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UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date
of report (Date of earliest event reported): October 19, 2023
ALPINE INCOME PROPERTY TRUST, INC.
(Exact name of registrant as specified in its charter)
Maryland |
001-39143 |
84-2769895 |
(State or other jurisdiction
of incorporation) |
(Commission File Number) |
(IRS Employer
Identification No.) |
|
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369 N. New York Ave., Suite 201
Winter Park, Florida 32789 |
(Address of principal executive offices) (Zip Code) |
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Registrant’s telephone number, including area code: (407) 904-3324 |
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each
class |
|
Trading
Symbol |
|
Name of each
exchange
on which registered |
Common Stock, par value $0.01 per share |
|
PINE |
|
New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company x
If an emerging growth company, indicate
by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Filing of New ATM Prospectus
On October 20, 2023, Alpine Income Property
Trust, Inc., a Maryland corporation (the “Company”), filed with the Securities and Exchange Commission (“SEC”)
a prospectus supplement, dated October 20, 2023, pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the
“ATM Prospectus”), relating to the offer and sale of $109,543,948 aggregate gross offering price of shares of the Company’s
common stock, par value $0.01 per share (the “Common Stock”), remaining unsold under the Company’s previously disclosed
at-the-market equity offering program (the “Shares”). The ATM Prospectus was filed as a result of the Company filing with
the SEC a new shelf registration statement on Form S-3 (No. 333-274724) on September 27, 2023, which was declared effective
on September 29, 2023. An opinion of Venable LLP with respect to the validity of the Shares is filed herewith as Exhibit 5.1.
Entry Into New Equity Distribution Agreements
On October 20, 2023, the Company, Alpine
Income Property Manager, LLC, a Delaware limited liability company (the “Manager”), and Alpine Income Property OP, LP, a Delaware
limited partnership (the “Operating Partnership”), also entered into Equity Distribution Agreements and Master Forward Confirmations,
in substantially the forms attached as Exhibits 1.1 and 1.2 to this Current Report on Form 8-K, respectively, and incorporated herein
by reference (the “New Equity Distribution Agreements”), with each of Robert W. Baird & Co. Incorporated (“Baird”)
and Stifel, Nicolaus & Company, Incorporated (“Stifel”). Prior to entering into the New Equity Distribution
Agreements, on October 19, 2023, the Company terminated the Equity Distribution Agreements, dated October 21, 2022, by and among
the Company, the Manager and the Operating Partnership, on the one hand, and each of Baird and Stifel, on the other hand (the “Prior
Equity Distribution Agreements”).
The terms of the New Equity Distribution Agreements
are substantively identical to those of the Forward ATM Equity Distribution Agreements, as amended by the Amendments (each as defined
below). The New Equity Distribution Agreements provide that, in addition to the issuance and sale of Shares by us through Baird or Stifel
acting as a sales agent or directly to Baird or Stifel acting as principal for its own account at a price agreed upon at the time of sale,
we also may enter into forward sale agreements under separate master forward sale agreements and related supplemental confirmations between
us and Baird and Stifel, or their respective affiliates. We refer to these entities, when acting in this capacity, individually as a “forward
purchaser” and collectively as “forward purchasers,” and we refer to Baird and Stifel, when acting as agents for forward
purchasers, individually as a “forward seller” and collectively as “forward sellers.” In connection with each
particular forward sale agreement, the applicable forward purchaser will borrow from third parties and, through the applicable forward
seller, sell a number of shares of Common Stock equal to the number of shares of Common Stock underlying the particular forward sale agreement.
The Company will not initially receive any proceeds
from the sale of borrowed shares of Common Stock by a forward seller. The Company expects to fully physically settle any forward sale
agreement with the applicable forward purchaser on one or more dates specified by the Company on or prior to the maturity date of that
particular forward sale agreement, in which case the Company will expect to receive aggregate net cash proceeds at settlement equal to
the number of shares underlying the particular forward sale agreement multiplied by the applicable forward sale price. However, the Company
may also elect to cash settle or net share settle a particular forward sale agreement, in which case the Company may not receive any proceeds
from the issuance of shares, and the Company will instead receive or pay cash (in the case of cash settlement) or receive or deliver shares
of Common Stock (in the case of net share settlement).
Each sales agent will receive from the Company
a commission that will not exceed, but may be lower than, 2.0% of the gross sales price of all Shares sold through it as sales agent under
the applicable New Equity Distribution Agreement. In connection with each forward sale, the Company will pay the applicable forward seller,
in the form of a reduced initial forward sale price under the related forward sale agreement with the related forward purchaser, commissions
at a mutually agreed rate that shall not be more than 2.0% of the gross sales price of all borrowed Shares sold by it as a forward seller.
Amendments to Existing Equity Distribution Agreements
In connection with the New Equity Distribution
Agreements, on October 20, 2023, the Company, the Manager and the Operating Partnership entered into separate amendments (the
“Amendments”) to (i) the Equity Distribution Agreement, dated October 21, 2022, with Janney Montgomery Scott LLC
(the “Non-Forward ATM Equity Distribution Agreement”), and (ii) the Equity Distribution Agreements, dated October 21,
2022, with each of Raymond James & Associates, Inc., BMO Capital Markets Corp., B. Riley Securities, Inc., Jefferies
LLC, JonesTrading Institutional Services LLC, KeyBanc Capital Markets Inc., Regions Securities LLC, and Truist Securities, Inc. and
their applicable affiliates (collectively, the “Forward ATM Equity Distribution Agreements” and, together with the Non-Forward
ATM Equity Distribution Agreement, the “ATM Equity Distribution Agreements”).
The Amendments revise certain definitions in the
ATM Equity Distribution Agreements to reflect the termination of the Prior Equity Distribution Agreements and entry into the New Equity
Distribution Agreements. Sales of Shares, if any, pursuant to the New Equity Distribution Agreements and the ATM Equity Distribution Agreements,
as amended by the Amendments, may be made in transactions that are deemed to be “at the market” offerings, as defined in Rule 415
under the Securities Act of 1933, as amended, including, without limitation, sales made by means of ordinary brokers’ transactions
on the New York Stock Exchange, to or through a market maker at market prices prevailing at the time of sale, at prices related to prevailing
market prices or at negotiated prices based on prevailing market prices.
This Current Report on Form 8-K shall not
constitute an offer to sell or a solicitation of an offer to buy any securities, nor shall there be any sale of Shares in any state or
jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities
laws of any such state or other jurisdiction.
Forms of the Amendments are filed as Exhibits
1.3 and 1.4 to this Current Report on Form 8-K, and are incorporated herein by reference. The foregoing descriptions of the New Equity
Distribution Agreements, the Amendments and the transactions contemplated thereby are qualified in their entirety by reference to Exhibits
1.1, 1.2, 1.3 and 1.4.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits.
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
ALPINE INCOME PROPERTY TRUST, INC. |
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By: |
/s/ Matthew M. Partridge |
|
Name: |
Matthew M. Partridge |
|
Title: |
Senior Vice President, Chief Financial Officer and Treasurer |
Date: October 20, 2023
Exhibit 1.1
ALPINE INCOME PROPERTY TRUST, INC.
Shares of Common Stock
(Par Value $0.01 Per Share)
EQUITY DISTRIBUTION AGREEMENT
Dated: October 20,
2023
TABLE
OF CONTENTS
Page
SECTION 1 |
DESCRIPTION OF SECURITIES |
1 |
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SECTION 2 |
PLACEMENTS |
6 |
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SECTION 3 |
SALE OF SECURITIES |
8 |
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SECTION 4 |
SUSPENSION OF SALES |
9 |
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SECTION 5 |
REPRESENTATIONS AND WARRANTIES |
10 |
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SECTION 6 |
SALE AND DELIVERY; SETTLEMENT |
26 |
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SECTION 7 |
COVENANTS OF THE COMPANY AND THE OPERATING PARTNERSHIP |
30 |
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SECTION 8 |
PAYMENT OF EXPENSES |
36 |
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SECTION 9 |
CONDITIONS OF THE OBLIGATIONS OF THE AGENT, THE FORWARD SELLER AND THE FORWARD PURCHASER |
36 |
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SECTION 10 |
INDEMNIFICATION |
39 |
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SECTION 11 |
CONTRIBUTION |
41 |
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SECTION 12 |
REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY |
42 |
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SECTION 13 |
TERMINATION OF AGREEMENT |
42 |
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SECTION 14 |
NOTICES |
43 |
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SECTION 15 |
RECOGNITION OF THE U.S. SPECIAL RESOLUTION REGIMES |
44 |
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SECTION 16 |
PARTIES |
45 |
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SECTION 17 |
ADJUSTMENTS FOR SHARE SPLITS |
46 |
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SECTION 18 |
GOVERNING LAW AND TIME |
46 |
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SECTION 19 |
EFFECT OF HEADINGS |
46 |
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SECTION 20 |
RESEARCH ANALYST INDEPENDENCE |
46 |
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SECTION 21 |
PERMITTED FREE WRITING PROSPECTUSES |
46 |
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SECTION 22 |
ABSENCE OF FIDUCIARY RELATIONSHIP |
47 |
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SECTION 23 |
CONSENT TO JURISDICTION |
47 |
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SECTION 24 |
PARTIAL UNENFORCEABILITY |
48 |
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SECTION 25 |
WAIVER OF JURY TRIAL |
48 |
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SECTION 26 |
COUNTERPARTS |
48 |
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SECTION 27 |
AMENDMENTS AND WAIVERS |
48 |
EXHIBITS
Exhibit A |
– |
Form of Placement Notice |
Exhibit B |
– |
Authorized Individuals for Placement Notices and Acceptances |
Exhibit C |
– |
Compensation |
Exhibit D |
– |
Officers’ Certificate of the Company and the Adviser |
Exhibit E |
– |
Form of Corporate Opinion of Vinson & Elkins L.L.P. |
Exhibit F |
– |
Form of Tax Opinion of Vinson & Elkins L.L.P. |
Exhibit G |
– |
Form of Opinion of Venable LLP |
Exhibit H |
– |
Permitted Free Writing Prospectus |
Alpine Income Property Trust, Inc.
(a Maryland corporation)
Shares of Common Stock
(Par Value $.01 Per Share)
EQUITY DISTRIBUTION AGREEMENT
October 20, 2023
[ ]
[ ]
[ ]
Ladies and Gentlemen:
Alpine Income Property Trust, Inc.,
a Maryland corporation (the “Company”), Alpine Income Property Manager, LLC, a Delaware limited liability company (the
“Adviser”), and Alpine Income Property OP, LP, a Delaware limited partnership and the Company’s operating partnership
(the “Operating Partnership”), each confirms its agreement (this “Agreement”) with [ ] (in its capacity
as purchaser under any Forward Contract (as defined below), the “Forward Purchaser”) and [ ] (in its capacity as agent
for the Company and/or principal in connection with the offering and sale of any Issuance Securities (as defined below) hereunder, the
“Manager”), and in its capacity as agent for the Forward Purchaser in connection with the offering and sale of any
Forward Hedge Securities (as defined below) hereunder, the “Forward Seller”), 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, in the manner contemplated by this Agreement, shares (the “Securities”)
of the Company’s common stock, par value $0.01 per share (the “Common Stock”), having an aggregate offering price
of up to $150,000,000 (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 or the Forward Seller, as applicable,
shall have no obligation in connection with such compliance. The issuance and sale of the Securities through the Manager or the Forward
Seller, as applicable, 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. 333-274724)
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 or the Forward Seller,
as applicable, for use by the Manager or the Forward Seller, as applicable, 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 (“EDGAR”);
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 EDGAR; 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 or the Forward Seller 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:
“Actual Sold Forward
Amount” means, for any Forward Hedge Selling Period for any Forward, the number of Forward Hedge Securities that the Forward
Seller has sold during such Forward Hedge Selling Period.
“Aggregate Forward
Hedge Price” means, with respect to a period, the product of the Actual Sold Forward Amount during such period and the Forward
Hedge Price during such period.
“Aggregate Sales
Price” means, with respect to a period, the sum of the Sales Prices for all Issuance Securities or Forward Hedge Securities,
as applicable, sold during such period.
“Applicable Time”
means the time of each sale of any Securities pursuant to this Agreement.
“Capped Number”
with respect to any Forward Contract has the meaning set forth in such Forward Contract.
“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.
“Forward”
means the transaction resulting from each Placement Notice (as amended by the corresponding Acceptance, if applicable) specifying that
it relates to a “Forward” and requiring the Forward Seller to use commercially reasonable efforts to sell, as specified in
such Placement Notice and subject to the terms and conditions of this Agreement and the applicable Forward Contract, the Forward Hedge
Securities.
“Forward Contract”
means, for each Forward, the contract evidencing such Forward between the Company and the Forward Purchaser, which shall be comprised
of the Master Forward Confirmation and the related “Supplemental Confirmation” (as defined in the Master Forward Confirmation)
for such Forward.
“Forward Hedge Amount”
means, for any Forward, the amount specified as such in the Placement Notice for such Forward (as amended by the corresponding Acceptance,
if applicable), which amount shall be the target Aggregate Sales Price of the Forward Hedge Securities to be sold by the Forward Seller
in respect of such Forward, subject to the terms and conditions of this Agreement.
“Forward Hedge Price”
means, for any Forward Contract, the product of (x) an amount equal to one (1) minus the Forward Hedge Selling Commission Rate
for such Forward Contract; and (y) the Volume-Weighted Hedge Price.
“Forward Hedge Securities”
means all Common Stock borrowed by the Forward Purchaser and offered and sold by the Forward Seller in connection with any Forward that
has occurred or may occur in accordance with the terms and conditions of this Agreement. Where the context requires, the term “Forward
Hedge Securities” as used herein shall include the definition of the same under the Alternative Distribution Agreements.
“Forward Hedge Selling
Commission” means, for any Forward Contract, the product of (x) the Forward Hedge Selling Commission Rate for such Forward
Contract and (y) the Volume-Weighted Hedge Price.
“Forward Hedge Selling
Commission Rate” means, for any Forward Contract, a rate mutually agreed to between the Company and the Forward Seller and recorded
in the applicable Placement Notice (as amended by the corresponding Acceptance, if applicable), not to exceed 2%.
“Forward Hedge
Selling Period” means, subject to Section 2(c) hereof, 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) specifying that it relates to a “Forward”) 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 and ending on the last such Trading Day or such earlier date on which the Forward Seller shall have completed the sale of Forward
Hedge Securities in connection with the applicable Forward; provided that if, prior to the scheduled end of any Forward Hedge Selling
Period (x) any event occurs that would permit the Forward Purchaser to designate a “Scheduled Trading Day” as an “Early
Valuation Date” (as each such term is defined in the Master Forward Confirmation) under, and pursuant to the provisions opposite
the caption “Early Valuation” in Section 2 of the Master Forward Confirmation or (y) a “Bankruptcy Termination
Event” (as such term is defined in the Master Forward Confirmation) occurs, then the Forward Hedge Selling Period shall, upon the
Forward Seller becoming aware of such occurrence, immediately terminate as of the first such occurrence. Any Forward Hedge Selling Period
then in effect shall immediately terminate upon the termination of this Agreement pursuant to Section 9 or Section 13 hereof
and as set forth in Sections 2(b) and 4 hereof.
“Forward Purchaser”
has the meaning set forth in the introductory paragraph of this Agreement. If a Forward Purchaser has not been identified in the introductory
paragraph of this Agreement, the Company agrees that all provisions of this Agreement related to the Forward Purchaser are not applicable
hereunder.
“Forward Seller”
has the meaning set forth in the introductory paragraph of this Agreement. If a Forward Seller has not been identified in the introductory
paragraph of this Agreement, the Company agrees that all provisions of this Agreement related to the Forward Seller are not applicable
hereunder.
“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 does not involve a Forward and that specifies
that it relates to an “Issuance” and requires the Manager to use commercially reasonable efforts to sell the Issuance Securities
as specified in such Placement Notice, subject to the terms and conditions of this Agreement.
“Issuance 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) specifying that it relates
to an “Issuance”) 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.
“Issuance 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 “Issuance Securities” as used herein, shall include
the definition of the same under the Alternative Distribution Agreements.
“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.
“Manager”
has the meaning set forth in the introductory paragraph of this Agreement.
“Master Forward Confirmation”
means the Master Confirmation for Issuer Share Forward Sale Transactions, dated as of the date hereof, by and among the Company, the Operating
Partnership, the Adviser and the Forward Purchaser, including all provisions incorporated by reference therein.
“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 Forward or each Issuance hereunder, the actual sale execution price of each Forward Hedge Security or Issuance Security,
as the case may be, sold by the Manager or the Forward Seller 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.
“Sarbanes-Oxley Act”
means the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated thereunder or implementing the provisions thereof.
“Securities”
means Issuance Securities and Forward Hedge Securities, as applicable. Where the context requires, the term “Securities” as
used herein shall include the definition of the same under the Alternative Distribution Agreements.
“Selling Period”
means any Forward Hedge Selling Period or any Issuance Selling Period.
“Settlement Date”
means, unless the Company and the Manager shall otherwise agree, any Forward Hedge Settlement Date or any Issuance Settlement Date, as
applicable.
“Trading Day”
means any day which is a trading day on the NYSE.
“Unwind Date”
shall have the meaning set forth in the Master Forward Confirmation.
“Volume-Weighted
Hedge Price” has the meaning set forth in the Master Forward Confirmation; provided that, for purposes of determining the Aggregate
Forward Hedge Price payable to the Forward Purchaser in respect of a Trading Day on which the Forward Seller has made sales of Forward
Hedge Securities hereunder pursuant to Sections 3(b) and 6(e), the Volume-Weighted Hedge Price shall be determined solely with respect
to the Forward Hedge Securities sold by the Forward Seller on such Trading Day.
The Company will contribute
the Net Proceeds (as defined in Section 6(b)) from the sale of the Securities and any proceeds received under the Forward Contract
from time to time pursuant to this Agreement to the Operating Partnership, and in exchange therefor, at each Issuance Settlement Date
(as defined in Section 6(b)) and on each day the Company is required to deliver Common Stock under any Forward Contract, 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 Issuance Securities and agrees to use commercially reasonable efforts to sell the Issuance Securities
offered by the Company upon the terms and subject to the conditions contained herein. The Forward Seller agrees with the Company and the
Forward Purchaser to use commercially reasonable efforts to sell the Forward Hedge Securities to be borrowed by the Forward Purchaser
upon the terms and subject to the conditions contained herein. Notwithstanding any other provision of this Agreement, if a Forward Seller
and Forward Purchaser have not been identified in the introductory paragraph of this Agreement and have not executed this Agreement, the
Company agrees that all provisions of this Agreement related to the Forward Seller, the Forward Purchaser and Forwards are not applicable
hereunder and no sales of Forward Hedge Securities shall take place pursuant to this Agreement.
