incorporation,
or by-laws (or analogous governing documents) of the Company, the Operating Partnership or any of their subsidiaries; or (B) (i) conflicts
or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument
to which the Company, the Operating Partnership or any of their subsidiaries is a party or by which the Company or the Operating Partnership
or any properties of the Company or the Operating Partnership or any of their subsidiaries may be bound, except as would not reasonably
be expected to have a Material Adverse Effect, or (ii) violates or will violate any statute, law, regulation or filing or judgment,
injunction, order or decree applicable to the Company, the Operating Partnership or any of their subsidiaries or any properties of the
Company, the Operating Partnership or any of their subsidiaries, or (iii) will result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any of their subsidiaries pursuant to the
terms of any agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries is a party or by which
the Company, the Operating Partnership or any of their subsidiaries may be bound, or to which any property or assets of the Company, the
Operating Partnership or any of their subsidiaries is subject.
(16) Independent
Accountants. To the Company’s knowledge, the accountants who certified the financial statements and schedules included or incorporated
by reference in the Registration Statement and the Prospectus (or any amendment or supplement thereto) are an independent registered public
accounting firm with respect to the Company as required by the Securities Act and the Exchange Act and the applicable published rules and
regulations thereunder and by the Public Company Accounting Oversight Board (“PCAOB”).
(17) Financial
Statements; Non-GAAP Financial Measures. The historical financial statements, together with related schedules and notes, included
or incorporated by reference in the Registration Statement and the Prospectus (and any amendment or supplement thereto), present fairly
in all material respects the financial position, results of operations and changes in financial position of the Company and its subsidiaries
on the basis stated in the Registration Statement and the Incorporated Documents at the respective dates or for the respective periods
to which they apply. Such statements and related schedules and notes have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved, except as disclosed therein. The other historical financial and statistical
information and data included or incorporated by reference in the Registration Statement and the Prospectus (and any amendment or supplement
thereto) are accurately presented and prepared on a basis consistent with the audited financial statements, included or incorporated in
the Registration Statement and the Prospectus, and the books and records of the Company and its subsidiaries. The financial statements
of the businesses or properties acquired or proposed to be acquired, if any, included in, or incorporated by reference into, the Registration
Statement or the Prospectus present fairly in all material respects the information set forth therein, have been prepared in conformity
with generally accepted accounting principles (“GAAP”) applied on a consistent basis and otherwise have been prepared
in accordance with the applicable financial statement requirements of Rule 3-05 or Rule 3-14 of Regulation S-X with respect
to real estate operations acquired or to be acquired. The pro forma financial statements and other pro forma financial information included,
or incorporated by reference in, the Registration Statement and the Prospectus include assumptions that provide a reasonable basis for
presenting the significant effects directly attributable to the transactions and events described therein, the related pro forma adjustments
give appropriate effect to those assumptions, and the pro forma adjustments reflect the proper application of those adjustments to the
historical financial statement amounts in the pro forma financial statements included in the Registration Statement and the Prospectus.
The pro forma financial statements included in the Registration Statement and the Prospectus comply as to form in all material respects
with the applicable accounting requirements of Regulation S-X under the Securities Act. The Company has filed with the Commission all
financial statements, together with related schedules and notes, required to be filed pursuant to the Securities Act. Any disclosures
contained or incorporated in the Registration Statement or the Prospectus regarding “non-GAAP financial measures” (as such
term is defined by the rules and regulations of the Commission) comply with Regulation G under the Exchange Act and Item 10 of Regulation
S-K under the Securities Act, to the extent applicable. The interactive data in eXtensible Business Reporting Language incorporated by
reference in the Registration Statement and the Prospectus fairly presents the information called for in all material respects and has
been prepared in accordance in all material respects with the Commission’s rules and guidelines applicable thereto.
(18) Corporate
Power. The Company has the corporate power to issue, sell and deliver the Securities as provided herein; the execution and delivery
of, and the performance by the Company of its obligations under, this Agreement have been duly and validly authorized by the Company,
and this Agreement has been duly executed and delivered by the Company and constitutes the valid and legally binding agreement of the
Company, enforceable against the Company in accordance with its terms, except as may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or other similar laws affecting creditors’ rights generally or by general principles of equity,
and except to the extent that rights to indemnity and contribution hereunder may be limited by federal or state securities laws; the execution
and delivery of, and the performance by the Operating Partnership of its obligations under, this Agreement have been duly and validly
authorized by the Operating Partnership, and this Agreement has been duly executed and delivered by the Operating Partnership and constitutes
the valid and legally binding agreement of the Operating Partnership, enforceable against the Operating Partnership in accordance with
its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’
rights generally and by general principles of equity and to the extent that rights to indemnity and contribution hereunder may be limited
by federal or state securities laws.
(19) No
Material Adverse Change in Business. Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement
thereto), subsequent to the respective dates as of which such information is given in the Registration Statement and the Prospectus (or
any amendment or supplement thereto), (A) none of the Company, the Operating Partnership or any of their subsidiaries has incurred
any liability or obligation (financial or other), direct or contingent, or entered into any transaction (including any off-balance sheet
activities or transactions), not in the ordinary course of business, that is material to the Company and its subsidiaries, as a whole;
(B) there has not been any material change in the capital stock, or partnership interests, as the case may be, or material increase
in the short-term debt or long-term debt (including any off-balance sheet activities or transactions), of either of the Company or the
Operating Partnership or the occurrence of or any development which may reasonably be expected to result in a Material Adverse Effect;
and (C) except for regular quarterly dividends on the Common Stock in amounts per share that are consistent with the past practice,
there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(20) Title
to Property. The Company, the Operating Partnership and each of their subsidiaries has good and marketable title to all property (real
and personal) described in the Registration Statement and the Prospectus as being owned by each of them (including the Properties), free
and clear of all liens, claims, security interests or other encumbrances that would materially and adversely affect the value thereof
or materially interfere with the use made or presently contemplated to be made thereof by them as described in the Registration Statement
and the Prospectus, except such as are described in the Registration Statement and the Prospectus, or in any document filed as an exhibit
to the Registration Statement, and each property described in the Registration Statement and the Prospectus as being held under lease
by the Company or any of its subsidiaries is held by it under a valid, subsisting and enforceable lease.
(21) Permitted
Free Writing Prospectus. Neither the Company nor any of its subsidiaries has distributed or will distribute any offering material
in connection with the offering and sale of the Securities to be sold hereunder by the Manager, as principal or agent for the Company,
other than the Prospectus and any Permitted Free Writing Prospectus (as defined in Section 20) reviewed and consented to by the Manager.
(22) Absence
of Manipulation. None of the Company, the Operating Partnership or any of their subsidiaries, nor any of the officers, directors or
partners thereof has taken, nor will any of them take, directly or indirectly, any action resulting in a violation of Regulation M under
the Exchange Act or designed to cause or result in, or which has constituted or which reasonably might be expected to constitute, the
stabilization or manipulation of the price of the Securities or facilitation of the sale or resale of the Securities.
(23) Prior
Written Communications. Any offer that is a written communication relating to the Securities made prior to the initial filing of the
Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) of
the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 of the Securities Act
and otherwise complied with the requirements of Rule 163 of the Securities Act, including without limitation the legending requirement.
(24) Possession
of Licenses and Permits. The Company, the Operating Partnership and each of their subsidiaries possess all certificates, permits,
licenses, franchises and authorizations of governmental or regulatory authorities (the “permits”) as are necessary
to own their respective properties and to conduct their respective businesses in the manner described in the Registration Statement and
the Prospectus, where such failure to possess could have, individually or in the aggregate, a Material Adverse Effect, subject to such
qualifications as may be set forth in the Registration Statement and the Prospectus. The Company, the Operating Partnership and each of
their subsidiaries has fulfilled and performed all of their respective material obligations with respect to such permits, and no event
has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or which would result in any
other material impairment of the rights of the holder of any such permit, subject in each case to such qualification as may be set forth
in the Registration Statement and the Prospectus.
(25) Disclosure
Controls and Procedures; Internal Controls. The Company, the Operating Partnership and each of their subsidiaries have established
and maintain disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) that are designed
to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded,
processed, summarized and reported, within the time periods specified in the Commission’s rules and forms and is accumulated
and communicated to the Company’s management, including its chief executive officer and chief financial officer, or persons performing
similar functions, as appropriate to allow timely decisions regarding required disclosure; and the Company, the Operating Partnership
and each of their subsidiaries maintain a system of internal control over financial reporting sufficient to provide reasonable assurance
regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with
generally accepted accounting principles and which includes policies and procedures that (i) pertain to the maintenance of records
that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company, the Operating
Partnership and each of their subsidiaries, (ii) provide reasonable assurance that transactions are recorded as necessary to permit
preparation of financial statements in accordance with generally accepted accounting principles and that receipts and expenditures of
the Company, the Operating Partnership and each of their subsidiaries are being made only in accordance with the authorization of management,
(iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisitions, use or dispositions of
assets that could have a material effect on the financial statements, and (iv) provide reasonable assurance that the interactive
data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement and the Prospectus
fairly presents the information called for in all material respects and is prepared in accordance with the Commission’s rules and
guidelines applicable thereto. The Company’s disclosure controls and procedures have been evaluated for effectiveness as of the
end of the period covered by the Company’s most recently filed Quarterly Report on Form 10-Q or, if more recent, the most recently
filed Annual Report on Form 10-K (in each case as amended, if applicable), as the case may be, which precedes the date of the Prospectus
and were effective in all material respects to perform the functions for which they were established. Based on the most recent evaluation
of its internal control over financial reporting, the Company was not aware of (i) any material weaknesses in the design or operation
of internal control over financial reporting, except as disclosed in the Registration Statement and the Prospectus, or (ii) any fraud,
whether or not material, that involves management or other employees who have a significant role in the Company’s internal control
over financial reporting. There has been no change in the Company’s internal control over financial reporting that has occurred
during its most recently completed fiscal quarter that has materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting, except as disclosed in the Registration Statement and the Prospectus.