The Company, the Adviser
and the Operating Partnership have also entered into separate equity distribution agreements (collectively, as each may be amended
from time to time, the “Alternative Distribution Agreements”), dated as of October 21, 2022, as amended on October 20, 2023, with Raymond James & Associates, Inc., B. Riley Securities, Inc., BMO
Capital Markets Corp., Janney Montgomery Scott LLC, Jefferies LLC, JonesTrading Institutional Services LLC, KeyBanc Capital Markets Inc.,
Regions Securities LLC and Truist Securities, Inc., and dated as of October 20, 2023, with [ ]
(and, as applicable, their respective affiliates) (each, in its capacity as agent and/or principal, forward seller and forward
purchaser thereunder, an “Alternative Manager”), for the issuance (in the case of the Issuance Securities) or
borrowing (in the case of the Forward Hedge Securities) 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 (i) the conditions set forth in Section 9 hereof have been satisfied and (ii) with respect to
any Forward, no event described in clause (x) or clause (y) of the proviso contained in the definition of Forward Hedge Selling
Period shall have occurred, the Company wishes to issue (in the case of an Issuance) 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 (in the case of an Issuance)
or the Forward Seller and the Forward Purchaser (in the case of a Forward) containing the parameters in accordance with which it desires
the Securities to be sold, which shall at a minimum specify whether it relates to an “Issuance” or a “Forward”
and include the number of Securities to be issued (in the case of an Issuance) and/or sold (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,
any minimum price below which sales may not be made or a formula pursuant to which such minimum price shall be determined and, as applicable,
certain specified terms of the Forward (a “Placement Notice”), a form of which containing such minimum sales parameters
necessary with respect to Issuances and Forwards 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 or the Forward Seller and the Forward Purchaser,
as applicable, set forth on Exhibit B, as such Exhibit B may be amended from time to time.
(b) If
the Manager or the Forward Seller and the Forward Purchaser, as applicable, wish to accept such proposed terms included in the Placement
Notice (which they may decline to do for any reason in their sole discretion) or, following discussion with the Company, wish to accept
amended terms, the Manager or the Forward Seller and the Forward Purchaser, as applicable, 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 or the Forward Seller
and the Forward Purchaser, as applicable, 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 or the Forward Seller and the Forward Purchaser, as applicable,
set forth on Exhibit B) setting forth the terms that the Manager or the Forward Seller and the Forward Purchaser, as applicable,
are 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 or the Forward Seller and the Forward Purchaser, as applicable, until the
Company delivers to the Manager or the Forward Seller and the Forward Purchaser, as applicable, 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 or the Forward Seller and the Forward Purchaser,
as applicable, 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 or the Forward Seller’s and the Forward Purchaser’s, as applicable,
acceptance of the terms of the Placement Notice or upon receipt by the Manager or the Forward Seller and the Forward Purchaser, as applicable,
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 (including, in the case of
any Forward Hedge Securities, the obligation to enter into the resulting Forward Contract). 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. It is expressly acknowledged and agreed that the Company, the Forward Seller and the Forward Purchaser will
have no obligation whatsoever with respect to a Placement or any Placement Securities unless and until the Company delivers a Placement
Notice to the Forward Seller and the Forward Purchaser and either (i) the Forward Seller and the Forward Purchaser accept 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), this Agreement and the Master Forward Confirmation. 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; no Placement Notice may be delivered
hereunder or under any Alternative Distribution Agreement if any Selling Period specified therein may overlap in whole or in part with
any Unwind Date under any Forward Contract entered into between the Company and the Forward Purchaser or any Alternative Manager; and
no Placement Notice specifying that it relates to a “Forward” may be delivered if such Placement Notice, together with all
prior Placement Notices (as amended by the corresponding Acceptance, if applicable) delivered by the Company relating to a “Forward”
hereunder and under any Alternative Distribution Agreements, would result in the sum of the number of shares of Common Stock issued under
all Forward Contracts (whether with a Forward Purchaser or any Alternative Manager) that have settled, plus the Capped Numbers under all
Forward Contracts then outstanding or to be entered into between the Company and the Forward Purchaser and any Forward Contracts then
outstanding between the Company and any Alternative Manager exceeding 19.99% of the number of shares of Common Stock outstanding as of
the date of this Agreement.
(d) Notwithstanding
any other provision of this Agreement, any notice required to be delivered by the Company or by the Manager (in the case of an Issuance)
or the Forward Seller and the Forward Purchaser (in the case of a Forward) 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 (in the case of an Issuance)
or the Forward Seller and the Forward Purchaser (in the case of a Forward) 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 (in the case of an Issuance)
or the Forward Seller and the Forward Purchaser (in the case of a Forward) 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) specifying that it relates to an “Issuance,” the Manager will use its commercially reasonable efforts consistent
with its normal trading and sales practices to sell the Issuance 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 Issuance Securities hereunder setting forth the number of Issuance Securities sold on such
day, the corresponding Aggregate Sales Price, 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 Issuance 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 Issuance Securities
shall be as separately agreed among the parties hereto at the time of any such sales.
(b) Subject
to the provisions of Sections 2(b), 6(d) and the Master Forward Confirmation, upon the delivery of a Placement Notice (as amended
by the corresponding Acceptance, if applicable) specifying that it relates to a “Forward,” the Forward Purchaser will use
commercially reasonable efforts to borrow, offer and sell Forward Hedge Securities through the Forward Seller to hedge the Forward, and
the Forward Seller will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Forward
Hedge Securities at market prevailing prices up to the Forward Hedge Amount specified in such Placement Notice (as amended by the corresponding
Acceptance, if applicable), and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance,
if applicable). The Forward Seller will provide written confirmation by email to all of the individuals from the Company set forth on
Exhibit B (as such Exhibit B may be amended from time to time) and to the Forward Purchaser no later than the
opening of the Trading Day immediately following each Trading Day on which it has made sales of Forward Hedge Securities hereunder setting
forth the number of Forward Hedge Securities sold on such day, the Forward Hedge Selling Commission in respect of such Forward Hedge Securities,
the corresponding Aggregate Sales Price and the Aggregate Forward Hedge Price payable to the Forward Purchaser in respect thereof.
(c) No
later than the opening of the Trading Day immediately following the last Trading Day of each Forward Hedge Selling Period (or, if earlier,
no later than the opening of the Trading Day immediately following the date on which any Forward Hedge Selling Period is suspended or
terminated pursuant to Section 4 or the Forward Contract or this Agreement is terminated pursuant to Section 9 or Section 13
hereof), the Forward Purchaser shall execute and deliver to the Company a “Supplemental Confirmation” in respect of the Forward
for such Forward Hedge Selling Period, which “Supplemental Confirmation” shall set forth the “Trade Date” for
such Forward (which shall, subject to the terms of the Master Forward Confirmation, be the last Trading Day of such Forward Hedge Selling
Period), the “Effective Date” for such Forward (which shall, subject to the terms of the Master Forward Confirmation, be the
date one Settlement Cycle (as such term is defined in the Master Forward Confirmation) immediately following the last Trading Day of such
Forward Hedge Selling Period), the initial “Number of Shares” for such Forward (which shall be the Actual Sold Forward Amount
for such Forward Hedge Selling Period), the “Maturity Date” for such Forward (which shall, subject to the terms of the Master
Forward Confirmation, be the date that follows the last Trading Day of such Forward Hedge Selling Period by the number of days or months
set forth opposite the caption “Term” in the Placement Notice (as amended by the corresponding Acceptance, if applicable)
for such Forward, which number of days or months shall in no event be less than three months nor more than two years), the “Initial
Forward Price” for such Forward, the “Spread” for such Forward (as set forth in the related Placement Notice (as amended
by the corresponding Acceptance, if applicable)), the “Volume-Weighted Hedge Price” for such Forward, the “Threshold
Price” for such Forward, the “Initial Stock Loan Rate” for such Forward (as set forth in the related Placement Notice
(as amended by the corresponding Acceptance, if applicable)), the “Maximum Stock Loan Rate” for such Forward (as set forth
in the related Placement Notice (as amended by the corresponding Acceptance, if applicable)), the “Forward Price Reduction Dates”
for such Forward (which shall be each of the dates set forth below the caption “Forward Price Reduction Dates” in the Placement
Notice (as amended by the corresponding Acceptance, if applicable) for such Forward) and the “Forward Price Reduction Amounts”
corresponding to such Forward Price Reduction Dates (which shall be each amount set forth opposite each “Forward Price Reduction
Date” and below the caption “Forward Price Reduction Amounts” in the Placement Notice (as amended by the corresponding
Acceptance, if applicable) for such Forward) and the “Regular Dividend Amounts” for such Forward (which shall be each of the
amount(s) set forth below the caption “Regular Dividend Amounts” in the Placement Notice (as amended by the corresponding
Acceptance, if applicable) for such Forward).
(d) Notwithstanding
anything herein to the contrary, the Forward Purchaser’s obligation to use its commercially reasonable efforts to borrow all or
any portion of the Forward Hedge Securities (and the Forward Seller’s obligation to use its commercially reasonable efforts to sell
such portion of the Forward Hedge Securities) for any Forward hereunder shall be subject in all respects to the last paragraph of Section 3
of the Master Forward Confirmation.
(e) 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, the Manager or
the Forward Seller or the Forward Purchaser may, upon notice to the other parties 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 any 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 (including, in the case of any Forward Hedge Securities,
the obligation to enter into the resulting Forward Contract). The Company agrees that no such notice under this Section 4 shall be
effective against the Manager, the Forward Seller or the Forward Purchaser unless it is made to one of the individuals named on Exhibit B
hereto, as such Exhibit may be amended from time to time. Each of the Manager, the Forward Seller and the Forward Purchaser 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, the Forward Seller or the Forward
Purchaser 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
and warrant to the Manager as of the date hereof and as of each Representation Date (as defined below) on which certificates are required
to be delivered pursuant to Section 7(o) hereof, as of each Applicable Time and as of each Settlement Date, as follows:
(1) The
Company satisfies all of the requirements of the Securities Act for use of Form S-3 for the offering of Securities contemplated hereby
and has prepared and filed with the Commission the Registration Statement on Form S-3 (File No. 333-274724). The Registration
Statement has been declared effective by the Commission. No stop order suspending the effectiveness of the Registration Statement has
been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act has been initiated
against the Company or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission.
(2) At
the time of filing of the Registration Statement, at the time of the most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant
to Sections 13 or 15(d) of the Exchange Act or form of prospectus), at the earliest time thereafter that the Company or another offering
participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Common Stock, on the
date hereof and on each Representation Date, as of each Applicable Time and as of each Settlement Date, the Company was not, is not and
will not be (as the case may be) an “ineligible issuer” (as defined in Rule 405 under the Securities Act).
(3) The
Registration Statement and the Prospectus, when filed and as of their respective dates, complied in all material respects with the Securities
Act and, if filed by electronic transmission pursuant to EDGAR (except as may be permitted by Regulation S-T under the Securities Act),
was identical to the copies thereof delivered to the Manager and Forward Seller for use in connection with the offer and sale of the Securities.
The Registration Statement and any post-effective amendment thereto, at the time it became effective and each deemed effective date with
respect to the Manager and Forward Seller pursuant to Rule 430B(f)(2) under the Securities Act and at each Settlement Date,
complied and will comply in all material respects with the Securities Act and did not and will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided,
that no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon
and in conformity with written information furnished to the Company by or on behalf of the Manager or the Forward Seller specifically
for inclusion therein.
(4) Any
documents incorporated by reference into the Registration Statement and the Prospectus pursuant to Item 12 of Form S-3 (the “Incorporated
Documents”) heretofore filed, when they were filed (or, if any amendment with respect to any such document was filed, when such
amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations
thereunder, and any further Incorporated Documents so filed will, when they are filed, conform in all material respects with the requirements
of the Exchange Act and the rules and regulations thereunder; no such Incorporated Document when it was filed (or, if an amendment
with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
and no such further Incorporated Document, when it is filed, will contain an untrue statement of a material fact or will omit to state
a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(5) The
Prospectus does not and will not, as of its date and on each Representation Date, as of each Applicable Time and as of each Settlement
Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading; provided that no representation or warranty is made as to information
contained in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Company by or
on behalf of the Manager or the Forward Seller specifically for inclusion therein.
(6) Each
Issuer Free Writing Prospectus (including, without limitation, any “road show” (as defined in Rule 433 under the Securities
Act) that is a free writing prospectus under Rule 433 under the Securities Act) did not contain an untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made,
not misleading.
(7) Each
Issuer Free Writing Prospectus conformed or will conform in all material respects to the requirements of the Securities Act on the date
of first use, and the Company has complied with all of its prospectus delivery and any filing requirements applicable to such Issuer Free
Writing Prospectus pursuant to the Securities Act. The Company has not made any offer relating to the Securities that would constitute
an Issuer Free Writing Prospectus without the prior written consent of the Manager. The Company has retained in accordance with the Securities
Act all Issuer Free Writing Prospectuses that were not required to be filed pursuant to the Securities Act.
(8) The
Company has not distributed and, prior to the later to occur of each Settlement Date and completion of the distribution of the Securities,
will not distribute any offering material in connection with the offering or sale of the Securities other than the Registration Statement
and the Prospectus and any Issuer Free Writing Prospectus to which the Manager has consented, which consent will not be unreasonably withheld
or delayed, or that is required by applicable law or the listing maintenance requirements of the NYSE.
(9) A
number of shares of Common Stock equal to the Capped Number (as defined in the Forward Contract) have been duly authorized and reserved
for issuance upon settlement of the Forward Contract and, when issued and delivered by the Company to the Forward Purchaser pursuant thereto,
against payment of any consideration required to be paid by the Forward Purchaser pursuant to the terms of the Forward Contract, the shares
of Common Stock so issued and delivered will be validly issued, fully paid and non-assessable, free and clear of any pledge, lien, encumbrance,
security interest or other claim, and the issuance of such shares of Common Stock will not be subject to any preemptive or other similar
rights arising by operation of law, under the articles of incorporation, bylaws or other organizational documents of the Company or any
one of its subsidiaries or under any agreement to which the Company or any one of its subsidiaries is a party or otherwise, except as
set forth in the Registration Statement and the Prospectus.
(10) From
the time of the filing of the Registration Statement with the Commission through the date of this Agreement, the Company has been and
is an “emerging growth company” as defined in Section 2(a) of the Securities Act.
(11) The
Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland and
has the requisite corporate power and authority to own, lease and operate its properties (the “Company Properties”)
and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement thereto) and
to enter into and perform its obligations under this Agreement, and, as the sole member and manager of the General Partner (as defined
below), to cause the Operating Partnership to enter into and perform the Operating Partnership’s obligations under this Agreement.
The Company is duly qualified as a foreign corporation to transact business and is in good standing in each other jurisdiction in which
such qualification is required, except where the failure to so qualify or to be in good standing would not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the condition (financial or otherwise), business, properties, assets, net
worth, results of operations or prospects of the Company and the Operating Partnership and their subsidiaries, taken as a whole (a “Material
Adverse Effect”).
(12) The
Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the laws of the State
of Delaware and has the requisite limited partnership power and authority to own, lease and operate its properties (the “OP Properties”)
and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement thereto) and
to enter into and perform its obligations under this Agreement. The Operating Partnership is duly qualified as a foreign limited partnership
to transact business and is in good standing in each other jurisdiction in which such qualification is required, except where the failure
to so qualify or to be in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect. Alpine Income Property GP, LLC, a Delaware limited liability company (the “General Partner”), is the sole general
partner of the Operating Partnership. The aggregate percentage interests of the Company and the other limited partners in the Operating
Partnership is as set forth in the Prospectus. The Amended and Restated Agreement of Limited Partnership of the Operating Partnership
has been duly authorized, executed and delivered by the General Partner and is a legally valid and binding agreement of the General Partner,
enforceable against the General Partner in accordance with its terms, except to the extent enforceability may be limited by (i) the
application of bankruptcy, reorganization, insolvency and other laws affecting creditors’ rights generally and (ii) equitable
principles being applied at the discretion of a court before which any proceeding may be brought, except as rights to indemnity and contribution
thereunder may be limited by federal or state securities laws.
(13) Each
subsidiary of the Company and the Operating Partnership has been duly incorporated or formed and is validly existing in good standing
under the laws of the jurisdiction of its incorporation or formation, and each such subsidiary has the requisite corporate or similar
power and authority to own, lease and operate its properties (collectively, with the Company Properties and the OP Properties, the “Properties”)
and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement thereto) and
is duly qualified to transact business and is in good standing in each other jurisdiction in which such qualification is required, except
where the failure to so qualify or to be in good standing would not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect. Except as otherwise disclosed in the Registration Statement and the Prospectus, all of the outstanding shares
of capital stock or other ownership interests of each subsidiary of the Company and the Operating Partnership have been duly authorized
and validly issued, are (as applicable) fully paid and nonassessable and are owned by the Company and the Operating Partnership, directly
or indirectly through subsidiaries, free and clear of any security interests, liens, encumbrances, equities or claims. None of the outstanding
shares of capital stock or other ownership interests of any subsidiary of the Company and the Operating Partnership was issued in violation
of the preemptive or similar rights of the securityholder of such subsidiary.
(14) The
authorized capitalization of the Company is as set forth in the Registration Statement and the Prospectus. All the outstanding shares
of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable. None of the outstanding
shares of capital stock of the Company was issued in violation of the preemptive or similar rights of any securityholder of the Company.
Except as described in the Registration Statement and the Prospectus, there are no outstanding options, warrants or similar rights to
subscribe for, or contractual obligations to issue, sell, transfer or acquire, any shares of capital stock of the Company or any securities
convertible into or exercisable or exchangeable for any shares of capital stock of the Company. The Securities to be issued and sold by
the Company pursuant to this Agreement have been duly authorized and, when issued and delivered against full payment therefor in accordance
with the terms hereof, will be validly issued, fully paid and nonassessable and will not be issued in violation of the preemptive or similar
rights of any securityholder of the Company.
(15) All
of the issued and outstanding OP Units have been duly authorized for issuance by the Operating Partnership and validly issued. None of
the issued and outstanding OP Units have been issued in violation of the preemptive or other similar rights of any securityholder of the
Operating Partnership. All of the issued and outstanding OP Units were issued in transactions exempt from the registration requirements
of the Securities Act and applicable state securities laws. Except as described in the Registration Statement and the Prospectus, there
are no outstanding securities convertible into or exercisable or exchangeable for any OP Units and there are no outstanding options, rights
(preemptive or otherwise) or warrants to purchase or subscribe for OP Units or any other securities of the Operating Partnership.