(26) Cybersecurity.
With such exceptions as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect: to the
Company’s knowledge, there has been no material security breach, incident, or other compromise of the Company’s, the Operating
Partnership’s or any of their subsidiaries’ information computer systems, networks, and databases (including, without limitation,
the personal data and information of their respective customers, employees, suppliers and vendors and any third party data maintained,
processed or stored by the Company, the Operating Partnership and each of their subsidiaries, (collectively, “IT Systems and
Data”)); neither the Company, the Operating Partnership nor any of their subsidiaries have been notified of, or have knowledge
of any event or condition that would reasonably be expected to result in, any material security breach, incident or other compromise to
their IT Systems and Data; the Company, the Operating Partnership and each of their subsidiaries have implemented appropriate physical,
technological and administrative controls designed to maintain and protect the integrity, confidentiality and availability of their IT
Systems and Data, taking into account the nature, sensitivity and use of such IT Systems and Data, or as required by applicable regulatory
standards in all material respects; and the Company, the Operating Partnership and each of their subsidiaries are presently in material
compliance with all applicable laws or statutes, applicable judgments, orders, rules and regulations of any court or arbitrator or
governmental or regulatory authority having jurisdiction over the Company, the Operating Partnership or any of their subsidiaries and
internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and the protection of such IT
Systems and Data from unauthorized use, access, misappropriation or modification.
(27) Xxxxxxxx-Xxxxx
Act. There is and has been no failure on the part of the Company or any of the Company’s directors or officers, in their capacities
as such, to comply with any provision of the Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated in connection therewith,
including, without limitation, Section 402 related to loans to insiders and Sections 302 and 906 related to certifications.
(28) Payment
of Funds. To the Company’s knowledge, none of the Company, the Operating Partnership or any of their subsidiaries nor any employee
or agent of the Company, the Operating Partnership or any of their subsidiaries has made any payment of funds of the Company or its subsidiaries
or received or retained any funds in violation of any law, rule or regulation, which payment, receipt or retention of funds is of
a character required to be disclosed in the Registration Statement or the Prospectus.
(29) Foreign
Corrupt Practices Act. None of the Company, the Operating Partnership or any of their subsidiaries nor, to the knowledge of the Company,
any director, officer, agent, employee or affiliate of the Company, the Operating Partnership or any of their subsidiaries is aware of
or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act
of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation, making
use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay
or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of
value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or
any candidate for foreign political office, in contravention of the FCPA; and the Company, the Operating Partnership, their subsidiaries
and, to the knowledge of the Company, their affiliates have conducted their businesses in compliance with the FCPA and have instituted
and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance
therewith.
(30) Money
Laundering Laws. The operations of the Company, the Operating Partnership and their subsidiaries are and have been conducted at all
times in compliance with applicable financial recordkeeping and reporting requirements and the money laundering statutes and the rules and
regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental
agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company, the Operating Partnership or any of their subsidiaries with respect
to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(31) No
Conflict with Sanctions Laws. Neither the Company, the Operating Partnership, or any of their subsidiaries, directors, officers or
employees, nor, to the knowledge of the Company, any agent, or affiliate or other person associated with or acting on behalf of the Company,
the Operating Partnership or any of their subsidiaries is currently the subject or the target of any sanctions administered or enforced
by the U.S. Government, (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury or
the U.S. Department of State and including, without limitation, the designation as a “specially designated national” or “blocked
person”), the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority
(collectively, “Sanctions”), nor is the Company, the Operating Partnership or any of their subsidiaries located, organized
or resident in a country or territory that is the subject or the target of Sanctions, including, without limitation, Cuba, Iran,
North Korea, Syria, the Crimea Region of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s
Republic or in any other country or territory that is the subject of Sanctions (each, a “Sanctioned Country”); and
the Company will not directly or indirectly use the proceeds of the sale of the Securities hereunder, or lend, contribute or otherwise
make available such proceeds to any subsidiaries, joint venture partners or other person or entity (i) to fund or facilitate any
activities of or business with any person that, at the time of such funding or facilitation, is the subject or the target of Sanctions,
(ii) to fund or facilitate any activities of or business in any Sanctioned Country or (iii) in any other manner that will result
in a violation by any person (including any person participating in the transaction, whether as Manager, advisor, investor or otherwise)
of Sanctions. For the past five years, the Company, the Operating Partnership and their subsidiaries have not knowingly engaged in, are
not now knowingly engaged in, and will not knowingly engage in, any dealings or transactions with any person that at the time of the dealing
or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.
(32) Absence
of Labor Dispute. No labor problem or dispute with the employees of the Company and/or any of its subsidiaries or, to the Company’s
knowledge, any of the Company’s or its subsidiaries’ principal suppliers, contractors or customers, exists, is threatened
or imminent that could result in a Material Adverse Effect. To the Company’s knowledge, no labor problem or dispute with the Company’s
or its subsidiaries’ tenants exists, is threatened or imminent that could result in a Material Adverse Effect.
(33) Tax
Returns. Each of the Company, the Operating Partnership and their subsidiaries has timely filed all foreign, federal, state and local
tax returns that are required to be filed, which returns are complete and correct, or has requested extensions thereof (except in any
case in which the failure to so file timely would not reasonably be expected to have a Material Adverse Effect and except as set forth
in the Registration Statement and the Prospectus) and has paid all material taxes required to be paid by it and any material other assessment,
fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for any such assessment, fine or
penalty that is currently being contested in good faith. The Company has made appropriate provisions in the Company’s financial
statements that are incorporated by reference into the Registration Statement (or otherwise described in the Registration Statement and
the Prospectus) in respect of all federal, state, local and foreign income and franchise taxes for all current or prior periods as to
which the tax liability of the Company, the Operating Partnership and their subsidiaries has not been finally determined, except to the
extent of any inadequacy that would not reasonably be expected to result in a Material Adverse Effect.
(34) Registration
Rights. No holder of any security of the Company or the Operating Partnership has any right to require registration of the Securities
or any other security of the Company or the Operating Partnership because of the filing of the Registration Statement or consummation
of the transactions contemplated by this Agreement, which right has not been waived. The holders of outstanding shares of capital stock
of the Company and the Operating Partnership are not entitled to preemptive or other rights to subscribe for the Securities.
(35) Possession
of Intellectual Property. The Company, the Operating Partnership and their subsidiaries own or possess all patents, trademarks, trademark
registrations, service marks, service mark registrations, trade names, copyrights, licenses, inventions, trade secrets and rights described
in the Registration Statement and the Prospectus as being owned by them or necessary for the conduct of their respective businesses. The
Company is not aware of any claim to the contrary or any challenge by any other person to the rights of the Company, the Operating Partnership
and their subsidiaries with respect to the foregoing that would reasonably be expected to have a Material Adverse Effect.
(36) Investment
Company Act. Neither the Company nor any subsidiary is now, and after sale of the Securities to be sold by the Company hereunder and
the application of the net proceeds from such sale as described in the Registration Statement and the Prospectus under the caption “Use
of Proceeds,” will be, an “investment company” within the meaning of the Investment Company Act.
(37) Environmental
Laws. To the Company’s knowledge, the Company, the Operating Partnership, their subsidiaries, the Properties and the operations
conducted thereon comply and heretofore have complied with all applicable Environmental Laws, and no expenditures are required to maintain
or achieve such compliance, except as disclosed in environmental site assessment reports obtained by the Company on or before the date
hereof in connection with the purchase of any of the Properties or in a written summary maintained by the Company of the status of ongoing
environmental projects at the Properties, each of which have been directly provided to the Manager or its counsel (collectively, the “Environmental
Reports”) and except for those circumstances that have not had or would not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect, or as disclosed in the Registration Statement and the Prospectus.
None of the Company,
the Operating Partnership or any of their subsidiaries has at any time and, to the Company’s knowledge, no other party has at any
time, handled, buried, stored, retained, refined, transported, processed, manufactured, generated, produced, spilled, allowed to seep,
leak, escape or xxxxx, or be pumped, poured, emitted, emptied, discharged, injected, dumped, transferred or otherwise disposed of or dealt
with, Hazardous Materials (as defined below) on, to, under or from the Properties, except as disclosed in Environmental Reports, the Registration
Statement and the Prospectus and except for those circumstances that have not had or would not reasonably be expected to have a Material
Adverse Effect. None of the Company, the Operating Partnership or any of their subsidiaries intends to use the Properties or any subsequently
acquired properties for the purpose of handling, burying, storing, retaining, refining, transporting, processing, manufacturing, generating,
producing, spilling, seeping, leaking, escaping, leaching, pumping, pouring, emitting, emptying, discharging, injecting, dumping, transferring
or otherwise disposing of or dealing with Hazardous Materials; provided, however, the tenants of the Company and the Operating
Partnership may use Properties for their intended purpose, which may involve the handling, storing and transporting of Hazardous Materials.
To the Company’s
knowledge, no seepage, leak, escape, xxxxx, discharge, injection, release, emission, spill, pumping, pouring, emptying or dumping of Hazardous
Materials into any surface water, groundwater, soil, air or other media on or adjacent to the Properties has occurred, is occurring or
is reasonably expected to occur, except as is disclosed in the Environmental Reports or the Registration Statement and the Prospectus,
and except for those circumstances that would not reasonably be expected to have a Material Adverse Effect.
None of the Company,
the Operating Partnership or any of their subsidiaries has received written notice from any Governmental Authority or other person of,
or has knowledge of, any occurrence or circumstance which, with notice, passage of time, or failure to act, would give rise to any claim
against the Company, the Operating Partnership or any of their subsidiaries under or pursuant to any Environmental Law or under common
law pertaining to Hazardous Materials on or originating from the existing Properties or any act or omission of any party with respect
to the existing Properties, except as disclosed in the Environmental Reports, or the Registration Statement and the Prospectus and except
for those circumstances that would not reasonably be expected to have a Material Adverse Effect.