(16) Except
as disclosed in the Registration Statement and the Prospectus, the Company has no outstanding stock options or other equity-based awards
of or to purchase shares of Common Stock pursuant to an equity-based compensation plan or otherwise.
(17) This
Agreement has been duly authorized, executed and delivered by each of the Company and the Operating Partnership.
(18) This
Agreement constitutes a valid and binding agreement of the Company and the Operating Partnership, enforceable against the Company and
the Operating Partnership in accordance with its terms, except as may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or similar laws affecting creditors’ rights generally or by general principles of equity, and except to the extent that
any indemnification and contribution provisions hereof may be limited by federal or state securities laws or public policy considerations
in respect thereof.
(19) The
Management Agreement, dated November 26, 2019, among the Company, the Operating Partnership and the Adviser (the “Management
Agreement”), remains in full force and effect. The Management Agreement has been duly authorized, executed and delivered by
each of the Company and the Operating Partnership and constitutes a valid and legally binding agreement of the Company and the Operating
Partnership, enforceable against the Company and the Operating Partnership in accordance with its terms, except to the extent enforceability
may be limited by (i) the application of bankruptcy, reorganization, insolvency and other laws affecting creditors’ rights
generally and (ii) equitable principles being applied at the discretion of a court before which any proceeding may be brought, except
as rights to indemnity and contribution thereunder may be limited by federal or state securities laws.
(20) There
are no legal or governmental proceedings pending or, to the knowledge of the Company and the Operating Partnership, threatened, against
the Company, the Operating Partnership or any of their subsidiaries or to which the Company, the Operating Partnership or any of their
subsidiaries or any of the Properties are subject, that are required to be described in the Registration Statement and the Prospectus
(or any amendment or supplement thereto) but are not described as required. Except as described in the Registration Statement and the
Prospectus, there are no actions, suits, inquiries, proceedings or investigations by or before any court or governmental or other regulatory
or administrative agency or commission pending or, to the knowledge of the Company and the Operating Partnership, threatened against or
involving the Company, the Operating Partnership or any of their subsidiaries, which would, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect or prevent or adversely affect the transactions contemplated by this Agreement or the Forward
Contract, nor, to the knowledge of the Company and the Operating Partnership, is there any basis for any such action, suit, inquiry, proceeding
or investigation. There are no agreements, contracts, indentures, leases or other instruments that are required to be described in the
Registration Statement and the Prospectus (or any amendment or supplement thereto) or to be filed as an exhibit to the Registration Statement
that are not so described or filed. Neither the Company nor the Operating Partnership has received notice or been made aware that any
other party is in breach of or default to the Company and the Operating Partnership or the applicable subsidiary under any of such contracts.
(21) None
of the Company, the Operating Partnership or any of their subsidiaries: is (i) in violation of (A) its articles of incorporation,
bylaws, certificate of formation, limited liability company agreement, certificate of limited partnership, partnership agreement or other
organizational document, (B) any federal, state or foreign law, ordinance, administrative or governmental rule or regulation
applicable to the Company, the Operating Partnership or any of their subsidiaries, or (C) any decree of any federal, state or foreign
court or governmental agency or body having jurisdiction over the Company, the Operating Partnership or any of their subsidiaries, except,
in the case of (B) and (C), for violations that would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect; or (ii) in default in the performance of any obligation, agreement or condition contained in (A) any bond, debenture,
note or any other evidence of indebtedness or (B) any agreement, contract, indenture, lease or other instrument (each of (A) and
(B), an “Existing Instrument”) to which the Company, the Operating Partnership or any of their subsidiaries is a party
or by which any of their properties may be bound, except for such defaults which would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect; and there does not exist any state of facts that constitutes an event of default on the
part of the Company, the Operating Partnership or any of their subsidiaries as defined in such documents or that, with notice or lapse
of time or both, would constitute such an event of default.
(22) Except
as otherwise disclosed in the Registration Statement or the Prospectus, (i) the Company and the Operating Partnership and their subsidiaries
and the Properties have been and are in compliance with, and none of the Company and the Operating Partnership or their subsidiaries has
any liability under, applicable Environmental Laws (as hereinafter defined), except as would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect, (ii) none of the Company and the Operating Partnership, their subsidiaries, or, to
the knowledge of the Company and the Operating Partnership, the prior owners or occupants of the Properties has at any time released (as
such term is defined in Section 101(22) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended,
42 U.S.C. §§ 9601-9675 (“CERCLA”)) or otherwise disposed of Hazardous Materials (as hereinafter defined)
on, to or from the Properties, except for such releases or dispositions which would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect, (iii) the Company and the Operating Partnership do not intend to use the Properties
other than in compliance with applicable Environmental Laws, except as would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect, (iv) neither the Company nor the Operating Partnership knows of any seepage, leak, discharge,
release, emission, spill, or dumping of Hazardous Materials into waters (including, but not limited to, groundwater and surface water)
on or beneath the Properties, or onto lands owned by the Company and the Operating Partnership or their subsidiaries from which Hazardous
Materials might seep, flow or drain into such waters, except as would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect, (v) none of the Company and the Operating Partnership or their subsidiaries has received any notice
of, and the Company and the Operating Partnership have no knowledge of any occurrence or circumstance which, with notice or passage of
time or both, would give rise to a claim under or pursuant to any Environmental Law with respect to the Properties or arising out of the
conduct of the Company and the Operating Partnership or their subsidiaries, except for such claims which would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect and which would not require disclosure pursuant to Environmental
Laws and (vi) the Properties are not included or, to the knowledge of the Company and the Operating Partnership, proposed for inclusion
on the National Priorities List issued pursuant to CERCLA by the United States Environmental Protection Agency (the “EPA”)
or, to the knowledge of the Company and the Operating Partnership proposed for inclusion on any similar list or inventory issued pursuant
to any other applicable Environmental Law or issued by any other governmental authority. Except as described in the Registration Statement
and the Prospectus, to the knowledge of the Company and the Operating Partnership, there have been no and are no (i) aboveground
or underground storage tanks, (ii) polychlorinated biphenyls (“PCBs”) or PCB-containing equipment, (iii) asbestos
or asbestos containing materials, (iv) lead based paints, (v) dry-cleaning facilities, or (vi) wet lands, in each case
in, on, or under any of the Properties the existence of which has had, or is reasonably expected to have, a Material Adverse Effect.
As used herein,
“Hazardous Material” shall include, without limitation, any flammable explosives, radioactive materials, hazardous
materials, hazardous wastes, toxic substances, including asbestos or any hazardous material as defined by any applicable federal, state
or local environmental law, ordinance, statute, rule or regulation including, without limitation, CERCLA, the Hazardous Materials
Transportation Act, as amended, 49 U.S.C. §§ 5101-5128, the Solid Waste Disposal Act, as amended, 42 U.S.C. §§ 6901-6992k,
the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. §§ 11001-11050, the Toxic Substances Control Act,
15 U.S.C. §§ 2601-2692, the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 136-136y, the Clean Air
Act, 42 U.S.C. §§ 7401-7671q, the Clean Water Act (Federal Water Pollution Control Act), 33 U.S.C. §§ 1251-1387, the
Safe Drinking Water Act, 42 U.S.C. §§ 300f-300j-26, and the Occupational Safety and Health Act, 29 U.S.C. §§ 651-678,
as any of the above statutes may be amended from time to time, and in the regulations promulgated pursuant to any of the foregoing (including
environmental statutes not specifically defined herein) (individually, an “Environmental Law” and collectively, “Environmental
Laws”) or by any federal, state or local governmental authority having or claiming jurisdiction over the Properties and other
assets described in the Registration Statement and the Prospectus.
(23) Except
as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, and except as described
in the Registration Statement or the Prospectus, to the knowledge of the Company and the Operating Partnership, (i) there has been
no security breach or other security compromise of or relating to the Company’s and the Operating Partnership’s information
technology and computer systems, networks, hardware, software, data, trade secrets, or equipment (collectively, “IT Systems”);
(ii) the Company’s and the Operating Partnership’s IT Systems are adequate in all material respects for, and operate
and perform as required in connection with, the operation of the business of the Company and the Operating Partnership as currently conducted
and are free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants; and (iii) the
Company and the Operating Partnership are presently in compliance with all applicable laws, regulations, contractual obligations and internal
policies relating to data privacy and security or personally identifiable information.
(24) Neither
the issuance and sale of the Securities by the Company nor the execution, delivery and performance of this Agreement and the Forward Contract
by the Company and the Operating Partnership (i) 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 have
been already obtained or may be required under the Securities Act, the Exchange Act, the rules of the NYSE, state securities or Blue
Sky laws and the rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”), (ii) conflicts
with or will conflict with or constitutes or will constitute a breach of, or a default under, the organizational documents of the Company,
the Operating Partnership or any of their subsidiaries, (iii) constitutes or will constitute a breach of, or a default under, any
Existing Instrument to which the Company, the Operating Partnership or any of their subsidiaries is a party or by which any of their properties
may be bound, (iv) violates any statute, law, regulation, ruling, filing, judgment, injunction, order or decree applicable to the
Company, the Operating Partnership or any of their subsidiaries or any of their properties, or (v) results in a breach of, or default
or Debt Repayment Triggering Event (as defined below) under, or results 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, or requires the consent
of any other party to, any Existing Instrument, except, with respect to clauses (ii), (iii), (iv) and (v), such conflicts, breaches,
defaults, violations, liens, charges or encumbrances that would not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect. As used herein, a “Debt Repayment Triggering Event” means any event or condition that gives,
or with the giving of notice or lapse of time would give, the holder of any note, debenture or other evidence of indebtedness (or any
person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company, the Operating Partnership or any of their subsidiaries.
(25) Grant
Thornton LLP, who has certified certain financial statements and supporting schedules incorporated by reference in the Registration Statement
and the Prospectus, is an independent registered public accounting firm as required by the Securities Act and the applicable rules and
regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) (the “PCAOB”).
(26) The
financial statements included in the Registration Statement and the Prospectus, together with the related schedules and notes, present
fairly in all material respects the financial position of the Company’s accounting predecessor (the “Predecessor”)
and the Company at the dates indicated and the results of operations, changes in equity and cash flows of the Predecessor and the Company
for the periods specified, and such financial statements have been prepared in conformity with U.S. generally accepted accounting principles
(“GAAP”) applied on a consistent basis throughout the periods presented. The supporting schedules, if any, relating
to the Predecessor present fairly in all material respects in accordance with GAAP the information required to be stated therein. The
pro forma financial statements of the Company and the related notes thereto included or incorporated by reference in the Registration
Statement and the Prospectus present fairly in all material respects the information shown therein, have been prepared in accordance with
the Commission’s rules and guidelines with respect to pro forma financial statements and have been properly compiled on the
bases described therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate
to give effect to the transactions and circumstances referred to therein. Except as included in the Registration Statement and the Prospectus,
no historical or pro forma financial statements or supporting schedules are required to be included in the Registration Statement or the
Prospectus under the Securities Act. All disclosures contained 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 in all material respects
with Regulation G under the Exchange Act and Item 10 of Regulation S-K under the Securities Act, in each case to the extent applicable.
The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement fairly
present the information called for in all material respects and have been prepared in accordance with the Commission’s rules and
guidelines applicable thereto.
(27) Except
as disclosed in the Registration Statement and the Prospectus, since the date of the most recent audited financial statements included
in the Registration Statement and the Prospectus (or any amendment or supplement thereto), (i) none of the Company, the Operating
Partnership or any of their subsidiaries has incurred any material liabilities or obligations, indirect, direct or contingent, or entered
into any material transaction that is not in the ordinary course of business; (ii) none of the Company, the Operating Partnership
or any of their subsidiaries has sustained any material loss or interference with its business or properties from fire, flood, windstorm,
accident or other calamity, whether or not covered by insurance; (iii) none of the Company, the Operating Partnership or any of their
subsidiaries is in default under the terms of any class of capital stock or other equity interests or any outstanding debt obligations,
(iv) there has not been any material change in the indebtedness of the Company, the Operating Partnership or their subsidiaries (other
than in the ordinary course of business) and (v) there has not been any change, or any development or event involving a prospective
change that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(28) The
Company has filed with the Commission a registration statement on Form 8-A providing for the registration under the Exchange Act
of the Common Stock, which registration is effective. The Securities have been, or prior to the first Settlement Date will be, approved
for listing on the NYSE. The Company has taken no action designed to, or which is likely to have the effect of, terminating the registration
of the Common Stock under the Exchange Act or delisting the Securities from the NYSE, nor has the Company received any notification that
the Commission or the NYSE is contemplating terminating such registration or listing.
(29) Other
than excepted activity pursuant to Regulation M under the Exchange Act, the Company and the Operating Partnership have not taken, directly
or indirectly, any action that constituted, or any action designed to, or that might reasonably be expected to cause or result in or constitute,
under the Securities Act or otherwise, stabilization or manipulation of the price of any securities of the Company to facilitate the sale
or resale of the Securities or for any other purpose.
(30) The
Company and the Operating Partnership and each of their subsidiaries (A) have paid all federal and material state, local and foreign
taxes (whether imposed directly, through withholding or otherwise and including any interest, additions to tax or penalties applicable
thereto) required to be paid through the date hereof, other than those being contested in good faith by appropriate proceedings and for
which adequate reserves have been provided on the books of the applicable entity, (B) have timely filed all federal and other material
tax returns required to be filed through the date hereof, and all such tax returns are true, correct and complete in all material respects,
and (C) have established adequate reserves for all taxes that have accrued but are not yet due and payable. The charges, accruals
and reserves on the books of the Company and the Operating Partnership and each of their respective subsidiaries in respect of any income
and corporation tax liability for any years not finally determined are adequate to meet any assessments or re-assessments for additional
income tax for any years not finally determined, except to the extent of any inadequacy that would not reasonably be expected to result
in a Material Adverse Effect. No tax deficiency has been asserted against the Company and the Operating Partnership or their subsidiaries,
nor do the Company and the Operating Partnership know of any tax deficiency that could reasonably be asserted and, if determined adversely
to any such entity, could have a Material Adverse Effect.
(31) Except
as set forth in the Registration Statement and the Prospectus, there are no transactions with “affiliates” (as defined in
Rule 405 under the Securities Act) or any officer, director or securityholder of the Company or the Operating Partnership (whether
or not an affiliate) that are required by the Securities Act to be disclosed in the Registration Statement. Additionally, no relationship,
direct or indirect, exists between the Company or any of its subsidiaries on the one hand, and the directors, officers, stockholders,
borrowers, customers or suppliers of the Company or any of its subsidiaries on the other hand that is required by the Securities Act to
be disclosed in the Registration Statement and the Prospectus that is not so disclosed.
(32) Neither
the Company nor the Operating Partnership is, or, after giving effect to the offering and sale of the Securities and the application of
the proceeds thereof as described under the caption “Use of Proceeds” in the Prospectus, will be, required to register as
an “investment company” within the meaning of the Investment Company Act.
(33) The
Company and the Operating Partnership and their subsidiaries have good and marketable title to the Properties, in each case, free and
clear of all security interests, mortgages, pledges, liens, encumbrances, claims or equities of any kind other than those that (A) are
described in the Registration Statement and the Prospectus or (B) do not, individually or in the aggregate, materially affect the
value of such Property and do not materially interfere with the use made and proposed to be made of such Property by the Company and the
Operating Partnership and their subsidiaries. Except as described in the Registration Statement and the Prospectus or as would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) the Company and the Operating Partnership and
their subsidiaries have valid, subsisting and enforceable leases with the tenants of the Properties, (ii) no third party has an option
or right of first refusal to purchase any of the Properties other than those that have been properly waived, (iii) the use and occupancy
of each of the Properties complies with all applicable codes and zoning laws and regulations, and (iv) the Company and the Operating
Partnership have no knowledge of any pending or threatened condemnation or zoning change that will in any material respect affect the
size of, use of, improvements of, construction on, or access to any of the Properties.
(34) Except
as disclosed in the Registration Statement and the Prospectus, the mortgages and deeds of trust encumbering the Properties are not convertible
nor will the Company, the Operating Partnership or any of their subsidiaries hold a participating interest therein and such mortgages
and deeds of trust are not cross-defaulted or cross-collateralized to any property not owned directly or indirectly by the Company.
(35) The
Company and the Operating Partnership and their subsidiaries have all permits, licenses, franchises, approvals, consents and authorizations
of governmental or regulatory authorities (hereinafter “permit” or “permits”) as are necessary to
own the Properties and to conduct their business in the manner described in the Registration Statement and the Prospectus, subject to
such qualifications as may be set forth in the Registration Statement and the Prospectus, except where the failure to have obtained any
such permits would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; the Company and the
Operating Partnership and each of their subsidiaries has operated and is operating its business in material compliance with and not in
material violation of its obligations with respect to each such permit and, to the knowledge of the Company and the Operating Partnership,
no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination of any such permit or result
in any other material impairment of the rights of any such permit.
(36) The
Company and its subsidiaries maintain systems of “internal control over financial reporting” (as defined in Rule 13a-15
and Rule 15d-15 under the Exchange Act) and a system of internal accounting controls sufficient to provide reasonable assurances
that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets,
(iii) access to assets is permitted only in accordance with management’s general or specific authorizations and (iv) the
recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect
to any differences. Except as described in the Registration Statement and the Prospectus, there has been no (1) material weakness
in the Company’s internal control over financial reporting (whether or not remediated) and (2) no change in the Company’s
internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting. The Company maintains “disclosure controls and procedures” (as defined in Rule 13a-15(e) under
the Exchange Act) to the extent required by such rule.
(37) The
principal executive officer and principal financial officer of the Company have made all certifications required by the Sarbanes-Oxley
Act and any related rules and regulations promulgated by the Commission of which the Company is required to comply, and the statements
contained in each such certification were complete and correct as of the date of their execution. The Company and its subsidiaries are,
and the Company has taken all necessary actions to ensure that the Company’s directors and officers in their capacities as such
are, each in compliance in all material respects with all applicable provisions of the Sarbanes-Oxley Act and the rules and regulations
of the Commission and the NYSE promulgated thereunder.
(38) None
of the Company, the Operating Partnership or any of their subsidiaries or, to the knowledge of the Company and the Operating Partnership,
any director, officer, agent, employee or affiliate of the Company and the Operating Partnership, 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 (the “Foreign Corrupt
Practices Act”), and the rules and regulations thereunder or any similar anti-corruption law (collectively, “Anti-Corruption
Laws”), including, without limitation, taking any action 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 Foreign Corrupt Practices Act) or any foreign political party or official thereof or any
candidate for foreign political office, in contravention of the Anti-Corruption Laws; the Company and the Operating Partnership and their
subsidiaries and, to the knowledge of the Company and the Operating Partnership, their affiliates have conducted their businesses in compliance
in all material respects with the Anti-Corruption Laws and have instituted and maintain policies and procedures designed to ensure, and
which are reasonably expected to continue to ensure, continued compliance in all material respects therewith.