To the Company’s
knowledge, none of the Properties is included or proposed for inclusion on any federal, state, or local lists of sites which require or
might require environmental cleanup, including, but not limited to, the National Priorities List or CERCLIS List issued pursuant to CERCLA
(as defined below) by the United States Environmental Protection Agency or any analogous state list, except as is disclosed in the Environmental
Reports, the Registration Statement and the Prospectus and except for those circumstances that would not reasonably be expected to have
a Material Adverse Effect.
In the ordinary
course of its business, the Company periodically reviews the effect of Environmental Laws on the business, operations and properties of
the Company and its subsidiaries, in the course of which it identifies and evaluates associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws,
or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties). On
the basis of such review, the Company has reasonably concluded that such associated costs and liabilities would not, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Registration Statement and the Prospectus.
As used herein,
“Hazardous Material” shall include, without limitation, any flammable explosives, radioactive materials, hazardous
materials, hazardous wastes, hazardous or toxic substances, or related materials, asbestos, polychlorinated biphenyls (“PCBs”),
petroleum products and by-products and substances defined or listed as “hazardous substances,” “toxic substances,”
“hazardous waste,” or “hazardous materials” in any Federal, state or local Environmental Law.
As used herein,
“Environmental Law” shall mean all laws, common law duties, regulations or ordinances (including any orders or agreements)
of any Federal, state or local governmental authority having or claiming jurisdiction over any of the Properties (a “Governmental
Authority”) that are designed or intended to protect the public health and the environment or to regulate the handling of Hazardous
Materials, including, without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended
(42 U.S.C. Section 9601 et seq.) (“CERCLA”), the Hazardous Material Transportation Act, as amended (49 U.S.C.
Section 1801 et seq.), the Resource Conservation and Recovery Act, as amended (42 U.S.C. Section 6901 et seq.), the Federal
Water Pollution Control Act, as amended (33 U.S.C. Section 1251 et seq.), and the Clean Air Act, as amended (42 U.S.C. Section 7401
et seq.), and any and all analogous state or local laws.
(38) REIT
Qualification. Commencing with its taxable year ended December 31, 1994, the Company has been organized and operated in conformity
with the requirements for qualification and taxation as a real estate investment trust (“REIT”) under the Internal
Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder (collectively, the “Code”),
and the Company’s current and proposed method of operations as described in the Registration Statement and the Prospectus will enable
it to continue to meet the requirements for qualification and taxation as a REIT under the Code for its taxable year ending December 31,
2022 and thereafter. No transaction or other event has occurred, and none of the Company, the Operating Partnership, or any of their subsidiaries
has taken any action, that would reasonably be expected to cause the Company to not be able to qualify as a REIT for its taxable year
ending December 31, 2022 or future taxable years. Each of the Company’s direct or indirect subsidiaries that is treated as
a corporation for U.S. federal income tax purposes will qualify as a “taxable REIT subsidiary” within the meaning of Section 856(l) of
the Code. The Operating Partnership will be treated as a partnership and not as an association taxable as a corporation for U.S. federal
income tax purposes.
(39) Insurance.
The Company, the Operating Partnership and each of their subsidiaries is insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged and the value of their
properties. All policies of insurance and fidelity or surety bonds insuring the Company, the Operating Partnership or any of their subsidiaries
or their respective businesses, assets, employees, officers and directors are in full force and effect. The Company, the Operating Partnership
and each of their subsidiaries are in compliance with the terms of such policies and instruments in all material respects and there are
no claims by the Company, the Operating Partnership or any of their subsidiaries under any such policy or instrument as to which any insurance
company is denying liability or defending under a reservation of rights clause, except as would not reasonably be expected to have a Material
Adverse Effect. None of the Company, the Operating Partnership or any of their subsidiaries has been refused any insurance coverage sought
or applied for, and the Company does not have any reason to believe that the Company, the Operating Partnership and each of their subsidiaries
will not be able to renew its respective existing insurance coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue their respective businesses at a cost that would not reasonably be expected to have a
Material Adverse Effect.
(40) Title Insurance.
The Company, the Operating Partnership and their subsidiaries have title insurance on each of the Properties owned in fee simple in amounts
at least equal to the cost of acquisition of such property; with respect to an uninsured loss on any of the Properties, the title insurance
shortfall would not reasonably be expected to have a Material Adverse Effect.
(41) Distributions.
Except as disclosed in the Registration Statement and the Prospectus (or pursuant to the terms of the indebtedness described therein),
no subsidiary of the Company is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any
other distribution on such subsidiary’s capital stock, from repaying to the Company any loans or advances to such subsidiary from
the Company or from transferring any of such subsidiary’s assets or property to the Company or any other subsidiary of the Company.
(42) Transfer
Taxes. There are no transfer taxes or other similar fees or charges under Federal law or the laws of any state, or any political subdivision
thereof, required to be paid in connection with the execution and delivery of this Agreement or the issuance by the Company or sale by
the Company of the Securities.
(43) Employee
Benefits. Each of the Company and its subsidiaries has fulfilled its obligations, if any, under the minimum funding standards of Xxxxxxx 000
xx xxx Xxxxxx Xxxxxx Employee Retirement Income Security Act of 1974 (“ERISA”) and the regulations and published interpretations
thereunder with respect to each “plan” (as defined in Section 3(3) of ERISA and such regulations and published interpretations)
in which employees of the Company and its subsidiaries are eligible to participate. Each such plan is in compliance in all material respects
with the presently applicable provisions of ERISA and such regulations and published interpretations. Neither the Company nor any of its
subsidiaries has incurred any unpaid liability to the Pension Benefit Guaranty Corporation (other than for the payment of premiums in
the ordinary course) or to any such plan under Title IV of ERISA.
(44) No
Equity Awards. To the knowledge of the Company, no stock option awards granted by the Company have been retroactively granted, or
the exercise or purchase price of any stock option award determined retroactively.
(45) Authorized
Capital Stock. The Company’s authorized capitalization is as set forth in the Registration Statement and the Prospectus; the
capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement and
the Prospectus; the outstanding shares of Common Stock of the Company have been duly and validly authorized and issued in compliance with
all Federal and state securities laws, and are fully paid and non-assessable.
(46) NYSE.
The outstanding shares of Common Stock and the Securities to be sold by the Company from time to time hereunder have been approved for
listing, subject only to official notice of issuance, on the NYSE, and are registered pursuant to Section 12(b) of the Exchange
Act, and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Securities
under the Exchange Act or delisting any such securities from the NYSE, nor has the Company received any notification that the Commission
or the NYSE is contemplating terminating such registration or listing.
(47) Statistical
and Market-Related Data. The statistical and market related data included in the Registration Statement and the Prospectus are based
on or derived from sources the Company believes to be reliable and accurate as of the respective dates of such documents, and the Company
has obtained the written consent to the use of such data from such sources to the extent required.
(48) Independent
Directors. Each of the independent directors (or independent director nominees, once appointed, if applicable) named in the Registration
Statement and Prospectus satisfies the independence standards established by NYSE and, with respect to members of the Company’s
audit committee, the enhanced independence standards contained in Rule 10A-3(b)(1) promulgated by the Commission under the Exchange
Act.
(49) Absence
of Further Requirements. The Company is not required to register as a “broker” or “dealer” in accordance with
the provisions of the rules and the Exchange Act and does not, directly or indirectly through one or more intermediaries, control
or have any other association with (within the meaning of Article I of the Bylaws of the Financial Industry Regulatory Authority, Inc.
(“FINRA”)) any member firm of FINRA. No relationship, direct or indirect, exists between or among the Company, on the
one hand, and the directors, officers or stockholders of the Company, on the other hand, which is required by the rules of FINRA
to be described in the Registration Statement and the Prospectus, which is not so described.
(50) Lending
Relationships. Except as disclosed in the Registration Statement and the Prospectus, (i) neither the Company nor any of its subsidiaries
has any material lending or similar relationship with the Manager or any bank or other lending institution affiliated with the Manager;
and (ii) the Company does not intend to use any of the proceeds from the sale of the Securities by the Company hereunder to reduce
or retire the balance of any loan or credit facility extended by any affiliate of the Manager.
(51) No
Finder’s Fee. Except for the discounts and commissions payable by the Company to the Manager and each of the Alternative Managers
in connection with the offering of the Securities contemplated herein or as otherwise disclosed in the Registration Statement and the
Prospectus, the Company has not incurred any liability for any brokerage commission, finder’s fees or similar payments in connection
with the offering of the Securities contemplated hereby.
(52) Actively
Traded Security. The shares of Common Stock are “actively traded securities” excepted from the requirements of Rule 101
of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
(53) Proprietary
Trading by the Manager. The Company acknowledges and agrees that the Manager has informed the Company that the Manager may, to the
extent permitted under the Securities Act and the Exchange Act, purchase and sell the Common Stock for its own account while this Agreement
is in effect, and shall be under no obligation to purchase Securities on a principal basis pursuant to this Agreement, except as otherwise
agreed by the Manager in the Placement Notice (as amended by the corresponding Acceptance, if applicable); provided, that no such purchase
or sales shall take place while a Placement Notice is in effect (except (i) as agreed by the Manager in the Placement Notice (as
amended by the corresponding Acceptance, if applicable) or (ii) to the extent the Manager may engage in sales of Placement Securities
purchased or deemed purchased from the Company as a “riskless principal” or in a similar capacity).
(b) Officers’
Certificates. Any certificate signed by any officer of the Company or any authorized representative of the Operating Partnership and
delivered to the Manager or to counsel for the Manager shall be deemed a representation and warranty by the Company or the Operating Partnership,
as the case may be, to the Manager as to the matters covered thereby as of the date or dates indicated on such certificate.
SECTION 6 SALE
AND DELIVERY; SETTLEMENT.