(39) None
of the Company, the Operating Partnership or any of their subsidiaries or, to the knowledge of the Company and the Operating Partnership,
any director, officer, agent, employee or affiliate of the Company, the Operating Partnership or any of their subsidiaries is currently
subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”);
and the Company and the Operating Partnership will not directly or indirectly use the proceeds of the offering of the Securities, or lend,
contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose
of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC (a “Sanctioned Person”).
In addition, none of the Company, the Operating Partnership or any of their subsidiaries or, to the knowledge of the Company and the Operating
Partnership, any director, officer, employee, agent or affiliate of the Company and the Operating Partnership, is an individual or entity
currently the subject of any sanctions administered or enforced by OFAC, the United Nations Security Council, the European Union or His
Majesty’s Treasury (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 comprehensive 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”). The Company and the Operating Partnership will not, directly or indirectly, use the proceeds of the sale of the Securities,
or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity to fund
or facilitate any activities of or business with any person, or in any country or territory, that, at the time of such funding or facilitation,
is a Sanctioned Person or Sanctioned Country, in each case, in any manner that will result in a violation by any person (including any
person participating in the transaction, whether as Manager, underwriter, advisor, investor or otherwise) of Sanctions. Since their inception,
none of the Company, the Operating Partnership or any of their subsidiaries has knowingly engaged in, or is now knowingly engaged in,
any dealings or transactions with any person that at the time of the dealing or transaction is or was a Sanctioned Person or with any
Sanctioned Country.
(40) The
operations of the Company and the Operating Partnership and their subsidiaries are and have been conducted at all times in compliance
in all material respects with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting
Act of 1970, as amended, the USA PATRIOT Act of 2001, as amended, or the money laundering statutes of all jurisdictions where the Company
conducts business (the “Anti-Money Laundering Laws”), the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency.
(41) The
Company, prior to the date hereof, has not made any offer or sale of securities, which could be “integrated” for purposes
of the Securities Act with the offer and sale of the Securities pursuant to the Registration Statement and the Prospectus.
(42) Except
as otherwise disclosed in the Registration Statement and the Prospectus, there are no pending or, to the knowledge of the Company and
the Operating Partnership, threatened costs or liabilities associated with Environmental Laws (including, without limitation, any capital
or operating expenditures required for investigation, clean up, closure of the 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) which would,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(43) The
Company and the Operating Partnership and their subsidiaries maintain insurance of the types and in the amounts generally deemed adequate
by the Company and the Operating Partnership for the business of the Company and the Operating Partnership and their subsidiaries, all
of which insurance is in full force and effect in all material respects. Without limiting the generality of the foregoing, except as would
not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, each of the Company and the Operating
Partnership and their subsidiaries carries or is entitled to the benefits of title insurance on the fee interests with respect to each
Property with insurers of nationally recognized reputability, in an amount not less than such entity’s purchase price for the real
property comprising such Property and as of the date that such entity first acquired the real property comprising such Property, insuring
that such party is vested with good and insurable fee to each such Property.
(44) Each
of the Company and the Operating Partnership and their subsidiaries owns or has the valid right, title and interest in and to, or has
valid licenses to use, each material trade name, trade and service marks, trade and service mark registrations, patent, patent applications
copyright, licenses, inventions, technology, know-how, approval, trade secret and other similar rights (collectively, “Intellectual
Property”) necessary for the conduct of the business of the Company and the Operating Partnership and their subsidiaries as
now conducted or as proposed in the Prospectus to be conducted. There is no claim pending against the Company, the Operating Partnership
or any of their subsidiaries with respect to any Intellectual Property and none of the Company, the Operating Partnership or their subsidiaries
have received notice or otherwise become aware that any Intellectual Property that such entities use or have used in the conduct of their
business infringes upon or conflicts with the rights of any third party. None of the Company, the Operating Partnership or any of their
subsidiaries has become aware that any Intellectual Property that it uses or has used in the conduct of its business infringes upon or
conflicts with the rights of any third party.
(45) To
the Company’s knowledge, there are no affiliations or associations between (i) any member of FINRA and (ii) the Company
and the Operating Partnership or any of the Company’s officers, directors, 5% or greater security holders or any beneficial owner
of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the
date hereof, except as otherwise disclosed in the Registration Statement and the Prospectus.
(46) Except
as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect: (i) each “employee
benefit plan” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, including
the regulations and published interpretations thereunder (“ERISA”)) established or maintained by the Company and the
Operating Partnership and their subsidiaries (each, a “Plan”) are in compliance with ERISA and all other applicable
state and federal laws; (ii) no “reportable event” (as defined in Section 4043(c) of ERISA) has occurred or
is reasonably expected to occur with respect to each Plan; (iii) no “employee benefit plan” established or maintained
by the Company, the Operating Partnership or their subsidiaries, if such “employee benefit plan” were terminated, would have
any “amount of unfunded benefit liabilities” (as defined in ERISA); (iv) none of the Company, the Operating Partnership
or any of their subsidiaries has incurred or reasonably expects to incur, any liability under (A) Title IV of ERISA with respect
to termination of, or withdrawal from, any Plan or (B) Sections 412, 4971, 4975 or 4980B of the Internal Revenue Code of 1986, as
amended (the “Code”) in respect of a Plan; and (v) each Plan that is intended to be qualified under Section 401(a) of
the Code is so qualified and nothing has occurred, whether by action or failure to act, that could reasonably be expected to cause the
loss of such qualification.
(47) The
Company and the Operating Partnership and their subsidiaries have good and marketable title to all personal property owned by them, in
each case free and clear of all liens, encumbrances, claims and defects and imperfections of title except those that (i) do not materially
interfere with the use made and proposed to be made of such personal property by the Company and the Operating Partnership and their subsidiaries
or (ii) would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(48) Except
as described in the Registration Statement and the Prospectus, none of the Company, the Operating Partnership or any of their subsidiaries
is a party to any contract, agreement or understanding with any person (other than this Agreement) that would give rise to a valid claim
against the Company, the Operating Partnership or any of their subsidiaries or the Manager for a brokerage commission, finder’s
fee or like payment in connection with the offering and sale of the Securities.
(49) Other
than as disclosed in the Registration Statement and the Prospectus, no person has the right to require the Company or any of its subsidiaries
to register any securities for sale under the Securities Act by reason of the filing of the Registration Statement with the Commission
or the issuance and sale of the Securities.
(50) Nothing
has come to the attention of the Company and the Operating Partnership that has caused the Company and the Operating Partnership to believe
that the statistical and market-related data included in the Registration Statement and the Prospectus are not based on or derived from
sources that are reliable and accurate in all material respects and, to the extent required, the Company has obtained the written consent
to the use of such data from such sources.
(51) Commencing
with its short taxable year ended December 31, 2019, the Company has been organized and operated in conformity with the requirements
for qualification and taxation as real estate investment trust (“REIT”) under the Code, and the Company’s current
and proposed method of operation 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, 2023 and thereafter. All statements regarding the Company’s qualification and
taxation as a REIT and descriptions of the Company’s organization and method of operation set forth in the Registration Statement
and the Prospectus are true, complete and correct in all material respects.
(52) Except
as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Operating Partnership is a party to or otherwise
bound by any instrument or agreements that limits or prohibits (whether with or without the giving of notice or the passage of time or
both), directly or indirectly, the Company or the Operating Partnership from paying any dividends or making other distributions on its
capital stock or partnership interests.
(53) No
subsidiary of the Company and the Operating Partnership is currently prohibited, directly or indirectly, under any agreement or other
instrument to which it is a party or is subject, from paying any dividends to the Company or the Operating Partnership or from making
any other distribution on such subsidiary’s capital stock or similar ownership interest, except as described in the Registration
Statement or the Prospectus or as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(54) [Reserved]
(55) Except
as described in the Registration Statement and the Prospectus, the Company does not (i) have any material lending or other relationship
with the Manager or any affiliate of the Manager or (ii) intend to use any of the proceeds from the sale of the Securities to repay
any outstanding debt owed to the Manager or any affiliate of the Manager.
(56) The
statements included in the Registration Statement and the Prospectus under the headings “Description of Capital Stock,” “Certain
Provisions of Maryland Law and of Our Charter and Bylaws,” “Material U.S. Federal Income Tax Considerations,” and “Plan
of Distribution,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are
accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects.
(57) No
securities issued by the Company, the Operating Partnership or any of their subsidiaries are rated by a “nationally recognized statistical
rating organization,” as such term is defined under Section 3(a)(62) of the Exchange Act.
Any certificate signed by
any officer or any authorized representative of the Company or the Operating Partnership and delivered to the Manager, Forward Seller
or Forward Purchaser or to counsel for the Manager, Forward Seller or Forward Purchaser shall be deemed a representation and warranty
by the Company or the Operating Partnership, as the case may be, to the Manager, Forward Seller or Forward Purchaser as to the matters
covered thereby as of the date or dates indicated on such certificate.
(b) Representations
and Warranties of the Adviser. The Adviser represents and warrants to the Manager as of the date hereof and as of each Representation
Date on which certificates are required to be delivered pursuant to Section 7(o) hereof, as of each Applicable Time and as of
each Settlement Date, as follows:
(1) The
information regarding the Adviser in the Registration Statement and the Prospectus is true and correct in all material respects.
(2) The
Adviser has been duly formed and is validly existing as a limited liability company in good standing under the laws of the State of Delaware
and has the limited liability company power and authority to own, lease and operate its properties and to conduct its business as described
in the Registration Statement and the Prospectus and to enter into and perform its obligations under this Agreement and the Management
Agreement, and the Adviser is duly qualified as a foreign limited liability company to transact business and is in good standing in each
other jurisdiction in which such qualification is required, except where the failure to so qualify or to be in good standing would not,
individually or in the aggregate, reasonably be expected to have a material adverse effect on the condition (financial or otherwise),
business, properties, assets, net worth, results of operations or prospects of the Adviser (an “Adviser Material Adverse Effect”).
(3) This
Agreement and the Forward Contract have been duly authorized, executed and delivered by the Adviser.
(4) The
Management Agreement has been duly authorized, executed and delivered by the Adviser and constitutes a valid and binding agreement of
the Adviser, enforceable against the Adviser in accordance with its terms, except to the extent that enforceability may be limited by
(i) the application of bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally
and (ii) general equitable principles being applied at the discretion of a court before which any proceeding may be brought, except
as to rights to indemnity and contribution thereunder may be limited by federal or state securities laws.
(5) The
Adviser is not (i) in violation of its organizational documents or (ii) in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any agreements to which it is bound, or which any of its property or assets is subject,
except, in the case of (ii) above, for such defaults that would not, individually or in the aggregate, reasonably be expected to
result in an Adviser Material Adverse Effect. The execution, delivery and performance of this Agreement and the consummation of the transactions
contemplated herein and compliance by the Adviser with its obligations hereunder do not and will not, whether with or without the giving
of notice or passage of time or both, conflict with or constitute a breach of, or default or Debt Repayment Triggering Event under, or
result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Adviser pursuant to any agreement
to which the Adviser is bound or to which any of its properties or assets is subject (except for such conflicts, breaches, defaults or
Debt Repayment Triggering Events or liens, charges or encumbrances that would not, individually or in the aggregate, reasonably be expected
to result in an Adviser Material Adverse Effect), nor will such action result in any violation of the provisions of the organizational
documents of the Adviser or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the Adviser or any of its properties or assets.
(6) The
Adviser is in compliance with all applicable federal, state, local and foreign laws, rules, regulations, orders, decrees and judgments,
except where the failure to so comply would not reasonably be expected to have, individually or in the aggregate, an Adviser Material
Adverse Effect.
(7) Except
as disclosed in the Registration Statement or the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or
brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Adviser, threatened,
against or affecting the Adviser that would, individually or in the aggregate, reasonably be expected to result in an Adviser Material
Adverse Effect, or that would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated
in this Agreement and the Management Agreement or the performance by the Adviser of its obligations hereunder or thereunder.
(8) Neither
the Adviser nor any member, officer, or employee of the Adviser nor, to the knowledge of the Adviser, any agent, affiliate or other person
associated with or acting on behalf of the Adviser has: (A) used any funds for any unlawful contribution, gift, entertainment or
other unlawful expense relating to political activity; (B) made or taken an act in furtherance of an offer, promise or authorization
of any direct or indirect unlawful payment or benefit to any foreign or domestic government or regulatory official or employee, including
of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for
or on behalf of any of the foregoing, or any political party or party official or candidate for political office; (C) violated or
is in violation of any provision of the Anti-Corruption Laws; or (D) made, offered, agreed, requested or taken an act in furtherance
of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other
unlawful or improper payment or benefit. The Adviser has instituted, maintains and enforces, and will continue to maintain and enforce,
policies and procedures designed to promote and ensure compliance with the Anti-Corruption Laws.
(9) The
operations of the Adviser are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting
requirements, including those of the Anti-Money Laundering Laws of all jurisdictions having jurisdiction over the Adviser, and no action,
suit or proceeding by or before any governmental agency, authority or body involving the Adviser with respect to the Anti-Money Laundering
Laws of any jurisdiction having jurisdiction over the Adviser is pending or, to the knowledge of the Adviser, threatened.
(10) No
filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by the Adviser of its obligations hereunder, in connection with the offering
or the consummation of the transactions contemplated by this Agreement and the Management Agreement, except such as have been already
obtained or as may be required under the Securities Act or state securities laws or as are described in the Registration Statement or
the Prospectus.
(11) The
Adviser possesses all licenses, certificates, permits and other authorizations issued by, and has made all declarations and filings with,
the appropriate federal, state, local or foreign governmental agency, authority or body having jurisdiction over the Adviser that are
necessary for the ownership or lease of its properties or assets or the conduct of its business as currently conducted and described in
the Registration Statement and the Prospectus, except where the failure to possess or make the same would not reasonably be expected to
have, singly or in the aggregate, an Adviser Material Adverse Effect. Except as described in the Registration Statement and the Prospectus,
the Adviser has not received any notice or is otherwise aware of any revocation or modification of any such license, certificate, permit
or authorization or has any reason to believe that any such license, certificate, permit or authorization will not be renewed in the ordinary
course, except where such revocation, modification or non-renewal would not reasonably be expected to have, singly or in the aggregate,
an Adviser Material Adverse Effect.
(12) The
execution, delivery and performance by the Adviser of this Agreement and the Management Agreement and the consummation of the transactions
contemplated by this Agreement and the Management Agreement will not (A) conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, or result in the acceleration of any obligation under, or the creation or
imposition of any lien, charge or encumbrance upon any properties or assets of the Adviser pursuant to, any agreement or instrument to
which the Adviser is a party or by which the Adviser is bound or to which any of the properties or assets of the Adviser is subject, (B) result
in any violation of the provisions of the certificate of formation or limited liability company agreement of the Adviser or (C) result
in the violation of any law or statute applicable to the Adviser or any judgment, order, rule or regulation of any governmental agency,
authority or body having jurisdiction over the Adviser or any of its properties or assets, except, in the case of clauses (A) and
(C) above, for any such conflict, breach, violation, default, acceleration, lien, charge or encumbrance that would not reasonably
be expected to have, singly or in the aggregate, an Adviser Material Adverse Effect.
(13) The
Adviser has not been notified that any current executive officer of the Company or the Adviser plans to terminate his, her or their employment
with his, her or their current employer. Neither the Adviser nor, to the knowledge of the Company, any executive officer or key employee
of the Company or the Adviser, is subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreement
that would be violated by the present or proposed business activities of the Company or the Adviser as described in the Registration Statement
and the Prospectus.
(14) The
Adviser has access to the personnel and other resources necessary for the performance of the duties of the Adviser set forth in the Management
Agreement and as disclosed in the Registration Statement and the Prospectus.
(15) The
Adviser operates a system of internal controls sufficient to provide reasonable assurance that (A) transactions that may be effectuated
by it on behalf of the Company and the Operating Partnership and their subsidiaries pursuant to its duties set forth in the Management
Agreement will be executed in accordance with management’s general or specific authorization and (B) access to the Company’s
or the Operating Partnership’s assets is permitted only in accordance with management’s general or specific authorization.
(16) The
Adviser is insured by insurers with appropriately rated claims paying abilities against such losses and risks and in such amounts as are
prudent and customary for the businesses in which the Adviser is engaged; all policies of insurance and fidelity or surety bonds insuring
the Adviser or its business, assets, employees, officers and directors are in full force and effect; and the Adviser has not been refused
any insurance coverage sought or applied for.
(17) The
Adviser (including its agents and representatives, other than the Manager in its capacity as such) has not prepared, used, authorized,
approved or referred to and will not prepare, use, authorize, approve or refer to any “written communication” (as defined
in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities.
(18) The
Adviser has not taken, and will not take, directly or indirectly, any action that constituted, or any action designed to, or that might
reasonably be expected to cause or result in or constitute, under the Securities Act or otherwise, stabilization or manipulation of the
price of any security of the Company and the Operating Partnership to facilitate the sale or resale of the Securities or for any other
purpose.
Any certificate signed by
any officer or any authorized representative of the Adviser and delivered to the Manager, Forward Seller or Forward Purchaser or to counsel
for the Manager, Forward Seller or Forward Purchaser shall be deemed a representation and warranty by the Adviser to the Manager, Forward
Seller or Forward Purchaser 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 Issuance 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 specifying that it relates to an “Issuance”
or upon receipt by the Manager of an Acceptance, as the case may be, and unless the sale of the Issuance 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 Issuance 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 Issuance 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 Issuance 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 Issuance Securities
as required under this Section 6 and (iii) the Manager shall be under no obligation to purchase Issuance 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 Issuance Securities. Unless otherwise specified in the applicable Placement Notice (as amended by the corresponding Acceptance,
if applicable), settlement for sales of Issuance 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, an “Issuance Settlement Date”).
The amount of proceeds to be delivered to the Company on an Issuance Settlement Date against receipt of the Issuance Securities sold will
be equal to the aggregate offering price received by the Manager at which such Issuance 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 Issuance Securities. On or before each Issuance Settlement Date, the Company will, or will cause its transfer agent to, electronically
transfer the Issuance 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 Issuance 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 Issuance Settlement Date,
the Manager will deliver the related Net Proceeds in same day funds to an account designated by the Company prior to the Issuance Settlement
Date. The Company agrees that if the Company, or its transfer agent (if applicable), defaults in its obligation to deliver Issuance Securities
on an Issuance 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 Issuance 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) Sale
of Forward Hedge Securities. On the basis of the representations and warranties herein contained and subject to the terms and conditions
in this Agreement and the Master Forward Confirmation, upon the Forward Purchaser’s and the Forward Seller’s acceptance of
the terms of a Placement Notice specifying that it relates to a “Forward” or upon receipt by the Forward Purchaser and Forward
Seller of an Acceptance, as the case may be, and unless the sale of the Forward Hedge Securities described therein has been declined,
suspended, or otherwise terminated in accordance with the terms of this Agreement or the Master Forward Confirmation (including without
limitation as a result of any event described in clause (x) or (y) of the proviso contained in the definition of Forward Hedge
Selling Period), the Forward Purchaser will use its commercially reasonable efforts to borrow a number of Forward Hedge Securities sufficient
to have an Aggregate Sales Price as close as reasonably practicable to the Forward Hedge Amount specified in the Placement Notice (as
amended by the corresponding Acceptance, if applicable) and the Forward Seller will use its commercially reasonable efforts consistent
with its normal trading and sales practices to sell such Forward Hedge Securities at market prevailing prices, 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 Forward
Purchaser acknowledges and agrees that (i) there can be no assurance that the Forward Purchaser will be successful in borrowing or
that the Forward Seller will be successful in selling Forward Hedge Securities, (ii) the Forward Seller will incur no liability or
obligation to the Company, the Forward Purchaser, or any other person or entity if it does not sell Forward Hedge Securities borrowed
by the Forward Purchaser for any reason other than a failure by the Forward Seller to use its commercially reasonable efforts consistent
with its normal trading and sales practices to sell such Forward Hedge Securities as required under this Section 6, and (iii) the
Forward Purchaser will incur no liability or obligation to the Company, the Forward Seller, or any other person or entity if it does not
borrow Forward Hedge Securities for any reason other than a failure by the Forward Purchaser to use its commercially reasonable efforts
to borrow such Forward Hedge Securities as required under this Section 6. In acting hereunder, the Forward Seller will be acting
as agent for the Forward Purchaser and not as principal.
(e) Delivery
of Forward Hedge Securities. Unless otherwise specified in the applicable Placement Notice (as amended by the corresponding Acceptance,
if applicable), settlement for sales of Forward Hedge 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 “Forward Hedge Settlement
Date”). On or before each Forward Hedge Settlement Date, the Forward Purchaser will, or will cause its transfer agent to, electronically
transfer the Forward Hedge Securities being sold by crediting the Forward Seller or its designee’s account (provided Forward Seller
shall have given the Forward Purchaser written notice of such designee prior to the Forward Hedge 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 Forward
Hedge Settlement Date, the Forward Seller will deliver the related Aggregate Forward Hedge Price to the Forward Purchaser in same day
funds to an account designated by the Forward Purchaser prior to the relevant Forward Hedge Settlement Date.
(f) Denominations;
Registration. The Securities shall be in such denominations and registered in such names as the Manager or the Forward Seller, as
applicable, may request in writing at least one full business day before the Settlement Date. The Company or the Forward Purchaser, as
the case may be, shall deliver the Securities, if any, through the facilities of The Depository Trust Company as described in the preceding
paragraphs unless the Manager or the Forward Seller, as applicable, shall otherwise instruct.
(g) 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 (i) all sales of Issuance Securities under this Agreement and each of the Alternative Distribution Agreements
and (ii) all Forward Hedge Securities sold 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, the Forward Seller
and the Forward Purchaser 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.
(h) 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 one of the Manager or the Forward Seller, as the case may be, 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 or the Forward Seller,
as the case may be, or 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, the Forward Seller or any Alternative Managers to
sell have been sold.
(i) 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 (in the case of an Issuance) or the Forward Seller and the Forward Purchaser (in the case of a Forward) 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, the Forward Seller and the Forward Purchaser, as the case may be, 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(j) 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, the Forward Seller or the Forward Purchaser, as the case may be, for purposes of (i) and (ii) above,
such period shall be deemed to end at the relevant Filing Time.
(j) 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
(in the case of an Issuance) or the Forward Seller and the Forward Purchaser (in the case of a Forward) (with a copy to their 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 or the Forward Seller and the Forward
Purchaser, as the case may be, (ii) provide the Manager or the Forward Seller and the Forward Purchaser, as the case may be, 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 or the Forward Seller and the Forward Purchaser, as the case may be,
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(i) 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(j) 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(j), this Section 6(j) shall in no way affect or limit the operation of the provisions
of clauses (i) and (iii) of Section 6(j), 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, the Forward Seller and the Forward Purchaser 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, the Forward Seller
and the Forward Purchaser 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 request of the Manager or the Forward Seller and the Forward Purchaser, as the case may be, any amendments or supplements to the Registration
Statement or Prospectus that, in the reasonable opinion of the Manager or the Forward Seller and the Forward Purchaser, as the case may
be, may be necessary or advisable in connection with the distribution of the Securities by the Manager, the Forward Seller or the Forward
Purchaser, as the case may be (provided, however, that the failure of the Manager, the Forward Seller or the Forward Purchaser
to make such request shall not relieve the Company of any obligation or liability hereunder, or affect the Manager’s, the Forward
Seller’s or the Forward Purchaser’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, the Forward Seller and the Forward Purchaser within a reasonable
period of time before the filing and the Manager, the Forward Seller and the Forward Purchaser have not reasonably objected thereto (provided,
however, that the failure of the Manager, the Forward Seller or the Forward Purchaser to make such objection shall not relieve
the Company of any obligation or liability hereunder, or affect the Manager’s, the Forward Seller’s or the Forward Purchaser’s
right to rely on the representations and warranties made by the Company and the Operating Partnership in this Agreement); 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, the Forward Seller and the Forward Purchaser, 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, the Forward Seller, the Forward Purchaser and their
respective counsel (at the expense of the Company) 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, the Forward Seller or the Forward Purchaser
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, the Forward Seller and the Forward Purchaser to the extent such document is available on EDGAR.
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 EDGAR, 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, the Forward Seller or the Forward Purchaser 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 or the Forward Seller and the Forward Purchaser, as applicable, 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 or the Forward Seller and the Forward Purchaser, as applicable, such number of copies of such amendment or supplement as the Manager
or the Forward Seller and the Forward Purchaser, as applicable, 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 or the Forward Seller and the Forward Purchaser, as applicable, 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 and the Forward Seller, 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 and the Forward Seller 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 and the Forward Seller 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
and the net proceeds received under each Forward Contract 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
or the Forward Seller 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. The Company will use its commercially reasonable efforts to cause all Securities delivered
to the Forward Purchaser in settlement of any Forward Contract 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, the Forward Seller and the Forward Purchaser 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
(i) the 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, 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, the Forward Seller and the Forward Purchaser 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 or Forward Seller, as applicable, 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 or Forward Seller, as applicable, pursuant to this Agreement.
(m) Due
Diligence Cooperation. The Company will cooperate with any reasonable due diligence review conducted by the Manager or the Forward
Seller and the Forward Purchaser or their 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 or the Forward Seller and the Forward Purchaser 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 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) shall be a “Representation Date”), each of the Company and the Adviser shall furnish the Manager, the Forward
Seller and the Forward Purchaser with certificates, in the form attached as Exhibits D-1 and D-2 hereto as promptly as possible
and in no event later than three (3) Trading Days after any Representation Date. The requirement to provide certificates 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 certificates under this Section 7(o), then before the
Company delivers the Placement Notice or the Manager or the Forward Seller sells any Securities, the Company and the Adviser shall provide
the Manager, the Forward Seller and the Forward Purchaser with certificates, in the form attached as Exhibits D-1 and D-2
hereto, dated the date of the Placement Notice.
(p) Opinion
of Counsel for Company. 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 after each Representation Date with respect to which the Company and the Adviser are obligated to deliver certificates
in the form attached as Exhibits D-1 and D-2 hereto for which no waiver is applicable, the Company shall cause to be furnished
to the Manager, the Forward Seller and the Forward Purchaser a written opinion and to the Manager and the Forward Seller a 10b-5 statement
of Vinson & Elkins L.L.P., counsel for the Company, in form and substance satisfactory to the Manager, the Forward Seller and
the Forward Purchaser 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.
(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 after each Representation Date with respect to which the Company and the Adviser are obligated to deliver certificates in the form
attached as Exhibits D-1 and D-2 hereto for which no waiver is applicable, the Company shall cause to be furnished to the
Manager, the Forward Seller and the Forward Purchaser a written opinion of Vinson & Elkins L.L.P., tax counsel for the Company,
in form and substance satisfactory to the Manager, the Forward Seller and the Forward Purchaser 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.
(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 after each Representation Date with respect to which the Company and the Adviser are obligated to deliver certificates
in the form attached as Exhibits D-1 and D-2 hereto for which no waiver is applicable, the Manager, the Forward Seller and
the Forward Purchaser shall have received the favorable opinion of Venable 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, the Forward Seller and the Forward
Purchaser with a letter to the effect that the Manager, the Forward Seller and the Forward Purchaser 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
Letters. 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 after each Representation Date with respect to which the Company and the Adviser are obligated to deliver certificates in the form
attached as Exhibits D-1 and D-2 hereto for which no waiver is applicable, the Company shall cause its independent accountants
to furnish the Manager and the Forward Seller a letter (a “Comfort Letter”), dated the date the Comfort Letter is delivered,
in form and substance satisfactory to the Manager and the Forward Seller, (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. In connection with entering into any Forward Contract,
the Company will not acquire any long position (either directly or indirectly, including through an Affiliate or through a derivative
transaction) with respect to shares of Common Stock. For purposes of the foregoing, Affiliate means, with respect to any person or entity,
any other person or entity directly or indirectly controlling, controlled by, or under common control with such person or entity. For
purposes of this definition, “control” when used with respect to any person or entity means ownership of 50% or more of the
voting power or value of such person or entity.
(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 or the Forward Seller as agent hereunder, as applicable,
the Company (including its agents and representatives, other than the Manager or the Forward Seller, in their respective capacities 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 or by the Forward Seller as agent hereunder.
(x) [Reserved]
(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 for its
taxable year ending December 31, 2023, and thereafter, 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 or the Forward Seller 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.
(bb) Reservation
of Shares. In respect of any Forward, a number of shares of Common Stock at least equal to the Capped Number will be reserved for
issuance by the Company’s board of directors.
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 up to an aggregate amount not to
exceed $10,000, (v) the printing and delivery to the Manager, the Forward Seller and the Forward Purchaser 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 or the Forward Seller 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 up to an aggregate amount not to exceed
$1,000 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, the Forward Seller, the Forward Purchasers
and the Alternative Managers for all reasonable, accountable out of pocket expenses, including reasonable fees and disbursements of counsel
actually incurred by the Manager, the Forward Seller, the Forward Purchasers 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 $10,000,000
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 amount under this Agreement and the Alternative Distribution Agreements of $50,000.
SECTION 9 CONDITIONS
OF THE OBLIGATIONS OF THE AGENT, THE FORWARD SELLER AND THE FORWARD PURCHASER.
The obligations of each of
the Manager, the Forward Seller and the Forward Purchaser 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 or the Operating Partnership 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. 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).
(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. None of the Manager, the Forward Seller or the Forward Purchaser shall 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. The Manager, the Forward Seller and the Forward Purchaser shall have received the favorable opinions of Vinson &
Elkins L.L.P., 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. The Manager, the Forward Seller and the Forward Purchaser shall have received the favorable opinions of
Vinson & Elkins L.L.P., 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, the Forward Seller and the Forward Purchaser shall have received the favorable opinions
of Venable LLP, 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 after each Representation Date with respect to which no waiver is applicable, the Manager, the Forward Seller
and the Forward Purchaser shall have received the favorable opinion of Hunton Andrews Kurth LLP, counsel for the Manager, dated the date
the opinion is required to be delivered, in customary form and substance satisfactory to the Manager, the Forward Seller and the Forward
Purchaser, 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, Hunton Andrews Kurth LLP may rely as to matters involving the laws of the State
of Maryland upon the opinion of Venable LLP referred to in Section 7(r).
(i) Representation
Certificate. The Manager, the Forward Seller and the Forward Purchaser 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 and the Forward Seller 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,
the Forward Seller and the Forward Purchaser, as applicable, 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) Effectiveness
of Master Forward Confirmation. In respect of any Placement Notice delivered in respect of any Forward, the Master Forward Confirmation
shall be in full force and effect.
(p) 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, the Forward Seller or the Forward Purchaser, as applicable, 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 22 hereof, as well as the obligation to enter into
any Forward Contract pursuant to Section 2(c) hereof as a result of sales of Forward Hedge Securities occurring prior to such
termination, 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 (including, in the case of any Forward Hedge Securities, the obligation to
enter into the resulting Forward Contract).
SECTION 10 INDEMNIFICATION.
(a) Indemnification
by the Company.
(1) Subject
to the limitations in this paragraph below, the Company and the Operating Partnership jointly and severally agree to indemnify and hold
harmless each of the Manager, the Forward Seller and the Forward Purchaser, each of their respective directors, officers, employees, affiliates
and agents, and each person, if any, who controls the Manager, the Forward Seller or the Forward Purchaser within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages, liabilities and expenses,
including reasonable costs of investigation and attorneys’ fees and expenses (collectively, “Damages”) arising
out of or based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement,
any Issuer Free Writing Prospectus, the Prospectus or in any amendment or supplement thereto, any “issuer information” filed
or required to be filed pursuant to Rule 433(d) under the Securities Act, or (ii) any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in the
light of the circumstances under which they were made) not misleading; except with respect to (i) or (ii) to the extent that
any such Damages arise out of or are based upon an untrue statement or omission or alleged untrue statement or omission that has been
made therein or omitted therefrom in reliance upon and in conformity with the information furnished in writing to the Company by or on
behalf of the Manager, the Forward Seller or the Forward Purchaser, expressly for use in connection therewith. This indemnification shall
be in addition to any liability that the Company and the Operating Partnership may otherwise have.
(2) If
any action or claim shall be brought against the Manager, the Forward Seller or the Forward Purchaser or any person controlling the Manager,
the Forward Seller or the Forward Purchaser in respect of which indemnity may be sought against the Company and the Operating Partnership,
the Manager, the Forward Seller, the Forward Purchaser or such controlling person shall promptly notify in writing the party(s) against
whom indemnification is being sought (the “indemnifying party” or “indemnifying parties”), and such
indemnifying party or parties shall assume the defense thereof, including the employment of counsel reasonably acceptable to the Manager,
the Forward Seller, the Forward Purchaser or such controlling person and the payment of all reasonable fees of and expenses incurred by
such counsel. The Manager, the Forward Seller, the Forward Purchaser or any such controlling person shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of
the Manager, the Forward Seller, the Forward Purchaser or such controlling person, unless (i) the indemnifying party(s) has
(have) agreed in writing to pay such fees and expenses, (ii) the indemnifying party(s) has (have) failed to assume the defense
and employ counsel reasonably acceptable to the Manager, the Forward Seller, the Forward Purchaser or such controlling person or (iii) the
named parties to any such action (including any impleaded parties) include both the Manager, the Forward Seller, the Forward Purchaser
or such controlling person and the indemnifying party(s), and the Manager, the Forward Seller, the Forward Purchaser or such controlling
person shall have been advised by its counsel that one or more legal defenses may be available to the Manager, the Forward Seller or the
Forward Purchaser that may not be available to the Company and the Operating Partnership, or that representation of such indemnified party
and any indemnifying party(s) by the same counsel would be inappropriate under applicable standards of professional conduct (whether
or not such representation by the same counsel has been proposed) due to actual or potential differing interests between them (in which
case the indemnifying party(s) shall not have the right to assume the defense of such action on behalf of the Manager, the Forward
Seller, the Forward Purchaser or such controlling person (but the Company and the Operating Partnership shall not be liable for the fees
and expenses of more than one counsel for the Manager, the Forward Seller, the Forward Purchaser and such controlling persons)). The indemnifying
party(s) shall not be liable for any settlement of any such action effected without its (their several) written consent, but if settled
with such written consent, or if there be a final judgment for the plaintiff in any such action, the indemnifying party(s) agree(s) to
indemnify and hold harmless the Manager, the Forward Seller, the Forward Purchaser and any such controlling person from and against any
loss, claim, damage, liability or expense by reason of such settlement or judgment, but in the case of a judgment only to the extent stated
in the first paragraph of this Section 10.
(b) Indemnification
by the Manager, the Forward Seller or the Forward Purchaser. Each of the Manager, the Forward Seller and the Forward Purchaser agrees
to indemnify and hold harmless each of the Company and the Operating Partnership, their respective directors and their respective officers
who sign the Registration Statement and any person who controls any of the Company and 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 several indemnity from
the Company and the Operating Partnership to the Manager, the Forward Seller and the Forward Purchaser, but only with respect to information
furnished in writing by or on behalf of the Manager, the Forward Seller or the Forward Purchaser expressly for use in the Registration
Statement, the Prospectus, any Issuer Free Writing Prospectus, or any amendment or supplement thereto. If any action or claim shall be
brought or asserted against the Company, the Operating Partnership or any of their respective directors, any of their respective officers
or any such controlling person based on the Registration Statement, the Prospectus or any amendment or supplement thereto, and in respect
of which indemnity may be sought against the Manager, the Forward Seller or the Forward Purchaser pursuant to this Section 10(b),
the Manager, the Forward Seller and the Forward Purchaser shall have the rights and duties given to the Company and the Operating Partnership
by Section 10(a)(2) (except that if the Company and the Operating Partnership shall have assumed the defense thereof the Manager,
the Forward Seller and the Forward Purchaser shall not be required to do so, but may employ separate counsel therein and participate in
the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Manager, the Forward Seller and the Forward
Purchaser), and the Company and the Operating Partnership, their respective directors, their respective officers and any such controlling
persons, shall have the rights and duties given to the Manager, the Forward Seller and the Forward Purchaser by Section 10(a)(2).
(c) Settlement.
In any event, (i) the Company and the Operating Partnership will not, without the prior written consent of the Manager, the Forward
Seller and the Forward Purchaser, as the case may be, settle or compromise or consent to the entry of any judgment in any proceeding or
threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not the Manager,
the Forward Seller or the Forward Purchaser, as the case may be, or any person who controls the Manager, the Forward Seller or the Forward
Purchaser, as the case may be, within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act is a
party to such claim, action, suit or proceeding) unless such settlement, compromise or consent includes an unconditional release of the
Manager, the Forward Seller, the Forward Purchaser, as the case may be, and such controlling persons from all liability arising out of
such claim, action, suit or proceeding and (ii) the Manager, the Forward Seller and the Forward Purchaser will not, without the prior
written consent of the Company and the Operating Partnership, as the case may be, settle or compromise or consent to the entry of any
judgment in any proceeding or threatened claim, action, suit or proceeding in respect of which the indemnification may be sought hereunder
unless such settlement, compromise or consent includes an unconditional release of the Company and the Operating Partnership from all
liability arising out of such claim, action, suit or proceeding.