(a) Sale
of Securities. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein
set forth, upon the Manager’s acceptance of the terms of a Placement Notice or upon receipt by the Manager of an Acceptance, as
the case may be, and unless the sale of the Securities described therein has been declined, suspended, or otherwise terminated in accordance
with the terms of this Agreement, the Manager will use its commercially reasonable efforts consistent with its normal trading and sales
practices to sell such Securities at market prevailing prices up to the amount specified, and otherwise in accordance with the terms of
such Placement Notice (as amended by the corresponding Acceptance, if applicable). Each of the Company and the Operating Partnership acknowledges
and agrees that (i) there can be no assurance that the Manager will be successful in selling Securities, (ii) the Manager will
incur no liability or obligation to the Company, the Operating Partnership or any other person or entity if it does not sell Securities
for any reason other than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading and sales
practices to sell such Securities as required under this Section 6 and (iii) the Manager shall be under no obligation to purchase
Securities on a principal basis pursuant to this Agreement, except as otherwise agreed by the Manager in the Placement Notice (as amended
by the corresponding Acceptance, if applicable).
(b) Settlement
of Securities. Unless otherwise specified in the applicable Placement Notice (as amended by the corresponding Acceptance, if applicable),
settlement for sales of Securities will occur on the second (2nd) Trading Day (or such earlier day as is industry practice for regular-way
trading) following the date on which such sales are made (each, a “Settlement Date”). The amount of proceeds to be
delivered to the Company on a Settlement Date against receipt of the Securities sold will be equal to the aggregate offering price received
by the Manager at which such Securities were sold, after deduction for (i) the Manager’s commission, discount or other compensation
for such sales payable by the Company pursuant to Section 3 hereof, (ii) any other amounts due and payable by the Company to
the Manager hereunder pursuant to Section 8(a) hereof, and (iii) any transaction fees imposed by any governmental or self-regulatory
organization in respect of such sales (the “Net Proceeds”).
(c) Delivery
of Securities. On or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically transfer the
Securities being sold by crediting the Manager’s or its designee’s account (provided the Manager shall have given the Company
written notice of such designee prior to the Settlement Date) at The Depository Trust Company through its Deposit and Withdrawal at Custodian
System or by such other means of delivery as may be mutually agreed upon by the parties hereto which in all cases shall be freely tradable,
transferable, registered shares in good deliverable form. On each Settlement Date, the Manager will deliver the related Net Proceeds in
same day funds to an account designated by the Company prior to the Settlement Date. The Company agrees that if the Company, or its transfer
agent (if applicable), defaults in its obligation to deliver Securities on a Settlement Date, the Company agrees that in addition to and
in no way limiting the rights and obligations set forth in Section 10(a) and Section 11 hereto, it will (i) hold the
Manager harmless against any loss, liability, claim, damage, or expense whatsoever (including reasonable legal fees and expenses), as
incurred, arising out of or in connection with such default by the Company or its transfer agent (if applicable) and (ii) pay to
the Manager any commission, discount, or other compensation to which it would otherwise have been entitled absent such default. If the
Manager breaches this Agreement by failing to deliver the applicable Net Proceeds on any Settlement Date for Securities delivered by the
Company, the Manager will pay the Company interest based on the effective overnight federal funds rate until such proceeds, together with
interest, have been fully paid.
(d) Denominations;
Registration. The Securities shall be in such denominations and registered in such names as the Manager may request in writing at
least one full business day before the Settlement Date. The Company shall deliver the Securities, if any, through the facilities of The
Depository Trust Company as described in the preceding paragraphs unless the Manager shall otherwise instruct.
(e) Limitations
on Offering Size. Under no circumstances shall the Company cause or request the offer or sale of any Securities, if after giving effect
to the sale of such Securities, the aggregate offering price of the Securities sold pursuant to this Agreement would exceed the lesser
of (A) together with all sales of Securities under this Agreement and each of the Alternative Distribution Agreements, the Maximum
Amount, (B) the amount available for offer and sale under the currently effective Registration Statement, and (C) the amount
authorized from time to time to be issued and sold under this Agreement by the Company and notified to the Manager in writing. Under no
circumstances shall the Company cause or request the offer or sale of any Securities pursuant to this Agreement at a price lower than
the minimum price authorized from time to time by the Company and notified to the Manager in writing. Further, under no circumstances
shall the aggregate offering price of Securities sold pursuant to this Agreement and the Alternative Distribution Agreements, including
any separate underwriting or similar agreement covering principal transactions described in Section 1 of this Agreement and the Alternative
Distribution Agreements, exceed the Maximum Amount.
(f) Limitation
on Managers. The Company agrees that any offer to sell, any solicitation of an offer to buy or any sales of Securities shall only
be effected by or through only the Manager or the respective Alternative Manager on any single given day, but in no event more than one,
and the Company shall in no event request that the Manager and one or more of the Alternative Managers sell Securities on the same day;
provided, however, that (a) the foregoing limitation shall not apply to (i) the exercise of any option, warrant,
right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security
holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons,
(b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement and (c) such limitation
shall not apply if, prior to any such request to sell Securities, all Securities the Company has previously requested the Manager to sell
have been sold.
(g) Notwithstanding
any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale of, any Securities and,
by notice to the Manager given by telephone (confirmed promptly by facsimile transmission or email), shall cancel any instructions for
the offer or sale of any Securities, and the Manager shall not be obligated to offer or sell any Securities, (i) during any period
in which the Company is, or reasonably could be deemed to be, in possession of material non-public information, (ii) at any time
during the period commencing on the 10th business day prior to the date (each, an “Announcement Date”) on which the
Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of operations
(each, an “Earnings Announcement”), (iii) except as provided in Section 6(h) below, at any time from
and including an Announcement Date through and including the time that the Company files (a “Filing Time”) a Quarterly
Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the same
period or periods, as the case may be, covered by such Earnings Announcement; provided that, unless otherwise agreed between the Company
and the Manager for purposes of (i) and (ii) above, such period shall be deemed to end at the relevant Filing Time.
(h) If
the Company wishes to offer, sell or deliver Securities at any time during the period from and including an Announcement Date through
and including time that is 24 hours after the corresponding Filing Time, the Company shall (i) prepare and deliver to the Manager
(with a copy to its counsel) a Current Report on Form 8-K which shall include substantially the same financial and related information
as was set forth in the relevant Earnings Announcement (other than any earnings projections, similar forward-looking data and officers’
quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Manager, (ii) provide
the Manager with the officers’ certificate, opinions/letters of counsel and accountants’ letter called for by Sections 7(o),
(p), (q), (r), and (s) hereof; respectively, (iii) afford the Manager the opportunity to conduct a due diligence review in accordance
with Section 7(m) hereof and (iv) file such Earnings 8-K with the Commission. The provisions of clause (ii) of Section 6(g) shall
not be applicable for the period from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the
time that is 24 hours after the time that the relevant Earnings Announcement was first publicly released) through and including the Filing
Time of the relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K under the Exchange Act, as the case may be.
For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificate, opinions/letters of counsel
and accountants’ letter pursuant to this Section 6(h) shall not relieve the Company from any of its obligations under
this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including,
without limitation, the obligation to deliver officers’ certificates, opinions/letters of counsel and accountants’ letters
as provided in Section 7 hereof and (B) other than as set forth in this Section 6(h), this Section 6(h) shall
in no way affect or limit the operation of the provisions of clauses (i) and (iii) of Section 6(h), which shall have independent
application.
SECTION 7 COVENANTS
OF THE COMPANY AND THE OPERATING PARTNERSHIP.
Each of the Company and the
Operating Partnership jointly and severally covenants with the Manager as follows:
(a) Registration
Statement Amendments. After the date of this Agreement and during any Selling Period or period in which a Prospectus relating to any
Securities is required to be delivered by the Manager under the Securities Act (including in circumstances where such requirement may
be satisfied pursuant to Rule 172 under the Securities Act), (i) the Company will promptly notify the Manager of the time when
any subsequent amendment to the Registration Statement, other than documents incorporated by reference therein, has been filed with the
Commission and/or has become effective or any subsequent supplement to the Prospectus has been filed and of any comment letter from the
Commission or any request by the Commission for any amendment or supplement to the Registration Statement or Prospectus or for additional
information; (ii) the Company will prepare and file with the Commission, promptly upon the Manager’s request, any amendments
or supplements to the Registration Statement or Prospectus that, in the reasonable opinion of the Manager may be necessary or advisable
in connection with the distribution of the Securities by the Manager (provided, however, that the failure of the Manager
to make such request shall not relieve the Company of any obligation or liability hereunder, or affect the Manager’s right to rely
on the representations and warranties made by the Company and the Operating Partnership in this Agreement); (iii) the Company will
not file any amendment or supplement to the Registration Statement or Prospectus, other than documents incorporated by reference into
the Registration Statement, relating to the Securities or a security convertible into the Securities unless a copy thereof has been submitted
to the Manager within a reasonable period of time before the filing and the Manager has not reasonably objected thereto (provided,
however, that the failure of the Manager to make such objection shall not relieve the Company of any obligation or liability hereunder,
or affect the Manager’s right to rely on the representations and warranties made by the Company and the Operating Partnership in
this Agreement) and the Company will furnish to the Manager at the time of filing thereof a copy of any document that upon filing is deemed
to be incorporated by reference into the Registration Statement or Prospectus, except for those documents available via XXXXX; and (iv) the
Company will cause each amendment or supplement to the Prospectus, other than documents incorporated by reference into the Registration
Statement, to be filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b) under the Securities
Act (without reliance on Rule 424(b)(8)).
(b) Notice
of Commission Stop Orders. The Company will advise the Manager, promptly after it receives notice or obtains knowledge thereof, of
the issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or
of any other order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction or of the loss or suspension of any exemption from any such qualification,
or of the initiation or threatening of any proceedings for any of such purposes, or of any examination pursuant to Section 8(e) of
the Securities Act concerning the Registration Statement or if the Company becomes the subject of a proceeding under Section 8A of
the Securities Act in connection with the offering of the Securities. The Company will use its commercially reasonable efforts to prevent
the issuance of any stop order, the suspension of any qualification of the Securities for offering or sale and any loss or suspension
of any exemption from any such qualification, and if any such stop order is issued or any such suspension or loss occurs, to obtain the
lifting thereof at the earliest possible moment.
(c) Delivery
of Registration Statement and Prospectus. The Company will furnish to the Manager and its respective counsel (at the expense of the
Company), on or before their respective due dates, copies of the Registration Statement, the Prospectus (including all documents incorporated
by reference therein) and all amendments and supplements to the Registration Statement or Prospectus, and any Issuer Free Writing Prospectuses,
that are filed with the Commission during any Selling Period or period in which a Prospectus relating to the Securities is required to
be delivered under the Securities Act, in such quantities and at such locations as the Manager may from time to time reasonably request;
provided, however, that the Company shall not be required to furnish any document (other than the Prospectus) to the Manager
to the extent such document is available on XXXXX. The copies of the Registration Statement and the Prospectus and any supplements or
amendments thereto furnished to the Manager will be identical to the electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(d) Continued
Compliance with Securities Laws. If at any time during any Selling Period or period when a Prospectus is required by the Securities
Act or the Exchange Act to be delivered in connection with a pending sale of the Securities (including, without limitation, pursuant to
Rule 172), any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the
Manager or for the Company, to (i) amend the Registration Statement in order that the Registration Statement will not include an
untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements
therein not misleading, (ii) amend or supplement the Prospectus in order that the Prospectus will not include any untrue statement
of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or (iii) amend the Registration Statement or amend or supplement
the Prospectus in order to comply with the requirements of the Securities Act, the Company will promptly notify the Manager to suspend
the offering of Securities during such period and the Company will promptly prepare and file with the Commission such amendment or supplement
as may be necessary to correct such statement or omission or to make the Registration Statement or the Prospectus comply with such requirements,
and the Company will furnish to the Manager such number of copies of such amendment or supplement as the Manager may reasonably request.
If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of
which such Issuer Free Writing Prospectus conflicted, conflicts or would conflict with the information contained in the Registration Statement
or the Prospectus or included, includes or would include an untrue statement of a material fact or omitted, omits or would omit to state
a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, prevailing
at that subsequent time, not misleading, the Company will promptly notify the Manager to suspend the offering of Securities during such
period and the Company will, subject to Section 7(a) hereof, promptly amend or supplement, at its own expense, such Issuer Free
Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(e) Blue
Sky and Other Qualifications. The Company will use its best efforts, in cooperation with the Manager, to qualify the Securities for
offering and sale, or to obtain an exemption for the Securities to be offered and sold, under the applicable securities laws of such states
and other jurisdictions (domestic or foreign) as the Manager may designate and to maintain such qualifications and exemptions in effect
for so long as required for the distribution of the Securities (but in no event for less than one year from the date of this Agreement);
provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify
as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation
in respect of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Securities
have been so qualified or exempt, the Company will file such statements and reports as may be required by the laws of such jurisdiction
to continue such qualification or exemption, as the case may be, in effect for so long as required for the distribution of the Securities
(but in no event for less than one year from the date of this Agreement).
(f) Rule 158.
The Company will make generally available to its securityholders as soon as practicable an earnings statement for the purposes of,
and to provide to the Manager the benefits contemplated by, the last paragraph of Section 11(a) of the Securities Act and Rule 158.
(g) Use
of Proceeds. The Company and the Operating Partnership will use the Net Proceeds received by them from the sale of the Securities
in the manner specified in the Prospectus under “Use of Proceeds.”
(h) Listing.
During any Selling Period or any period in which the Prospectus relating to the Securities is required to be delivered by the Manager
under the Securities Act with respect to a pending sale of the Securities (including in circumstances where such requirement may be satisfied
pursuant to Rule 172 under the Securities Act), the Company will use its commercially reasonable efforts to cause the Securities
to be listed on the NYSE.
(i) Filings
with the NYSE. The Company will timely file with the NYSE all material documents and notices required by the NYSE of companies that
have or will issue securities that are traded on the NYSE.
(j) Reporting
Requirements. The Company, during any Selling Period or period when the Prospectus is required to be delivered under the Securities
Act and the Exchange Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities
Act), will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by
the Exchange Act.
(k) Notice
of Other Sales. During any Selling Period, the Company shall provide the Manager notice as promptly as reasonably possible (and, in
any event, at least two (2) business days) before it offers to sell, contracts to sell, sells, grants any option to sell or otherwise
disposes of any shares of Common Stock (other than Securities offered pursuant to the provisions of this Agreement or the Alternative
Distribution Agreements) or securities convertible into or exchangeable for Common Stock, warrants or any rights to purchase or acquire
shares of Common Stock; provided, that such notice shall not be required in connection with the (i) issuance, grant or sale
of Common Stock, options to purchase shares of Common Stock or shares of Common Stock issuable upon the exercise of options or other equity
awards pursuant to any stock option, stock bonus or other stock or compensatory plan or arrangement described in the Prospectus, including
shares of Common Stock issuable upon redemption of OP Units, (ii) the issuance of securities in connection with an acquisition, merger
or sale or purchase of assets described in the Prospectus, or (iii) the issuance or sale of shares of Common Stock pursuant to any
dividend reinvestment plan that the Company may adopt from time to time, provided the implementation of such dividend reinvestment plan
is disclosed to the Manager in advance.
(l) Change
of Circumstances. The Company will, at any time during a fiscal quarter in which the Company intends to tender a Placement Notice
or sell Securities, advise the Manager promptly after it shall have received notice or obtained knowledge thereof, of any information
or fact that would alter or affect in any material respect any opinion, certificate, letter or other document provided to the Manager
pursuant to this Agreement.
(m) Due
Diligence Cooperation. The Company will cooperate with any reasonable due diligence review conducted by the Manager or its respective
agents in connection with the transactions contemplated hereby, including, without limitation, providing information and making available
documents and senior officers, during regular business hours and at the Company’s principal offices, as the Manager may reasonably
request.
(n) Disclosure
of Sales. The Company will disclose in its Quarterly Reports on Form 10-Q and in its Annual Report on Form 10-K in respect
of any quarter in which sales of Securities were made under this Agreement, and/or, at the Company’s option, in a Current Report
on Form 8-K, the number of Securities sold under this Agreement and any Alternative Distribution Agreement, the Net Proceeds to the
Company and the compensation payable by the Company with respect to such sales.
(o) Representation
Dates; Certificates. On or prior to the date that the first Securities are sold pursuant to the terms of this Agreement, each time
Securities are delivered to the Manager as principal on a Settlement Date, each time the Manager shall reasonably request and each time
the Company:
(i) files
the Prospectus relating to the Securities or amends or supplements the Registration Statement or the Prospectus relating to the Securities
by means of a post-effective amendment, sticker, or supplement but not by means of incorporation of documents by reference into the Registration
Statement or the Prospectus relating to the Securities;
(ii) files
an Annual Report on Form 10-K under the Exchange Act;
(iii) files
a Quarterly Report on Form 10-Q under the Exchange Act; or
(iv) files
a Current Report on Form 8-K containing amended financial information (other than an Earnings Announcement, to “furnish”
information pursuant to Item 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K relating to
the reclassifications of certain properties as discontinued operations in accordance with Statement of Financial Accounting Standards
No. 144) under the Exchange Act (each such date of filing of one or more of the documents referred to in clauses (1)(i) through
(iv) and any time of request pursuant to this Section 7(o) shall be a “Representation Date”), the Company
shall furnish the Manager with a certificate, in the form attached hereto as Exhibit D as promptly as possible and in no event
later than three (3) Trading Days of any Representation Date. The requirement to provide a certificate under this Section 7(o) shall
be waived for any Representation Date occurring at a time at which no Placement Notice (as amended by the corresponding Acceptance, if
applicable) is pending, which waiver shall continue until the earlier to occur of the date the Company delivers a Placement Notice hereunder
(which for such calendar quarter shall be considered a Representation Date) and the next occurring Representation Date; provided, however,
that such waiver shall not apply for any Representation Date on which the Company files its Annual Report on Form 10-K. Notwithstanding
the foregoing, if the Company subsequently decides to sell Securities following a Representation Date when the Company relied on such
waiver and did not provide the Manager with a certificate under this Section 7(o), then before the Company delivers the Placement
Notice or the Manager sells any Securities, the Company shall provide the Manager with a certificate, in the form attached hereto as Exhibit D,
dated the date of the Placement Notice.
(p) Opinion
of Counsel for Company and the Operating Partnership. On or prior to the date that the first Securities are sold pursuant to the terms
of this Agreement, each time Securities are delivered to the Manager as principal on a Settlement Date, and as promptly as possible and
in no event later than three (3) Trading Days of each Representation Date with respect to which the Company is obligated to deliver
a certificate in the form attached hereto as Exhibit D for which no waiver is applicable, the Company shall cause to be furnished
to the Manager a written opinion and a 10b-5 statement of Xxxxxxxx LLP, counsel for the Company and the Operating Partnership, or other
counsel satisfactory to the Manager, in form and substance satisfactory to the Manager and its counsel, dated the date that the opinion
and 10b-5 statement is required to be delivered, substantially similar to the form attached hereto as Exhibit E, modified,
as necessary, to relate to the Registration Statement and the Prospectus as then amended or supplemented; provided, however,
that in lieu of such opinions for subsequent Representation Dates, any such counsel may furnish the Manager with a letter (a “Reliance
Letter”) to the effect that the Manager may rely on a prior opinion delivered under this Section 7(p) to the same
extent as if it were dated the date of such letter (except that statements in such prior opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended or supplemented at such Representation Date).