(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 as contemplated by this Section 10, such indemnifying party agrees that it
shall be liable for any settlement of the nature contemplated by this Section 10 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 is unavailable or insufficient for any reason whatsoever to an indemnified party in respect of any Damages referred
to therein, then an indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable
by such indemnified party as a result of such Damages (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, the Forward Seller and the Forward Purchaser on the other
hand, from the offering and sale of the Securities or (ii) if the allocation provided by clause (i) above 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 and several fault of the Company and the Operating Partnership on the one hand, and the Manager, the Forward Seller
and the Forward Purchaser on the other hand, in connection with the statements or omissions that resulted in such Damages 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, the Forward Seller and the Forward Purchaser, 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,
(x) the total net proceeds from the offering of the Issuance Securities for each Issuance under this Agreement (before deducting
expenses) received by the Company and the Operating Partnership bear to the Aggregate Sales Price of the Issuance Securities, or (y) the
Actual Sold Forward Amount for each Forward under this Agreement, multiplied by the Forward Hedge Price for such Forward (the “Net
Forward Proceeds”), bear to the sum of the Net Forward Proceeds and the Actual Forward Commission (as defined below) (such sum,
the “Gross Forward Amount”), (b) in the case of the Manager, the total commissions received by the Manager bear
to the aggregate public offering price of the Issuance Securities, (c) in the case of the Forward Seller, the Actual Sold Forward
Amount for each Forward under this Agreement, multiplied by the Forward Hedge Selling Commission for such Forward (the “Actual
Forward Commission”), bear to the Gross Forward Amount, and (d) in the case of the Forward Purchaser, the net Spread (as
such term is defined in the Master Forward Confirmation and net of any related stock borrow costs or other costs or expenses actually
incurred) for all Forward Contracts executed in connection with this Agreement, bear to the Gross Forward Amount. The relative fault of
the Company and the Operating Partnership on the one hand, and the Manager, the Forward Seller and the Forward Purchaser, on the other
hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the Company and the Operating Partnership on
the one hand, or by the Manager, the Forward Seller and the Forward Purchaser on the other hand 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, the Manager, the Forward Seller and the Forward Purchaser agrees that it would not be just and equitable if contribution
pursuant to this Section 11 was determined by a pro rata allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the Damages referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section 11, the Manager, the Forward Purchaser and the Forward Seller
shall not be required to contribute any amount in excess of the amount by which, in the case of the Manager, the total price at which
the Issuance Securities sold by such Manager, or in the case of the Forward Seller and the Forward Purchaser, as applicable, the total
price of the Forward Hedge Securities sold by the Forward Seller, in each case pursuant to this Agreement, exceeds the amount of any damages
which the Manager, the Forward Seller or the Forward Purchaser 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.
Any Damages for which an indemnified
party is entitled to indemnification or contribution under Section 10 or this Section 11 shall be paid by the indemnifying party
to the indemnified party as Damages are incurred after receipt of reasonably itemized invoices therefor. The indemnity, contribution and
reimbursement agreements contained in Section 10 and this Section 11 shall remain operative and in full force and effect, regardless
of (i) any investigation made by or on behalf of the Manager, the Forward Seller, the Forward Purchaser or any person controlling
the Manager, the Forward Seller, the Forward Purchaser, the Company and the Operating Partnership and their respective directors, their
respective officers or any person controlling the Company and the Operating Partnership, (ii) acceptance of any Securities and payment
therefor hereunder and (iii) any termination of this Agreement. A successor to the Manager, the Forward Seller, the Forward Purchaser
or any person controlling the Manager, the Forward Seller, the Forward Purchaser or to either of the Company and the Operating Partnership,
their respective directors, their respective officers or any person controlling the Company and the Operating Partnership, shall be entitled
to the benefits of the indemnity, contribution and reimbursement agreements contained in this Section 10 and this Section 11.
The remedies provided for
in Section 10 and this Section 11 are not exclusive and shall not limit any rights or remedies that otherwise may be available
to any indemnified person at law or in equity.
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 or the Operating Partnership submitted pursuant
hereto, shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of the Manager, the
Forward Seller or the Forward Purchaser or any of their Affiliates or selling agents, any person controlling the Manager, the Forward
Seller or the Forward Purchaser or their 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 and the settlement of any Forward Contract or any termination of
this Agreement or the Master Forward Confirmation and any “Supplemental Confirmation” executed in connection with the Master
Forward Confirmation.
SECTION 13 TERMINATION
OF AGREEMENT.
(a) Termination;
General. Each of the Manager, the Forward Seller or the Forward Purchaser, as applicable 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, (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 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, the Forward Seller or the Forward Purchaser. Subject to Section 13(f) hereof, each of the Manager, the Forward
Seller or the Forward Purchaser, as applicable, 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
in the Alternative Distribution Agreements, as applicable, with an aggregate Sales 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, the Forward Seller, the Forward Purchaser 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. Notwithstanding anything
to the contrary contained herein, the obligation to enter into any Forward Contract pursuant to Section 2(c) hereof as a result
of sales of Forward Hedge Securities occurring prior to such termination, 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 (including,
in the case of any Forward Hedge Securities, the obligation to enter into the resulting Forward Contract).
(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 22 and Section 23 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.
(a) Notices
to the Manager shall be directed to:
[ ]
with a copy to:
Hunton Andrews Kurth LLP
600 Travis Street, Suite 4200
Houston, TX 77002
Attention: James V. Davidson
(b) Notices
to the Forward Seller and the Forward Purchaser shall be sent to:
[ ]
with a copy to:
Hunton Andrews Kurth LLP
600 Travis Street, Suite 4200
Houston, TX 77002
Attention: James V. Davidson
(c) Notices
to the Company and the Operating Partnership shall be directed to:
Alpine Income Property Trust, Inc.
369 N. New York Avenue, Suite 201
Winter Park, FL 32789
Attention: General Counsel
with a copy to:
Vinson & Elkins L.L.P.
901 East Byrd Street, Suite 1500
Richmond, VA 23219
Attention: Zachary Swartz
(d) Notices
to the Adviser shall be directed to:
Alpine Income Property Manager, LLC
c/o CTO Realty Growth, Inc.
369 N. New York Avenue, Suite 201
Winter Park, FL 32789
Attention: General Counsel
SECTION 15 RECOGNITION
OF THE U.S. SPECIAL RESOLUTION REGIMES.
(a) In
the event that the Manager, Forward Seller or Forward Purchaser is a Covered Entity and becomes subject to a proceeding under a U.S. Special
Resolution Regime, the transfer from the Manager, Forward Seller or Forward Purchaser 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, Forward Seller or Forward Purchaser is a Covered Entity or a BHC Act Affiliate of the Manager, Forward Seller
or Forward Purchaser 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, Forward Seller or Forward Purchaser 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 Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
SECTION 16 PARTIES.
This Agreement shall inure
to the benefit of and be binding upon the Manager, the Forward Seller, the Forward Purchaser, 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 Forward Seller, the Forward Purchaser, the Company, the Operating Partnership and their respective
successors and the controlling persons and officers, directors, employees or affiliates referred to in Section 10 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 Forward Seller, the Forward Purchaser, 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 or the Forward Seller shall be deemed to be a successor by reason merely
of such purchase.
SECTION 17 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 18 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 19 EFFECT
OF HEADINGS.
The Section and Exhibit headings
herein are for convenience only and shall not affect the construction hereof.
SECTION 20 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 21 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 or the Forward Seller, as
applicable, and the Manager or the Forward Seller, as applicable, 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 the Forward Seller, as applicable, 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 22 ABSENCE
OF FIDUCIARY RELATIONSHIP.
Each of the Company and the
Operating Partnership, severally and not jointly, acknowledges and agrees that:
(a) Each
of the Manager, the Forward Seller and the Forward Purchaser 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, the Forward Seller and the Forward
Purchaser, 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, the Forward Seller or the Forward Purchaser have advised or is advising the Company and/or the Operating
Partnership on other matters, and none of the Manager, the Forward Seller or the Forward Purchaser has any 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, the Forward Seller or the Forward
Purchaser;
(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) none
of the Manager, the Forward Seller or the Forward Purchaser has 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, the Forward Seller, the Forward Purchaser and their 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, the Forward Seller and
the Forward Purchaser 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, the Forward Seller, the Forward Purchaser and their 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, the Forward Seller or the Forward Purchaser
for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that the Manager, the Forward Seller and the Forward Purchaser
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 23 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 24 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 25 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, the Manager,
the Forward Seller and the Forward Purchaser 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 26 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., www.docusign.com) 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 27 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.
[Signature Page Follows]
If the foregoing is in accordance
with your understanding of our agreement, please sign and return to the Company, the Operating Partnership and the Adviser a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Manager, the Adviser, the Forward
Seller, the Forward Purchaser, the Operating Partnership and the Company in accordance with its terms.
Very truly yours,
ALPINE INCOME PROPERTY TRUST, INC. |
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ALPINE INCOME PROPERTY OP, LP |
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Alpine Income Property GP, LLC, its sole general partner |
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Alpine Income Property Trust, Inc., its sole member |
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ALPINE INCOME PROPERTY MANAGER, LLC |
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CTO Realty Growth, Inc., its sole member |
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[Signature Page to the 2023 Equity Distribution
Agreement with Forward]
CONFIRMED AND ACCEPTED, as of the date first above written:
[ ], as Manager |
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[ ], as Forward Seller |
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[ ], as Forward Purchaser, solely as the recipient and/or beneficiary of certain representations, warranties, covenants and indemnities set forth in this Agreement |
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[Signature Page to the 2023 Equity Distribution
Agreement with Forward]
EXHIBIT A
Form of
Placement Notice
_______________ ____, 20__
[ ]
Attention: |
[_________________] |
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(facsimile number: [_________________]) |
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Email: |
[______________________] |
Reference
is made to the Equity Distribution Agreement among Alpine Income Property Trust, Inc., a Maryland corporation (the “Company”),
Alpine Income Property Manager, LLC, a Delaware limited liability company, Alpine Income Property OP, LP, a Delaware limited partnership,
[ ] (the “Forward Purchaser”) and [ ] (in its capacity as agent for the Company in connection with the offering and
sale of any Issuance Securities thereunder, “Manager,” and in its capacity as agent for the Forward Purchaser in connection
with the offering and sale of any Forward Hedge Securities thereunder, the “Forward Seller”), dated as of October 20,
2023 (the “Equity Distribution Agreement”). Capitalized terms used in this Placement Notice without definition shall
have the respective definitions ascribed to them in the Equity Distribution Agreement. This Placement Notice relates to [an “Issuance”]1
[a “Forward”]2. The Company
confirms that all conditions to the delivery of this Placement Notice are satisfied as of the date hereof.
[The Company confirms that it has not declared
and will not declare any dividend, or caused or cause there to be any distribution, on the Common Stock if the ex-dividend date or ex-date,
as applicable, for such dividend or distribution will occur during the period from, and including, the first Trading Day of the Forward
Hedge Selling Period to, and including, the last Trading Day of the Forward Hedge Selling Period.]3
The Company represents and warrants that each
representation, warranty, covenant and other agreement of the Company contained in the Equity Distribution Agreement [and the Master Forward
Confirmation]4 is true and correct on the date hereof, and that the Prospectus, including the documents incorporated by reference
therein, and any applicable Issuer Free Writing Prospectus, as of the date hereof, do not contain an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were
made, not misleading.
Number of Days in [Issuance]5 [Forward
Hedge]6 Selling Period:
First Date of [Issuance]7 [Forward
Hedge]8 Selling Period:
Maximum Number of Securities to be Sold:
1
Insert for a Placement Notice that relates to an “Issuance.”
2
Insert for a Placement Notice that relates to a “Forward.”
3
Insert for a Placement Notice that relates to a “Forward.”
4
Insert for Placement Notice that relates to a “Forward.”
5
Insert for a Placement Notice that relates to an “Issuance.”
6
Insert for a Placement Notice that relates to a “Forward.”
7
Insert for a Placement Notice that relates to an “Issuance.”
8
Insert for a Placement Notice that relates to a “Forward.”
[Issuance]9 [Forward Hedge]10
Amount: $
[Forward Hedge Selling Commission Rate: %
Forward Price Reduction Dates |
|
Forward Price Reduction Amounts |
|
$ |
|
|
$ |
|
Spread:
Initial Stock Loan Rate: [ ] per annum
Maximum Stock Loan Rate: [ ] per annum
Regular Dividend Amounts:
For any calendar month ending on or prior to [December 31, 20[ ]]: |
$[ ] |
For any calendar month ending after [December 31, 20[ ]]: |
$[ ]11 |
[Term: [Days][Months]]12:
Floor Price (Adjustable by Company during the
[Issuance]13 [Forward Hedge]14 Selling Period, and in no event less than $1.00 per share): $ per share
9
Insert for a Placement Notice that relates to an “Issuance.”
10
Insert for a Placement Notice that relates to a “Forward.”
11
Insert for a Placement Notice that relates to a “Forward.” Regular Dividend Amounts shall not exceed the Forward
Price Reduction Amount for the Forward Price Reduction Date occurring in the relevant month (or, if none, shall not exceed zero).
12
Insert for a Placement Notice that relates to a “Forward” to be not less than three months and not more than
2 years.
13
Insert for a Placement Notice that relates to an “Issuance.”
14
Insert for a Placement Notice that relates to a “Forward.”
EXHIBIT B
AUTHORIZED
INDIVIDUALS FOR PLACEMENT NOTICES AND ACCEPTANCES
Alpine Income Property Trust, Inc.
Name |
Email |
John Albright |
xxxxxx@xxxxxx.com |
Matthew Partridge |
xxxxxx@xxxxxx.com |
[ ]
Name |
Email |
[ ] |
[ ] |
[ ] |
[ ] |
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 Issuance Securities pursuant to the terms of this
Agreement.
EXHIBIT D-1
OFFICERS’
CERTIFICATE OF THE COMPANY
EXHIBIT D-2
OFFICERS’
CERTIFICATE OF THE ADVISER
EXHIBIT E
FORM OF
CORPORATE OPINION OF
Vinson & Elkins L.L.P.
EXHIBIT F
FORM OF
TAX OPINION OF
Vinson & Elkins L.L.P.
EXHIBIT G
FORM OF
OPINION OF Venable LLP
EXHIBIT H
PERMITTED
FREE WRITING PROSPECTUS
None.
Exhibit 1.2
Opening Transaction
| To: | Alpine Income Property Trust, Inc. |
| Re: | Issuer Share Forward Sale Transactions |
Ladies and Gentlemen:
The purpose of this communication
(this “Master Confirmation”) is to set forth the terms and conditions of the transactions to be entered into from time
to time between [DEALER] (“Dealer”) and Alpine Income Property Trust, Inc. (“Counterparty”)
in accordance with the terms of the Equity Distribution Agreement dated October 20, 2023 among Dealer, [______], Alpine Income Property
OP, LP, a Delaware limited partnership (the “Operating Partnership”), Alpine Income Property Manager, LLC, a Delaware
limited liability company (the “Manager”) and Counterparty (the “Equity Distribution Agreement”)
on the Trade Dates specified herein (collectively, the “Transactions” and, each, a “Transaction”).
This communication constitutes a “Confirmation” as referred to in the Agreement specified below. Each Transaction will be
evidenced by a supplemental confirmation (each, a “Supplemental Confirmation,” and each such Supplemental Confirmation,
together with this Master Confirmation, a “Confirmation” for purposes of the Agreement specified below) substantially
in the form of Exhibit A hereto.
1. Each
Confirmation is subject to, and incorporates, the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”),
as published by the International Swaps and Derivatives Association, Inc. (“ISDA”). For purposes of the Equity
Definitions, each Transaction will be deemed to be a Share Forward Transaction.
Each Confirmation shall supplement,
form a part of and be subject to an agreement (the “Agreement”) in the form of the ISDA 2002 Master Agreement
(the “ISDA Form”), as published by ISDA, as if Dealer and Counterparty had executed the ISDA Form on the date
hereof (but without any Schedule except for (i) the election of New York law (without regard to New York’s choice of laws doctrine
other than Title 14 of Article 5 of the New York General Obligations Law (the “General Obligations Law”)) as the
governing law and US Dollars (“USD”) as the Termination Currency and (ii) the election that the “Cross Default”
provisions of Section 5(a)(vi) shall apply to Dealer and Counterparty with a “Threshold Amount” in respect of Dealer
of 3% of the stockholders’ equity of Dealer and a “Threshold Amount” in respect of Counterparty of USD $100 million
(including its equivalent in another currency); provided that (x) the words “, or becoming capable at such
time of being declared,” shall be deleted from clause (1) thereof, (y) “Specified Indebtedness” has the meaning
specified in Section 14 of the Agreement, except that such term shall not include obligations in respect of deposits received in
the ordinary course of Dealer’s banking business and (z) the following language shall be added to the end of such Section 5(a)(vi):
“Notwithstanding the foregoing, a default under subsection (2) hereof shall not constitute an Event of Default if (X) the
default was caused solely by error or omission of an administrative or operational nature; (Y) funds were available to enable the
party to make the payment when due; and (Z) the payment is made within two Local Business Days of such party’s receipt of written
notice of its failure to pay;”).
All provisions contained
in the Agreement are incorporated into and shall govern each Confirmation except as expressly modified below. Each Confirmation evidences
a complete and binding agreement between Dealer and Counterparty as to the terms of the relevant Transaction and replaces any previous
agreement between the parties with respect to the subject matter hereof.
The Transactions hereunder
shall be the sole Transactions under the Agreement. If there exists any ISDA Master Agreement between Dealer or any of its Affiliates
and Counterparty or any confirmation or other agreement between Dealer or any of its Affiliates and Counterparty pursuant to which
an ISDA Master Agreement is deemed to exist between Dealer or any of its Affiliates and Counterparty, then notwithstanding anything to
the contrary in such ISDA Master Agreement, such confirmation or agreement or any other agreement to which Dealer or such other Affiliates
and Counterparty are parties, the Transactions shall not be considered Transactions under, or otherwise governed by, such existing or
deemed ISDA Master Agreement. In the event of any inconsistency among the Agreement, this Master Confirmation, any Supplemental Confirmation
and the Equity Definitions, the following will prevail in the order of precedence indicated: (i) such Supplemental Confirmation;
(ii) this Master Confirmation; (iii) the Equity Definitions; and (iv) the Agreement.
2. The
terms of the particular Transactions to which this Master Confirmation relates are as follows:
General Terms: |
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Trade Date: |
|
For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be, subject to the provisions opposite the caption “Early Valuation” below, the last Trading Day (as defined in the Equity Distribution Agreement) of the Forward Hedge Selling Period (as defined in the Equity Distribution Agreement) for such Transaction. |
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Effective Date: |
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For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be the date that is one Settlement Cycle following the Trade Date for such Transaction, or such later date on which the conditions set forth in Section 3 of this Master Confirmation shall have been satisfied or waived by Dealer. |
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Buyer: |
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Dealer |
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Seller: |
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Counterparty |
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Maturity Date: |
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For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be the date that follows the Trade Date for such Transaction by the number of days or months set forth in the Placement Notice (as defined in the Equity Distribution Agreement and amended by any corresponding Acceptance (as defined in the Equity Distribution Agreement), if applicable (the “Accepted Placement Notice”)) for such Transaction (or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day). |
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Shares: |
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The shares of common stock, par value USD $0.01 per Share, of Counterparty (Ticker: “PINE”) |
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Number of Shares: |
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For each Transaction, initially, as specified in the Supplemental Confirmation for such Transaction, to be the number of Shares equal to the Actual Sold Forward Amount (as defined in the Equity Distribution Agreement) for the Forward Hedge Selling Period for such Transaction, as reduced on each Relevant Settlement Date (as defined under “Settlement Terms” below) by the number of Settlement Shares to which the related Valuation Date relates. |
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Settlement Currency: |
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USD |
Exchange: |
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The New York Stock Exchange |
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Related Exchange: |
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All Exchanges |
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Prepayment: |
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Not Applicable |
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Variable Obligation: |
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Not Applicable |
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Forward Price: |
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For each Transaction, on the Effective Date for
such Transaction, the Initial Forward Price for such Transaction, and on any day thereafter, the product of the Forward Price for such
Transaction on the immediately preceding calendar day and
1 + the Daily Rate * (1/365);
provided that the Forward Price for such Transaction
on each Forward Price Reduction Date for such Transaction shall be the Forward Price for such Transaction otherwise in effect on such
date minus the Forward Price Reduction Amount for such Forward Price Reduction Date.
Notwithstanding the foregoing, to the extent
Counterparty delivers Shares hereunder on or after a Forward Price Reduction Date and at or before the record date for an ordinary cash
dividend with an ex-dividend date corresponding to such Forward Price Reduction Date (and, for the avoidance of doubt, the related dividend
will be paid on such Shares), the Calculation Agent shall adjust the Forward Price to the extent the Calculation Agent determines, in
good faith and its commercially reasonable discretion, that such an adjustment is practicable and appropriate to preserve the economic
intent of the parties (taking into account Dealer’s commercially reasonable Hedge Positions in respect of the Transaction). |
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Initial Forward Price: |
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For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be the product of (i) an amount equal to 1 minus the Forward Hedge Selling Commission Rate (as defined in the Equity Distribution Agreement) applicable to such Transaction; and (ii) the Volume-Weighted Hedge Price, subject to adjustment as set forth herein. |
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Volume-Weighted Hedge Price: |
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For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be the volume-weighted average of the Sales Prices (as defined in the Equity Distribution Agreement) per share of Forward Hedge Securities (as defined in the Equity Distribution Agreement) sold on each Trading Day of the Forward Hedge Selling Period for such Transaction, as determined by the Calculation Agent; provided that, solely for the purposes of calculating the Initial Forward Price, each such Sales Price (other than, with respect to the application of the Daily Rate, the Sales Price for the last day of the relevant Forward Hedge Selling Period) shall be subject to adjustment by the Calculation Agent (including, for the avoidance of doubt, by application of the Daily Rate and any Forward Price Reduction Amount), in the same manner as the Forward Price pursuant to the definition thereof during the period from, and including, the date one Settlement Cycle immediately following the first Trading Day of the relevant Forward Hedge Selling Period on which the Forward Hedge Securities related to such Sales Price are sold (or, for any Sales Price adjusted with respect to any Forward Price Reduction Amount, the related Forward Price Reduction Date after the Trading Day on which the related Forward Hedge Securities were sold for such Sales Price) to, and including, the Effective Date of such Transaction. |
Daily Rate: |
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For any day, the Overnight Bank Rate (or if the Overnight Bank Rate is no longer available, a successor rate selected by the Calculation Agent in its commercially reasonable discretion) minus the Spread. |
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Spread: |
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For each Transaction, as specified in the Supplemental Confirmation for such Transaction. |
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Overnight Bank Rate: |
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For any day, the rate set forth for such day opposite the caption “Overnight bank funding rate” as displayed on the page “OBFR01 <Index> <GO>” on the BLOOMBERG Professional Service, or any successor page; provided that, if no such rate appears for such day on such page, Overnight Bank Rate for such day shall be such rate for the immediately preceding day for which such a rate appears. |
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Forward Price Reduction Dates: |
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For each Transaction, as specified in Schedule I to the Supplemental Confirmation for such Transaction, to be each date after the first Trading Day of the relevant Forward Hedge Selling Period set forth under the heading “Forward Price Reduction Dates” in the Accepted Placement Notice for such Transaction. |
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Forward Price Reduction Amount: |
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For each Forward Price Reduction Date of a Transaction, as specified in Schedule I to the Supplemental Confirmation for such Transaction, to be the Forward Price Reduction Amount set forth opposite such date in the Accepted Placement Notice for such Transaction. |
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Valuation: |
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Valuation Date: |
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For any Settlement (as defined below) with respect to any Transaction, if Physical Settlement is applicable, as designated in the relevant Settlement Notice (as defined below); or if Cash Settlement or Net Share Settlement is applicable, the last Unwind Date for such Settlement. Section 6.6 of the Equity Definitions shall not apply to any Valuation Date. |
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Unwind Dates: |
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For any Cash Settlement or Net Share Settlement with respect to any Settlement of any Transaction, each day on which Dealer (or its agent or affiliate) purchases Shares in the market in connection with unwinding its commercially reasonable hedge position in connection with such Settlement, starting on the First Unwind Date for such Settlement. |
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First Unwind Date: |
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For any Cash Settlement or Net Share Settlement with respect to any Settlement of any Transaction, as designated in the relevant Settlement Notice. |
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Unwind Period: |
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For any Cash Settlement or Net Share Settlement with respect to any Settlement of any Transaction, the period starting on the First Unwind Date for such Settlement and ending on the Valuation Date for such Settlement. |
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Cash Settlement Valuation Disruption: |
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If Cash Settlement is applicable with respect to any Transaction and any Unwind Date during the related Unwind Period is a Disrupted Day, the Calculation Agent shall determine (except in the case of a Disrupted Day that occurs as a result of a Regulatory Disruption, which shall always be a Disrupted Day in full) whether (i) such Disrupted Day is a Disrupted Day in full, in which case the 10b-18 VWAP for such Disrupted Day shall not be included in the calculation of the Settlement Price, or (ii) such Disrupted Day is a Disrupted Day only in part, in which case the 10b-18 VWAP for such Disrupted Day shall be determined by the Calculation Agent based on Rule 10b-18 eligible transactions (as defined below) in the Shares on such Disrupted Day, taking into account the nature and duration of the relevant Market Disruption Event, and the weightings of the 10b-18 VWAP and the Forward Prices for each Unwind Date during such Unwind Period shall be adjusted in a commercially reasonable manner by the Calculation Agent for purposes of determining the Settlement Price and the Relevant Forward Price, as applicable, to account for the occurrence of such partially Disrupted Day, with such adjustments based on, among other factors, the duration of any Market Disruption Event and the volume, historical trading patterns and price of the Shares. |
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Market Disruption Event: |
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The definition of “Market Disruption Event”
in Section 6.3(a) of the Equity Definitions is hereby amended by deleting the words “at any time during the one- hour
period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case
may be” and inserting the words “at any time on any Exchange Business Day during the Unwind Period” after the word “material,”
in the third line thereof.
Section 6.3(d) of the Equity Definitions
is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line
thereof. |
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Settlement Terms:
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Settlement: |
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With respect to any Transaction, any Physical Settlement, Cash Settlement or Net Share Settlement of all or any portion of such Transaction. |
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Settlement Notice: |
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For any Transaction, subject to “Early Valuation” below, Counterparty may elect to effect a Settlement of all or any portion of such Transaction by designating one or more Scheduled Trading Days following the Effective Date for such Transaction and on or prior to the Maturity Date for such Transaction to be Valuation Dates (or, with respect to Cash Settlements or Net Share Settlements of such Transaction, First Unwind Dates, each of which First Unwind Dates shall occur no later than the sixtieth (60th) Scheduled Trading Day immediately preceding the Maturity Date for such Transaction) in a written notice to Dealer (a “Settlement Notice”) delivered no later than the applicable Settlement Method Election Date for such Transaction, which notice shall also specify (i) the number of Shares (the “Settlement Shares”) for such Settlement (not to exceed the number of Undesignated Shares for such Transaction as of the date of such Settlement Notice) and (ii) the Settlement Method applicable to such Settlement; provided that (A) Counterparty may not designate a First Unwind Date for a Cash Settlement or a Net Share Settlement of any Transaction if, as of the date of such Settlement Notice, any Shares have been designated as Settlement Shares for a Cash Settlement or a Net Share Settlement of such Transaction for which the related Relevant Settlement Date has not occurred; and (B) if the number of Undesignated Shares as of the Maturity Date for such Transaction is not zero, then the Maturity Date for such Transaction shall be a Valuation Date for a Physical Settlement of such Transaction and the number of Settlement Shares for such Settlement shall be the number of Undesignated Shares for such Transaction as of the Maturity Date for such Transaction (provided that if such Maturity Date occurs during the period from the time any Settlement Notice is given for a Cash Settlement or Net Share Settlement of such Transaction until the related Relevant Settlement Date, inclusive, then the provisions set forth below opposite “Early Valuation” shall apply to such Transaction as if the Maturity Date for such Transaction were the Early Valuation Date for such Transaction). |
Undesignated Shares: |
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For any Transaction, as of any date, the Number of Shares for such Transaction minus the number of Shares designated as Settlement Shares for Settlements of such Transaction for which the related Relevant Settlement Date has not occurred. |
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Settlement Method Election: |
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For any Transaction, applicable; provided that:
(i) Net Share Settlement shall be deemed
to be included as an additional settlement method under Section 7.1 of the Equity Definitions;
(ii) Counterparty may elect Cash Settlement
or Net Share Settlement for any Settlement of any Transaction only if Counterparty represents and warrants to Dealer in the Settlement
Notice containing such election that, as of the date of such Settlement Notice: (A) Counterparty is not aware of any material nonpublic
information concerning itself or the Shares; (B) Counterparty is electing the settlement method and designating the First Unwind
Date specified in such Settlement Notice in good faith and not as part of a plan or scheme to evade compliance with Rule 10b-5 (“Rule 10b-5”)
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any other provision of the federal securities
laws; (C) Counterparty is not “insolvent” (as such term is defined under Section 101(32) of the U.S. Bankruptcy
Code (Title 11 of the United States Code) (the “Bankruptcy Code”)); (D) Counterparty would be able to purchase a number
of Shares equal to the greater of (x) the number of Settlement Shares designated in such Settlement Notice and (y) a number
of Shares with a value as of the date of such Settlement Notice equal to the product of (I) such number of Settlement Shares and
(II) the applicable Relevant Forward Price for such Cash Settlement or Net Share Settlement in compliance with the laws of Counterparty’s
jurisdiction of organization; (E) such election, and settlement in accordance therewith, does not and will not violate or conflict
with any law or regulation applicable to Counterparty, or any order or judgment of any court or other agency of government applicable
to it or any of its assets, and any governmental consents that are required to have been obtained by Counterparty with respect to such
election or settlement have been obtained and are in full force and effect and all conditions of any such consents have been complied
with; and (F) neither Counterparty nor any of its subsidiaries has applied, and shall not until after the first date on which no
portion of the Transaction remains outstanding following any final exercise and settlement, cancellation or early termination of the
Transaction, apply, for a loan, loan guarantee, direct loan (as that term is defined in the Coronavirus Aid, Relief and Economic Security
Act (the “CARES Act”)) or other investment, or receive any financial assistance or relief under any program or facility
(collectively “Financial Assistance”) that (I) is established under applicable law (whether in existence as of
the Trade Date or subsequently enacted, adopted or amended), including without limitation the CARES Act and the Federal Reserve Act,
as amended, and (II) (X) requires under applicable law (or any regulation, guidance, interpretation or other pronouncement
of a governmental authority with jurisdiction for such program or facility) as a condition of such Financial Assistance, that Counterparty
comply with any requirement not to, or otherwise agree, attest, certify or warrant that it has not, as of the date specified in such
condition, repurchased, or will not repurchase, any equity security of Issuer, and that it has not, as of the date specified in the condition,
made a capital distribution or will make a capital distribution, or (Y) where the terms of the Transaction would cause Counterparty
under any circumstances to fail to satisfy any condition for application for or receipt or retention of the Financial Assistance (collectively
“Restricted Financial Assistance”), other than any such applications for Restricted Financial Assistance that were
(or would be) made (x) determined based on the advice of outside counsel of national standing that the terms of the Transaction
would not cause Counterparty to fail to satisfy any condition for application for or receipt or retention of such Financial Assistance
based on the terms of the program or facility as of the date of such advice or (y) after delivery to Dealer evidence or other guidance
from a governmental authority with jurisdiction for such program or facility that the Transaction is permitted under such program or
facility (either by specific reference to the Transaction or by general reference to transactions with the attributes of the Transaction
in all relevant respects) and |
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(iii) Notwithstanding any election to the
contrary in any Settlement Notice, Physical Settlement shall be applicable for any Settlement of any Transaction:
(A) to
all of the Settlement Shares designated in such Settlement Notice if, at any time from the date such Settlement Notice is received by
Dealer until the related First Unwind Date, inclusive, (I) the trading price per Share on the Exchange (as determined by Dealer in
a commercially reasonable manner) is below the Threshold Price or (II) Dealer determines, in its good faith and commercially reasonable
judgment, that it would, after using commercially reasonable efforts, be unable to purchase a number of Shares in the market sufficient
to unwind a commercially reasonable hedge position in respect of the portion of the Transaction represented by such Settlement Shares
and satisfy its delivery obligation hereunder, if any, by the Maturity Date (x) in a manner that (A) would, if Dealer were Counterparty
or an affiliated purchaser of Counterparty and taking into account any other Transactions hereunder with an overlapping Unwind Period,
be in compliance with the safe harbor provided by Rule 10b-18(b) under the Exchange Act and (B) based on advice of counsel,
would not raise material risks under applicable securities laws, other than as a result of activities by Dealer unrelated to any Transaction,
or (y) due to the lack of sufficient liquidity in the Shares (each, a “Trading Condition”); or
(B) to
all or a portion of the Settlement Shares designated in such Settlement Notice if, on any day during the relevant Unwind Period, (I) the
trading price per Share on the Exchange (as determined by Dealer in a commercially reasonable manner) is below the Threshold Price or
(II) Dealer determines, in its good faith and commercially reasonable judgment or based on advice of counsel, as applicable, that
a Trading Condition has occurred with respect to such Transaction, in which case the provisions set forth below in the fourth paragraph
opposite “Early Valuation” shall apply as if such day were the Early Valuation Date for such Transaction and (x) for
purposes of clause (i) of such paragraph, such day shall be the last Unwind Date of such Unwind Period and the “Unwound Shares”
shall be calculated to, and including, such day and (y) for purposes of clause (ii) of such paragraph, the “Remaining
Shares” shall be equal to the number of Settlement Shares designated in such Settlement Notice minus the Unwound Shares determined
in accordance with clause (x) of this sentence. |
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Threshold Price: |
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For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be 50 % of the Initial Forward Price for such Transaction. |
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Electing Party: |
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Counterparty |
Settlement Method Election Date: |
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With respect to any Settlement of any Transaction, the 2nd Scheduled Trading Day immediately preceding (x) the Valuation Date for such Transaction, in the case of Physical Settlement, or (y) the First Unwind Date for such Transaction, in the case of Cash Settlement or Net Share Settlement. |
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Default Settlement Method: |
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Physical Settlement |
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Physical Settlement: |
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Notwithstanding Section 9.2(a)(i) of the Equity Definitions, on the Settlement Date for any Physical Settlement of any Transaction, Dealer shall pay to Counterparty an amount equal to the Forward Price for such Transaction on the relevant Settlement Date multiplied by the number of Settlement Shares for such Settlement, and Counterparty shall deliver to Dealer such Settlement Shares. |
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Settlement Date: |
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For any Settlement of any Transaction to which Physical Settlement is applicable, the Valuation Date for such Settlement. |
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Net Share Settlement: |
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On the Net Share Settlement Date for any Settlement of any Transaction to which Net Share Settlement is applicable, if the Net Share Settlement Amount for such Settlement is greater than zero, Counterparty shall deliver a number of Shares equal to such Net Share Settlement Amount (rounded down to the nearest integer) to Dealer, and if such Net Share Settlement Amount is less than zero, Dealer shall deliver a number of Shares equal to the absolute value of such Net Share Settlement Amount (rounded down to the nearest integer) to Counterparty, in either case, in accordance with Section 9.4 of the Equity Definitions, with such Net Share Settlement Date deemed to be a “Settlement Date” for purposes of such Section 9.4, and, in either case, plus cash in lieu of any fractional Shares included in such Net Share Settlement Amount but not delivered due to rounding required hereby, valued at the relevant Settlement Price. |
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Net Share Settlement Date: |
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For any Settlement of any Transaction to which Net Share Settlement is applicable, the date that follows the Valuation Date for such Settlement by one Settlement Cycle. |
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Net Share Settlement Amount: |
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For any Settlement of any Transaction to which Net Share Settlement is applicable, an amount equal to the Forward Cash Settlement Amount for such Settlement divided by the Settlement Price for such Settlement. |
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Forward Cash Settlement Amount: |
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Notwithstanding Section 8.5(c) of the Equity Definitions, the Forward Cash Settlement Amount for any Cash Settlement or Net Share Settlement of any Transaction shall be equal to (i) the number of Settlement Shares for such Settlement multiplied by (ii) an amount equal to (A) the Settlement Price for such Settlement minus (B) the Relevant Forward Price for such Settlement. |
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Relevant Forward Price: |
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For any Cash Settlement of any Transaction,
subject to “Cash Settlement Valuation Disruption” above, the arithmetic average of the Forward Prices for such Transaction
on each Unwind Date relating to such Settlement. |
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For any Net Share Settlement of any Transaction,
the weighted average of the Forward Prices for such Transaction on each Unwind Date relating to such Settlement (weighted based on the
number of Shares purchased by Dealer or its agent or affiliate on each such Unwind Date in connection with unwinding its commercially
reasonable hedge position in connection with such Settlement, as determined by the Calculation Agent). |
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Cash Settlement Payment Date: |
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For any Settlement of any Transaction to which Cash Settlement is applicable, the date that follows the Valuation Date for such Settlement by one Settlement Cycle. |
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Settlement Price: |
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For any Cash Settlement of any Transaction, subject
to “Cash Settlement Valuation Disruption” above, the arithmetic average of the 10b-18 VWAP on each Unwind Date relating to
such Settlement, plus a commercially reasonable amount determined by the Calculation Agent that in no event will exceed USD 0.05.