(q) Opinion
of Tax Counsel. On or prior to the date that the first Securities are sold pursuant to the terms of this Agreement, each time Securities
are delivered to the Manager as principal on a Settlement Date, and as promptly as possible and in no event later than three (3) Trading
Days of each Representation Date with respect to which the Company is obligated to deliver a certificate in the form attached hereto as
Exhibit D for which no waiver is applicable, the Company shall cause to be furnished to the Manager a written opinion of Xxxxxxxx
LLP, tax counsel for the Company and the Operating Partnership, or other counsel satisfactory to the Manager, in form and substance satisfactory
to the Manager and its counsel, dated the date that the opinion is required to be delivered, substantially similar to the form attached
hereto as Exhibit F, modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended or
supplemented; provided, however, that in lieu of such opinions for subsequent Representation Dates, any such counsel may
furnish the Manager with a Reliance Letter to the effect that the Manager may rely on a prior opinion delivered under this Section 7(q) to
the same extent as if it were dated the date of such letter (except that statements in such prior opinion shall be deemed to relate to
the Registration Statement and the Prospectus as amended or supplemented at such Representation Date).
(r) Maryland
Counsel Legal Opinion. On or prior to the date that the first Securities are sold pursuant to the terms of this Agreement, each time
Securities are delivered to the Manager as principal on a Settlement Date, and as promptly as possible and in no event later than three
(3) Trading Days of each Representation Date with respect to which the Company is obligated to deliver a certificate in the form
attached hereto as Exhibit D for which no waiver is applicable, the Manager shall have received the favorable opinion of Xxxxxxx
Xxxxx LLP, Maryland counsel for the Company dated the date that the opinion is required to be delivered, substantially similar to the
form attached hereto as Exhibit G, modified, as necessary, to relate to the Registration Statement and the Prospectus as then
amended or supplemented; provided, however, that in lieu of such opinions for subsequent Representation Dates, any
such counsel may furnish the Manager with a Reliance Letter to the effect that the Manager may rely on a prior opinion delivered under
this Section 7(r) to the same extent as if it were dated the date of such letter (except that statements in such prior opinion
shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date).
(s) Comfort
Letter. On or prior to the date that the first Securities are sold pursuant to the terms of this Agreement, each time Securities are
delivered to the Manager as principal on a Settlement Date, and as promptly as possible and in no event later than three (3) Trading
Days of each Representation Date with respect to which the Company is obligated to deliver a certificate in the form attached hereto as
Exhibit D for which no waiver is applicable, the Company shall cause its independent accountants to furnish the Manager a
letter (a “Comfort Letter”), dated the date the Comfort Letter is delivered, in form and substance satisfactory to
the Manager, (i) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act,
the Exchange Act and the PCAOB, (ii) stating, as of such date, the conclusions and findings of such firm with respect to the financial
information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with
registered public offerings (the first such letter, the “Initial Comfort Letter”) and (iii) updating the Initial
Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified
as necessary to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of such letter.
(t) Market
Activities. Neither the Company nor the Operating Partnership will, directly or indirectly, (i) take any action designed to cause
or result in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Securities or (ii) sell, bid for, or purchase the Securities to be
issued and sold pursuant to this Agreement, or pay anyone any compensation for soliciting purchases of the Securities to be issued and
sold pursuant to this Agreement other than the Manager; provided, however, that the Company may bid for and purchase shares
of its Common Stock in accordance with Rule 10b-18 under the Exchange Act.
(u) Compliance
with Laws. The Company, the Operating Partnership and each of their subsidiaries shall maintain, or cause to be maintained, all material
environmental permits, licenses and other authorizations required by federal, state and local law in order to conduct their businesses
as described in the Prospectus, and the Company and each of its subsidiaries shall conduct their businesses, or cause their businesses
to be conducted, in substantial compliance with such permits, licenses and authorizations and with applicable Environmental Laws, except
where the failure to maintain or be in compliance with such permits, licenses and authorizations could not reasonably be expected to have
a Material Adverse Effect.
(v) Securities
Act and Exchange Act. The Company will use its best efforts to comply with all requirements imposed upon it by the Securities Act
and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Securities
as contemplated by the provisions hereof and the Prospectus.
(w) No
Offer to Sell. Other than a free writing prospectus (as defined in Rule 405 under the Securities Act) approved in advance in
writing by the Company and the Manager in its capacity as principal or agent hereunder, the Company (including its agents and representatives,
other than the Manager as such) will not, directly or indirectly, make, use, prepare, authorize, approve or refer to any free writing
prospectus relating to the Securities to be sold by the Manager as principal or agent hereunder.
(x) Regulation
M. If the Company has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under
the Exchange Act are not satisfied with respect to the Company or the Common Stock, it shall promptly notify the Manager and sales of
the Securities under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of
each party.
(y) Qualification
and Taxation as a REIT. The Company will use its best efforts to continue to qualify for taxation as a REIT under the Code and will
not take any action to revoke or otherwise terminate the Company’s REIT election, unless the Company’s board of directors
determines in good faith that it is no longer in the best interests of the Company and its stockholders to be so qualified.
(z) Renewal
of Registration Statement. The date of this Agreement is not more than three years subsequent to the initial effective date of the
Registration Statement (the “Renewal Date”). If, immediately prior to the Renewal Date, this Agreement has not terminated
and a prospectus is required to be delivered or made available by the Manager under the Securities Act or the Exchange Act in connection
with the sale of such Securities, the Company will, prior to the Renewal Date, file, if it has not already done so, a new shelf registration
statement or, if applicable, an automatic shelf registration statement relating to such Securities, and, if such registration statement
is not an automatic shelf registration statement, will use its best efforts to cause such registration statement to be declared effective
within 180 days after the Renewal Date, and will take all other reasonable actions necessary or appropriate to permit the public offer
and sale of such Securities to continue as contemplated in the expired registration statement relating to such Securities. References
herein to the “Registration Statement” shall include such new shelf registration statement or automatic shelf registration
statement, as the case may be.
(aa) Rights
to Refuse Purchase. If, to the knowledge of the Company, all filings required by Rule 424 under the Securities Act in connection
with the offering of the Securities shall not have been made or the representations and warranties of the Company and the Operating Partnership
in Section 5 hereof shall not be true and correct on any applicable Settlement Date, the Company will offer to any person who has
agreed to purchase Securities from the Company as a result of an offer to purchase solicited by the Manager the right to refuse to purchase
and pay for such Securities.
SECTION 8 PAYMENT
OF EXPENSES.
(a) Expenses.
The Company will pay all expenses incident to the performance of its obligations under this Agreement, including (i) the preparation,
printing and filing of the Registration Statement (including financial statements and exhibits) as originally filed and of each amendment
and supplement thereto, (ii) the preparation, issuance and delivery of the certificates for the Securities to the Manager, including
any stock or other transfer taxes and any capital duties, stamp duties or other duties or taxes payable upon the sale, issuance or delivery
of the Securities to the Manager, (iii) the fees and disbursements of the counsel, accountants and other advisors to the Company,
(iv) the qualification or exemption of the Securities under securities laws in accordance with the provisions of Section 7(e) hereof,
including filing fees and the reasonable fees and disbursements of counsel for the Manager in connection therewith and in connection with
the preparation of a state securities law or “blue sky” survey and any supplements thereto (which fees and disbursements of
counsel shall not exceed $10,000), (v) the printing and delivery to the Manager of copies of any Permitted Free Writing Prospectus
and the Prospectus and any amendments or supplements thereto and any costs associated with electronic delivery of any of the foregoing
by the Manager to investors, (vi) the fees and expenses of the custodian and the transfer agent and registrar for the Securities,
(vii) the filing fees incident to, and the reasonable fees and disbursements of counsel to the Manager in connection with, the review
by FINRA of the terms of the sale of the Securities (which fees and disbursements of counsel shall not exceed $10,000) and (viii) the
fees and expenses incurred in connection with the listing of the Securities on the NYSE.
(b) Termination
of Agreement. If this Agreement is terminated by the Manager in accordance with the provisions of Section 9 or Section 13(a)(i) or
(iii) (with respect to the first clause only) hereof, the Company shall reimburse the Manager and the Alternative Managers for all
reasonable, accountable out of pocket expenses, including reasonable fees and disbursements of counsel actually incurred by the Manager
and the Alternative Managers in connection with the transactions contemplated by this Agreement and the Alternative Distribution Agreements,
unless Securities having an aggregate offering price of $30,000,000 or more have previously been offered and sold under this Agreement
and/or the Alternative Distribution Agreements; provided, however, that the Expenses shall not exceed an aggregate under
this Agreement and the Alternative Distribution Agreements of $100,000.
SECTION 9 CONDITIONS
OF THE OBLIGATIONS OF THE MANAGER.
The obligations of the Manager
hereunder with respect to a Placement will be subject to the continuing accuracy and completeness of the representations and warranties
of the Company and the Operating Partnership contained in this Agreement or in certificates of any officer of the Company, the Operating
Partnership or any of their subsidiaries delivered pursuant to the provisions hereof, to the performance by the Company and the Operating
Partnership of their covenants and other obligations hereunder, and to the following further conditions:
(a) Effectiveness
of Registration Statement; Payment of Filing Fee. The Registration Statement shall have become effective and shall be available for
(i) all sales of Securities issued pursuant to all prior Placement Notices (each as amended by a corresponding Acceptance, if applicable)
and (ii) the sale of all Securities contemplated to be issued by any Placement Notice (as amended by the corresponding Acceptance,
if applicable). The Company shall have paid the required Commission filing fees relating to the Securities within the time required by
Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and
457(r) of the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance
with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of the
Prospectus).
(b) No
Material Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company or any of its
subsidiaries of any request for additional information from the Commission or any other federal or state governmental authority during
the period of effectiveness of the Registration Statement, the response to which would require any post-effective amendments or supplements
to the Registration Statement or the Prospectus; (ii) the issuance by the Commission or any other federal or state governmental authority
of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt
by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Securities
for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) the occurrence of any event
that makes any material statement made in the Registration Statement or the Prospectus, or any Issuer Free Writing Prospectus, or any
material document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making
of any changes in the Registration Statement, related Prospectus, or any Issuer Free Writing Prospectus, or such documents so that, in
the case of the Registration Statement, it will not contain any materially untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus
and any Issuer Free Writing Prospectus, it will not contain any materially untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading.
(c) No
Misstatement or Material Omission. The Manager shall not have advised the Company that the Registration Statement or Prospectus, or
any Issuer Free Writing Prospectus, or any amendment or supplement thereto, contains a material untrue statement of fact or omits to state
a material fact that is required to be stated therein or is necessary to make the statements therein not misleading.
(d) Material
Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with the Commission, there shall
not have been any material adverse change to the condition, financial or otherwise, or in the properties, earnings, business affairs or
business prospects of the Company, the Operating Partnership and each of their subsidiaries considered as one enterprise.
(e) Opinion
of Counsel for Company and the Operating Partnership. The Manager shall have received the favorable opinions of Xxxxxxxx LLP, required
to be delivered pursuant to Section 7(p) on the date on which such delivery of such opinion is required pursuant to Section 7(p).
(f) Opinion
of Tax Counsel for Company and the Operating Partnership. The Manager shall have received the favorable opinions of Xxxxxxxx LLP,
tax counsel for the Company and the Operating Partnership, required to be delivered pursuant to Section 7(q) on the date on
which such delivery of such opinion is required pursuant to Section 7(q).
(g) Opinion
of Maryland Counsel for the Company. The Manager shall have received the favorable opinions of the Company’s Maryland Counsel,
required to be delivered pursuant to Section 7(r) on the date on which such delivery of such opinion is required pursuant to
Section 7(r).
(h) Opinion
of Counsel for the Manager. On or prior to the date that the first Securities are sold pursuant to the terms of this Agreement and
each time Securities are delivered to the Manager as principal on the Settlement Date, as promptly as possible and in no event later than
three (3) Trading Days of each Representation Date with respect to which no waiver is applicable, the Manager shall have received
the favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel for the Manager, dated the date the opinion is required to be delivered,
in customary form and substance satisfactory to the Manager, and the Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such matters. In rendering such opinion, Xxxxxx & Xxxxxxx LLP
may rely as to matter involving the laws of the State of Maryland upon the opinion of Xxxxxxx Xxxxx LLP referred to in Section 7(r).
(i) Representation
Certificate. The Manager shall have received the certificate required to be delivered pursuant to Section 7(o) on the date
on which delivery of such certificate is required pursuant to Section 7(o).
(j) Accountant’s
Comfort Letter. The Manager shall have received the Comfort Letter required to be delivered pursuant to Section 7(s) on
the date on which such delivery of such Comfort Letter is required pursuant to Section 7(s).
(k) Approval
of Listing. The Securities shall have been approved for listing on the NYSE, subject only to official notice of issuance.
(l) No
Suspension. Trading in the Securities shall not have been suspended on the NYSE.
(m) Additional
Documents. On each date on which the Company is required to deliver a certificate pursuant to Section 7(o), counsel for the Manager
shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon
the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein contained.
(n) Securities
Act Filings Made. All filings with the Commission required by Rule 424 under the Securities Act to have been filed prior to the
issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing by Rule 424.
(o) Termination
of Agreement. If any condition specified in this Section 9 shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Manager by notice to the Company, and such termination shall be without liability of any party
to any other party except as provided in Section 8 hereof and except that, in the case of any termination of this Agreement, Sections 5,
10, 11, 12 and 21 hereof shall survive such termination and remain in full force and effect. For the avoidance of doubt, any such termination
shall not affect or impair any party’s obligations with respect to any Securities sold hereunder prior to the occurrence thereof
or any Securities sold under any Alternative Distribution Agreement.
(p) No
Downgrade. Subsequent to the execution and delivery of this Agreement,
there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized
statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or
potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible
change.
SECTION 10 INDEMNIFICATION.
(a) Indemnification
by the Company. The Company and the Operating Partnership, jointly and severally, agree to indemnify and hold harmless the Manager,
its affiliates (as such term is defined in Rule 501(b) under the Securities Act (each an “Affiliate”)), its
selling agents and each person, if any, who controls the Manager within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act and any director, officer, employee or affiliate thereof as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, or arising out
of or based upon any untrue statement or alleged untrue statement of a material fact included in any Issuer Free Writing Prospectus or
the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement
of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever
arising out of or based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject
to Section 10(d) below) any such settlement is effected with the written consent of the Company; and
(iii) against
any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Manager) reasonably incurred
in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever arising out of or based upon any such untrue statement or omission, or any such alleged
untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above, provided, however,
that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of or based
upon any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information
furnished to the Company by the Manager expressly for use in the Registration Statement (or any amendment thereto), or in any Issuer
Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto).
(b) Indemnification
by the Manager. The Manager agrees to indemnify and hold harmless the Company and the Operating Partnership, the Company’s directors,
each of the Company’s officers who signed the Registration Statement, and each person, if any, who controls the Company or the Operating
Partnership within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, to the same extent as
the foregoing indemnity from the Company and the Operating Partnership to the Manager contained in subsection (a) of this Section 10,
as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the Company by the Manager expressly for use therein.
(c) Actions
against Parties; Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result
thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement.
In the case of parties indemnified pursuant to Section 10(a) above, counsel to the indemnified parties shall be selected by
the Manager, and, in the case of parties indemnified pursuant to Section 10(b) above, counsel to the indemnified parties shall
be selected by the Company. An indemnifying party may participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to
the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition
to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of or based upon the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment
with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be sought under this Section 10 or Section 11 hereof
(whether or not the indemnified parties are actual or potential parties thereto), unless (x) such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all liability arising out of or based upon such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party and (y) the indemnifying party confirms in writing its indemnification obligations
hereunder with respect to such settlement, compromise or judgment.
(d) Settlement
without Consent if Failure to Reimburse. If at any time an indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 10(a)(ii) effected without its written consent if (i) such settlement is entered into more
than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party
shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
SECTION 11 CONTRIBUTION.
If the indemnification provided
for in Section 10 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any
losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses reasonably incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company and the Operating Partnership, on the one hand,
and the Manager, on the other hand, from the offering of the Securities pursuant to this Agreement or (ii) if the allocation provided
by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and the Operating Partnership, on the one hand, and of
the Manager, on the other hand, in connection with the statements or omissions that resulted in such losses, liabilities, claims, damages
or expenses, as well as any other relevant equitable considerations.
The relative benefits received
by the Company and the Operating Partnership, on the one hand, and the Manager, on the other hand, in connection with the offering of
the Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as (a) in the case of the Company
and the Operating Partnership, the total net proceeds from the offering of the Securities for each Issuance under this Agreement (before
deducting expenses) received by the Company and the Operating Partnership, and (b) in the case of Manager, the total commissions
received by the Manager bear to the aggregate public offering price of the Securities.
The relative fault of the
Company and the Operating Partnership, on the one hand, and the Manager, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by each such party and the parties’ relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
Each of the Company, the Operating
Partnership and the Manager agrees that it would not be just and equitable if contribution pursuant to this Section 11 were determined
by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above
in this Section 11. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and
referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever arising out of or based upon any such untrue or alleged untrue statement or omission
or alleged omission.
Notwithstanding
the provisions of this Section 11, the Manager shall not in any event be required to contribute any amount in excess of the amount
by which total price at which the Securities sold by it pursuant to this Agreement, exceeds the amount of any damages which the
Manager has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 11,
each person, if any who controls the Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act and the Manager’s Affiliates and selling agents shall have the same rights to contribution as the Manager, and each director
of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company or
the Operating Partnership within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Company or the Operating Partnership, subject in each case to the preceding two paragraphs.
For purposes of this Section 11,
the Company and the Operating Partnership shall be deemed one party, jointly and severally liable for any obligations hereunder.
SECTION 12 REPRESENTATIONS,
WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties
and agreements contained in this Agreement or in certificates of officers of the Company, the Operating Partnership or each of their subsidiaries
submitted pursuant hereto, shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of
the Manager or any of its Affiliates or selling agents, any person controlling the Manager or its respective officers or directors, or
by or on behalf of the Company or the Operating Partnership or any person controlling the Company or the Operating Partnership, and shall
survive delivery of the Securities to the Manager and shall survive delivery and acceptance of the Securities and payment therefor or
any termination of this Agreement.
SECTION 13 TERMINATION
OF AGREEMENT.
(a) Termination;
General. The Manager may terminate this Agreement, by notice to the Company, as hereinafter specified at any time (i) if there
has been, since the time of execution of this Agreement or since the date as of which information is given in the Prospectus, any material
adverse change in the condition, financial or otherwise, or in the properties, earnings, business affairs or business prospects of the
Company, the Operating Partnership and each of their subsidiaries whether or not arising in the ordinary course of business, or (ii) if
there has occurred any material adverse change in the financial markets in the United States or the international financial markets, any
outbreak of hostilities or escalation thereof, any acts of terrorism involving the United States or other calamity or crisis or any change
or development involving a prospective change in national or international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the sole judgment of the Manager, impracticable or inadvisable to market the Securities or to
enforce contracts for the sale of the Securities, (iii) if trading in the Securities has been suspended or materially limited by
the Commission or the NYSE, or (iv) if trading generally on the NYSE, the NYSE American or the Nasdaq Global Market has been suspended
or materially limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any
of said exchanges or by order of the Commission, FINRA or any other governmental authority, or a material disruption has occurred in commercial
banking or securities settlement or clearance services in the United States, or (v) if a banking moratorium has been declared by
either Federal or New York authorities.
(b) Termination
by the Company. Subject to Section 13(f) hereof, the Company shall have the right to terminate this Agreement in its sole
discretion at any time after the date of this Agreement.
(c) Termination
by the Manager. Subject to Section 13(f) hereof, the Manager shall have the right to terminate this Agreement in its sole
discretion at any time after the date of this Agreement.
(d) Automatic
Termination. Unless earlier terminated pursuant to this Section 13, this Agreement shall automatically terminate upon the issuance
and sale of Securities through the Manager or the Alternative Managers on the terms and subject to the conditions set forth herein or
the Alternative Distribution Agreements, as applicable, with an aggregate sale price equal to the Maximum Amount.
(e) Continued
Force and Effect. This Agreement shall remain in full force and effect unless terminated pursuant to Sections 13(a), (b), (c), or
(d) above or otherwise by mutual agreement of the parties.
(f) Effectiveness
of Termination. Any termination of this Agreement shall be effective on the date specified in such notice of termination; provided,
however, that such termination shall not be effective until the close of business on the date of receipt of such notice by the
Manager or the Company, as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Securities, such
Securities shall settle in accordance with the provisions of this Agreement.
(g) Liabilities.
If this Agreement is terminated pursuant to this Section 13, such termination shall be without liability of any party to any
other party except as provided in Section 8 hereof, and except that, in the case of any termination of this Agreement, Section 5,
Section 10, Section 11, Section 12, Section 21 and Section 22 hereof shall survive such termination and remain
in full force and effect.
SECTION 14 NOTICES.
Except as otherwise provided
in this Agreement, all notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed
or transmitted by any standard form of telecommunication. Notices to the Manager shall be directed to [ ] [ ]; and notices to the Company
and the Operating Partnership shall be directed to it at 00 X. Xxxx Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (facsimile: 248-737-9110), Attention:
Xxxxx Xxxxxxxxxx, Email: xxxxx@xxxxxxxxxxx.xxx.
SECTION 15 PARTIES.
This Agreement shall inure
to the benefit of and be binding upon the Manager, the Company, the Operating Partnership and their respective successors. Nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Manager, the
Company, the Operating Partnership and their respective successors and the controlling persons and officers, directors, employees or affiliates
referred to in Sections 10 and 11 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be
for the sole and exclusive benefit of the Manager, the Company, the Operating Partnership and their respective successors, and said controlling
persons and officers, directors, employees or affiliates and their heirs and legal representatives, and for the benefit of no other person,
firm or corporation. No purchaser of Securities from the Manager shall be deemed to be a successor by reason merely of such purchase.
SECTION 16 ADJUSTMENTS
FOR SHARE SPLITS.
The parties acknowledge and
agree that all share-related numbers contained in this Agreement shall be adjusted to take into account any share split, share dividend
or similar event effected with respect to the Securities.
SECTION 17 GOVERNING
LAW AND TIME.
THIS AGREEMENT AND ANY CLAIM,
CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS. UNLESS OTHERWISE EXPLICITLY PROVIDED, SPECIFIED TIMES OF DAY REFER TO
NEW YORK CITY TIME.
SECTION 18 EFFECT
OF HEADINGS.
The Section and Exhibit headings
herein are for convenience only and shall not affect the construction hereof.
SECTION 19 RESEARCH
ANALYST INDEPENDENCE.
The Company acknowledges that (a) the Manager’s
research analysts and research departments are required to be independent from their respective investment banking divisions and are subject
to certain regulations and internal policies and (b) the Manager’s research analysts may hold views and make statements or
investment recommendations and/or publish research reports with respect to the Company, the value of the Common Stock and/or the offering
that differ from the views of their respective investment banking divisions. The Company hereby waives and releases, to the fullest extent
permitted by law, any claims that it may have against the Manager with respect to any conflict of interest that may arise from the fact
that the views expressed by the Manager’s independent research analysts and research departments may be different from or inconsistent
with the views or advice communicated to the Company by the Manager’s investment banking division. The Company acknowledges that
the Manager is a full service securities firm and as such, from time to time, subject to applicable securities laws, may effect transactions
for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that
are the subject of the transactions contemplated by this Agreement.
SECTION 20 PERMITTED
FREE WRITING PROSPECTUSES.
Each of the Company and the
Operating Partnership represent, warrant and agree that, unless it obtains the prior consent of the Manager and the Manager represents,
warrants and agrees that, unless it obtains the prior consent of the Company, it has not made and will not make any offer relating to
the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,”
as defined in Rule 405 under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented
to by the Manager or by the Company, as the case may be, is hereinafter referred to as a “Permitted Free Writing Prospectus.”
The Company represents and warrants that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer
free writing prospectus,” as defined in Rule 433 under the Securities Act, and has complied and will comply with the requirements
of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending
and record keeping. For the purposes of clarity, the parties hereto agree that all free writing prospectuses, if any, listed in Exhibit H
hereto are Permitted Free Writing Prospectuses.
SECTION 21 ABSENCE
OF FIDUCIARY RELATIONSHIP.
Each of the Company and the
Operating Partnership, severally and not jointly, acknowledges and agrees that:
(a) the
Manager is acting solely as agent and/or principal in connection with the public offering of the Securities and in connection with each
transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship among
the Company, the Operating Partnership or any of their respective affiliates, stockholders (or other equity holders), creditors or employees
or any other party, on the one hand, and the Manager, on the other hand, has been or will be created in respect of any of the transactions
contemplated by this Agreement, irrespective of whether or not the Manager has advised or is advising the Company and/or the Operating
Partnership on other matters, and the Manager has no obligation to the Company or the Operating Partnership with respect to the transactions
contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the
public offering price of the Securities set forth in this Agreement was not established by the Manager;
(c) it
is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated
by this Agreement;
(d) the
Manager has not provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated by this Agreement
and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(e) it
is aware that the Manager and its respective affiliates are engaged in a broad range of transactions which may involve interests that
differ from those of the Company and the Operating Partnership and the Manager have no obligation to disclose such interests and transactions
to the Company or the Operating Partnership by virtue of any fiduciary, advisory or agency relationship or otherwise;
(f) the
Manager and its respective affiliates may engage in trading in the Common Stock for their own account or for the account of its clients
at the same time as sales of the Securities occur pursuant to this Agreement; and
(g) it
waives, to the fullest extent permitted by law, any claims it may have against the Manager for breach of fiduciary duty or alleged breach
of fiduciary duty and agrees that the Manager shall not have any liability (whether direct or indirect, in contract, tort or otherwise)
to it in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on its behalf or in right of it or the
Company, the Operating Partnership, employees or creditors of the Company or the Operating Partnership.
SECTION 22 CONSENT
TO JURISDICTION.
Any legal suit, action or
proceeding arising out of or based upon this Agreement or the transactions contemplated hereby shall be instituted in (i) the federal
courts of the United States of America located in the City and County of New York, Borough of Manhattan or (ii) the courts of the
State of New York located in the City and County of New York, Borough of Manhattan (collectively, the “Specified Courts”),
and each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a
judgment of any such court, as to which such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding. Service
of any process, summons, notice or document by mail to such party’s address set forth above shall be effective service of process
for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to
the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree
not to plead or claim in any such court that any such suit, action or other proceeding brought in any such court has been brought in an
inconvenient forum.
SECTION 23 PARTIAL
UNENFORCEABILITY.
The invalidity or unenforceability
of any Section, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other Section, paragraph
or provision hereof. If any Section, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable,
there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
SECTION 24 WAIVER
OF JURY TRIAL.
Each of the Company (on its
behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates), the Operating Partnership and the
Manager hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
SECTION 25 COUNTERPARTS.
This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one
and the same Agreement. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the
U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law,
e.g., xxx.xxxxxxxx.xxx) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered
and be valid and effective for all purposes.
SECTION 26 AMENDMENTS
AND WAIVERS.
Any provision or requirement
of this Agreement may be waived or amended in any respect by a writing signed by the parties hereto. No waiver or amendment shall be enforceable
against any party hereto unless in writing and signed by the party against which such waiver is claimed. A waiver of any provision or
requirement of this Agreement shall not constitute a waiver of any other term and shall not affect the other provisions of this Agreement.
A waiver of a provision or requirement of this Agreement will apply only to the specific circumstances cited therein and will not prevent
a party from subsequently requiring compliance with the waived provision or requirement in other circumstances.
SECTION 27 RECOGNITION
OF THE U.S. SPECIAL RESOLUTION REGIMES.
(a) In
the event that the Manager is a Covered Entity and becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer
from the Manager of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as
the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were
governed by the laws of the United States or a state of the United States.
(b) In
the event that the Manager is a Covered Entity or a BHC Act Affiliate of the Manager and becomes subject to a proceeding under a U.S.
Special Resolution Regime, Default Rights under this Agreement that may be exercised against the Manager are permitted to be exercised
to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed
by the laws of the United States or a state of the United States.
As used in this Section 15:
“BHC Act Affiliate”
has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity”
means any of the following:
| 1. | a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R.
§ 252.82(b); |
| 2. | a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R.
§ 47.3(b); or |
| 3. | a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R.
§ 382.2(b). |
“Default Right”
has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1,
as applicable.
“U.S. Special Resolution
Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title
II of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
[Signature Page Follows]
If the foregoing is in accordance
with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement among the Manager, the Operating Partnership and the Company in accordance with
its terms.
[Signature
Page to the 2022 Equity Distribution Agreement without Forward]
CONFIRMED AND ACCEPTED, as of the date first above written:
[ ], as Manager |
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By: |
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Name: |
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Title: |
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[Signature
Page to the 2022 Equity Distribution Agreement without Forward]
Exhibit A
Form of
Placement Notice
Exhibit B
Authorized Individuals
for Placement Notices and Acceptances
Exhibit C
Compensation
The Manager shall be paid compensation at a mutually
agreed rate, not to exceed 2.0% of the gross sales price of Securities pursuant to the terms of this Agreement.
Exhibit D
Officers’
Certificate
Exhibit E
Form of
Corporate Opinion of
Xxxxxxxx LLP
Exhibit F
Form of
TAX Opinion of
Xxxxxxxx LLP
Exhibit G
Form of
Opinion of Xxxxxxx Xxxxx LLP
Exhibit H
Permitted
Free Writing Prospectus
Schedule
I
List
of Subsidiaries and Joint Ventures
Schedule
II
Material
Agreements