For any Net Share Settlement of any Transaction,
the weighted average price of the purchases of Shares made by Dealer (or its agent or affiliate) during the Unwind Period for such Settlement
in connection with unwinding its commercially reasonable hedge position relating to such Settlement (weighted based on the number of Shares
purchased by Dealer or its agent or affiliate on each Unwind Date in connection with unwinding its commercially reasonable hedge position
in connection with such Settlement, as determined by the Calculation Agent), plus a commercially reasonable amount determined by the Calculation
Agent that in no event will exceed USD 0.03.
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10b-18 VWAP: |
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For any Exchange Business Day, as determined by the Calculation Agent based on the 10b-18 Volume Weighted Average Price per Share as reported in the composite transactions for United States exchanges and quotation systems for the regular trading session (including any extensions thereof) of the Exchange on such Exchange Business Day (without regard to pre-open or after hours trading outside of such regular trading session for such Exchange Business Day), as published by Bloomberg at 4:15 p.m. New York time (or 15 minutes following the end of any extension of the regular trading session) on such Exchange Business Day, on Bloomberg page “PINE <Equity> AQR SEC” (or any successor thereto), or if such price is not so reported on such Exchange Business Day for any reason or is, in the Calculation Agent’s reasonable determination, erroneous, such 10b-18 VWAP shall be as reasonably determined by the Calculation Agent. For purposes of calculating the 10b-18 VWAP for such Exchange Business Day, the Calculation Agent will include only those trades that are reported during the period of time during which Counterparty could purchase its own shares under Rule 10b-18(b)(2) and are effected pursuant to the conditions of Rule 10b-18(b)(3), each under the Exchange Act (such trades, “Rule 10b-18 eligible transactions”). |
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Unwind Activities: |
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The times and prices at which Dealer (or its agent or affiliate) purchases any Shares during any Unwind Period in connection with unwinding its commercially reasonable hedge position in respect of each Transaction shall be determined by Dealer in a commercially reasonable manner. Without limiting the generality of the foregoing, in the event that Dealer concludes, in its reasonable discretion based on advice of counsel, that it is appropriate with respect to any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer) (a “Regulatory Disruption”), for it to refrain from purchasing Shares in connection with unwinding its commercially reasonable hedge position in respect of such Transaction on any Scheduled Trading Day that would have been an Unwind Date but for the occurrence of a Regulatory Disruption, Dealer may (but shall not be required to) notify Counterparty in writing that a Regulatory Disruption has occurred on such Scheduled Trading Day with respect to such Transaction, in which case Dealer shall, to the extent practicable in its good faith discretion, specify the nature of such Regulatory Disruption. In such an instance, the Regulatory Disruption shall be deemed to be a Market Disruption Event and, for the avoidance of doubt, such Scheduled Trading Day shall be a Disrupted Day in full. Dealer may exercise its right in respect of any Regulatory Disruption only in good faith in relation to events or circumstances that are not the result of actions of it or any of its Affiliates that are taken with the intent to avoid its obligations under the Transactions. |
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Relevant Settlement Date: |
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For any Settlement of any Transaction, the Settlement Date, Cash Settlement Payment Date or Net Share Settlement Date for such Settlement, as the case may be. |
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Other Applicable Provisions: |
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To the extent Dealer is obligated to deliver Shares under any Transaction, the provisions of Sections 9.2 (last sentence only), 9.8, 9.9, 9.10, 9.11 and 9.12 of the Equity Definitions will be applicable as if “Physical Settlement” applied to such Transaction; provided that the Representation and Agreement contained in Section 9.11 of the Equity Definitions shall be modified by excluding any representations therein relating to restrictions, obligations, limitations or requirements under applicable securities laws that exist as a result of the fact that Counterparty is the issuer of the Shares. |
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Share Adjustments: |
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Potential Adjustment Events: |
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An Extraordinary Dividend shall not constitute a Potential Adjustment Event. For the avoidance of doubt, a cash dividend on the Shares that differs from expected dividends as of the first Trading Day of the Forward Hedge Selling Period for such Transaction shall not be a Potential Adjustment Event under Section 11.2(e)(vii) of the Equity Definitions with respect to such Transaction. |
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Extraordinary Dividend: |
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For any Transaction, any dividend or distribution on the Shares with an ex-dividend date occurring on any day following the first Trading Day of the Forward Hedge Selling Period for such Transaction (other than (i) any dividend or distribution of the type described in Section 11.2(e)(i) or Section 11.2(e)(ii)(A) of the Equity Definitions or (ii) a regular, quarterly cash dividend in an amount equal to or less than the Regular Dividend Amount for such calendar quarter for such Transaction that has an ex-dividend date no earlier than the Forward Price Reduction Date occurring in the relevant month for such Transaction). |
Regular Dividend Amount: |
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For each Transaction and for each calendar quarter from and including the calendar quarter in which the first Trading Day of the Forward Hedge Selling Period for such Transaction occurs to and including the calendar quarter in which the Maturity Date occurs, the amount set forth under the heading “Regular Dividend Amounts” in the Accepted Placement Notice for such Transaction and for such calendar quarter (or, if no such amount is specified, zero), as specified in Schedule I to the Supplemental Confirmation for such Transaction. For the avoidance of doubt, Counterparty may not specify a Regular Dividend Amount in an Accepted Placement Notice for a particular calendar quarter that exceeds the Forward Price Reduction Amount for the Forward Price Reduction Date that occurs in such calendar quarter (or, if none, that exceeds zero). |
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Method of Adjustment: |
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Calculation Agent Adjustment |
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Extraordinary Events: |
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Extraordinary Events: |
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The consequences that would otherwise apply under Article 12 of the Equity Definitions (as modified herein) to any applicable Extraordinary Event (excluding any Failure to Deliver, Increased Cost of Hedging, Increased Cost of Stock Borrow, Loss of Stock Borrow or any Extraordinary Event that also constitutes a Bankruptcy Termination Event, but including, for the avoidance of doubt, any other applicable Additional Disruption Event) shall not apply. |
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Tender Offer: |
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Applicable; provided that Section 12.1(d) of the Equity Definitions shall be amended by replacing the reference therein to “10%” with a reference to “20%.” |
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Delisting: |
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In addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it shall also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, the NASDAQ Global Select Market or the NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed, re- traded or re-quoted on any such exchange or quotation system, such exchange or quotation system shall be deemed to be the Exchange. |
Additional Disruption Events: |
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Change in Law: |
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Applicable; provided that (A) any determination as to whether (i) the adoption of or any change in any applicable law or regulation (including, without limitation, any tax law) or (ii) the promulgation of or any change in or announcement or statement of the formal or informal interpretation by any court, tribunal or regulatory authority with competent jurisdiction of any applicable law or regulation (including any action taken by a taxing authority), in each case, constitutes a “Change in Law” shall be made without regard to Section 739 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 or any similar legal certainty provision in any legislation enacted, or rule or regulation promulgated, on or after the Trade Date, (B) Section 12.9(a)(ii) of the Equity Definitions is hereby amended (i) by adding the words “(including, for the avoidance of doubt and without limitation, adoption or promulgation of new regulations authorized or mandated by existing statute)” after the word “regulation” in the second line thereof and (ii) by replacing the words “the interpretation” with the words “or announcement or statement of any formal or informal interpretation” in the third line thereof and (C) the words “, unless the illegality is due to an act or omission of the party seeking to elect termination of the Transaction with the intent to avoid its obligations under the terms of the Transaction” are added immediately following the word “Transaction” in the fifth line thereof; and provided further that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by adding the phrase “and/or Hedge Position” after the word “Shares” in clause (X) thereof and (iii) by immediately following the word “Transaction” in clause (X) thereof, adding the phrase “in the manner contemplated by the Hedging Party on the Trade Date.” |
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Failure to Deliver: |
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Applicable. |
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Hedging Disruption: |
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Applicable |
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Increased Cost of Hedging: |
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Applicable; provided that Section 12.9(b)(vi) of the Equity Definitions shall be amended by (i) adding “or” before clause (B) of the second sentence thereof, (ii) deleting clause (C) of the second sentence thereof and (iii) deleting the third and fourth sentences thereof. |
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Increased Cost of Stock Borrow: |
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Applicable; provided that Section 12.9(b)(v) of the Equity Definitions shall be amended by (i) adding “or” before clause (B) of the second sentence thereof, (ii) deleting clause (C) of the second sentence thereof and (iii) deleting the third, fourth and fifth sentences thereof. For the avoidance of doubt, upon the announcement of any event that, if consummated, would result in a Merger Event or Tender Offer, the term “rate to borrow Shares” as used in Section 12.9(a)(viii) of the Equity Definitions shall include any commercially reasonable cost borne or amount payable by the Hedging Party in respect of maintaining or reestablishing its hedge position with respect to the relevant Transaction, including, but not limited to, any assessment or other amount payable by the Hedging Party to a lender of Shares in respect of any merger or tender offer premium, as applicable. |
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Initial Stock Loan Rate: |
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For each Transaction, as specified in the Supplemental Confirmation for such Transaction. |
Loss of Stock Borrow: |
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Applicable; provided that Section 12.9(b)(iv) of the Equity Definitions shall be amended by (i) deleting clause (A) of the first sentence thereof in its entirety and (ii) replacing the words “neither the Non-Hedging Party nor the Lending Party lends” with “the Lending Party does not lend” in the second sentence thereof. The Lending Party may not be the Issuer or an affiliate of the Issuer. |
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Maximum Stock Loan Rate: |
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For each Transaction, as specified in the Supplemental Confirmation for such Transaction. |
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Hedging Party: |
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For all applicable Additional Disruption Events, Dealer. |
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Determining Party: |
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For all applicable Extraordinary Events, Dealer. |
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Early Valuation: |
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Early Valuation: |
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For any Transaction, notwithstanding anything
to the contrary herein, in the Agreement, in any Supplemental Confirmation or in the Equity Definitions, at any time (x) following
the occurrence of (1) a Hedging Event with respect to such Transaction, (2) the declaration by Issuer of an Extraordinary Dividend,
or (3) an ISDA Event with respect to such Transaction or (y) if an Excess Section 13 Ownership Position, an Excess NYSE
Ownership Position or an Excess Regulatory Ownership Position exists, Dealer (or, in the case of such an ISDA Event that is an Event of
Default or Termination Event, the party entitled to designate an Early Termination Date in respect of such event pursuant to Section 6
of the Agreement) shall have the right to designate any Scheduled Trading Day to be the “Early Valuation Date” for such Transaction,
in which case the provisions set forth in this “Early Valuation” section shall apply to such Transaction, which right
shall be, other than in the case of an Event of Default under Section 5(a)(vii) of the Agreement with respect to which Dealer
is the sole Defaulting Party, in lieu of those specified in Section 6 of the Agreement. For the avoidance of doubt, any amount calculated
pursuant to this “Early Valuation” section as a result of an Extraordinary Dividend shall not be adjusted by the value associated
with such Extraordinary Dividend.
Dealer represents and warrants to and agrees
with Counterparty that (i) based upon advice of counsel, Dealer (A) does not know of the existence on the first Trading Day
of the relevant Forward Hedge Selling Period of an Excess Section 13 Ownership Position, an Excess NYSE Ownership Position or an
Excess Regulatory Ownership Position and (B) based on reasonable internal inquiry in the ordinary course of Dealer’s business
does not know on the first Trading Day of the relevant Forward Hedge Selling Period of any event or circumstance that will cause the
occurrence of an Excess Section 13 Ownership Position, an Excess NYSE Ownership Position or an Excess Regulatory Ownership Position
on any day during the term of such Transaction; and (ii) Dealer will not knowingly cause the occurrence of an Excess Section 13
Ownership Position, an Excess NYSE Ownership Position or an Excess Regulatory Ownership Position on any day during the term of any Transaction
for the purpose, in whole or in part, of causing the occurrence of an Early Valuation Date. |
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If
an Early Valuation Date for a Transaction occurs on a date that is not during an Unwind Period for such Transaction, then such Early
Valuation Date shall be a Valuation Date for a Physical Settlement of such Transaction, and the number of Settlement Shares for such
Settlement shall be the Number of Shares on such Early Valuation Date; provided that Dealer may in its sole discretion permit Counterparty
to elect Cash Settlement or Net Share Settlement in respect of such Transaction. Notwithstanding anything to the contrary in this Master
Confirmation, any Supplemental Confirmation, the Agreement or the Equity Definitions, if Dealer designates an Early Valuation Date with
respect to a Transaction (1) following the occurrence of an ISDA Event and such Early Valuation Date is to occur before the date
that is one Settlement Cycle after the last day of the Forward Hedge Selling Period for such Transaction or (2) prior to the Counterparty’s
execution of the Supplemental Confirmation relating to such Transaction, then, for purposes of such Early Valuation Date, (i) a
Supplemental Confirmation relating to such Transaction reasonably completed by Dealer shall, notwithstanding the provisions under Section 3
below, be deemed to be effective; and (ii) in the case of (1), the Forward Price shall be deemed to be the Initial Forward Price
(calculated assuming that the last Trading Day of such Forward Hedge Selling Period were the day immediately following the date Dealer
so notifies Counterparty of such designation of an Early Valuation Date for purposes of such Early Valuation Date).
If an Early Valuation Date for a Transaction occurs
during an Unwind Period for such Transaction, then (i) (A) the last Unwind Date of such Unwind Period shall be deemed to be
such Early Valuation Date, (B) a Settlement shall occur in respect of such Unwind Period, and the Settlement Method elected by Counterparty
in respect of such Settlement shall apply, and (C) the number of Settlement Shares for such Settlement shall be the number of Unwound
Shares for such Unwind Period on such Early Valuation Date, and (ii) (A) such Early Valuation Date shall be a Valuation Date
for an additional Physical Settlement of such Transaction (provided that Dealer may in its sole discretion elect that the Settlement Method
elected by Counterparty for the Settlement described in clause (i) of this sentence shall apply) and (B) the number of Settlement
Shares for such additional Settlement shall be the number of Remaining Shares on such Early Valuation Date.
Notwithstanding the foregoing, in the case of
a Nationalization or Merger Event, if at the time of the related Relevant Settlement Date the Shares have changed into cash or any other
property or the right to receive cash or any other property, the Calculation Agent shall adjust the nature of the Shares as it determines
appropriate to account for such change such that the nature of the Shares is consistent with what shareholders receive in such event.
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ISDA Event: |
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(i) Any Event of Default or Termination Event, other than an Event of Default or Termination Event that also constitutes a Bankruptcy Termination Event, that gives rise to the right of either party to designate an Early Termination Date pursuant to Section 6 of the Agreement or (ii) the announcement of any event or transaction on or after the first Trading Day of the Forward Hedge Selling Period for such Transaction that, if consummated, would result in a Merger Event, Tender Offer, Nationalization, Insolvency, Delisting or Change in Law, in each case, as determined by the Calculation Agent; provided that, in the case of a Merger Event, only an announcement of such event or transaction by Counterparty will constitute an ISDA Event. |
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Amendment to Merger Event: |
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Section 12.1(b) of the Equity Definitions is hereby amended by deleting the remainder of such Section beginning with the words “in each case if the Merger Date is on or before” in the fourth to last line thereof. |
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Hedging Event: |
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In respect of any Transaction, the occurrence or existence of any of the following events on or following the first Trading Day of the Forward Hedge Selling Period: (i) (x) a Loss of Stock Borrow in connection with which Counterparty does not refer the Hedging Party to a satisfactory Lending Party that lends Shares in the amount of the Hedging Shares within the required time period as provided in Section 12.9(b) (iv) of the Equity Definitions or (y) a Hedging Disruption, (ii) (A) an Increased Cost of Stock Borrow or (B) an Increased Cost of Hedging in connection with which, in the case of sub-clause (A) or (B), Counterparty does not elect, and so notify the Hedging Party of its election, in each case, within the required time period to either amend such Transaction pursuant to Section 12.9(b)(v)(A) or Section 12.9(b)(vi) (A) of the Equity Definitions, as applicable, or pay an amount determined by the Calculation Agent that corresponds to the relevant Price Adjustment pursuant to Section 12.9(b)(v)(B) or Section 12.9(b)(vi)(B) of the Equity Definitions, as applicable, or (iii) a Market Disruption Event during an Unwind Period for such Transaction and the continuance of such Market Disruption Event for at least eight Scheduled Trading Days. In respect of any Transaction, if a Hedging Event occurs or exists with respect to such Transaction on or after the first Trading Day of the Forward Hedge Selling Period (as each such term is defined in the Equity Distribution Agreement) for such Transaction and prior to the Trade Date for such Transaction, the Calculation Agent may reduce the Initial Forward Price to account for such Hedging Event and any costs or expenses reasonably incurred by Dealer as a result of such Hedging Event. |
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Remaining Shares: |
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For any Transaction, on any day, the Number of Shares for such Transaction as of such day (or, if such day occurs during an Unwind Period for such Transaction, the Number of Shares for such Transaction as of such day minus the Unwound Shares for such Transaction for such Unwind Period on such day). |
Unwound Shares: |
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For any Transaction, for any Unwind Period in respect of such Transaction on any day, the aggregate number of Shares with respect to which Dealer has unwound its commercially reasonable hedge position in respect of such Transaction in connection with the related Settlement as of such day. |
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Acknowledgements: |
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Non-Reliance: |
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Applicable |
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Agreements and Acknowledgements Regarding Hedging Activities: |
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Applicable |
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Additional Acknowledgements: |
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Applicable |
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Transfer: |
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Notwithstanding anything to the contrary in the Agreement, Dealer may assign, transfer and set over all rights, title and interest, powers, privileges and remedies of Dealer under any Transaction to (A) an affiliate of Dealer wholly owned by, wholly owning, or under 100% common control with, Dealer, whose obligations hereunder are fully and unconditionally guaranteed by [Dealer] [Dealer’s Ultimate Parent Company], or (B) an affiliate of Dealer, directly or indirectly wholly owned by, directly or indirectly wholly owning, or under 100% direct or indirect common control with, Dealer, with a long-term issuer rating equal to or better than the credit rating of Dealer at the time of transfer without the consent of Counterparty; provided that (i) at the time of such assignment or transfer, Counterparty would not, as a result of such assignment or transfer, reasonably be expected (A) to be required to pay (including a payment in kind) to such transferee or assignee an amount in respect of an Indemnifiable Tax greater than the amount Counterparty would have been required to pay to Dealer in the absence of such assignment or transfer or (B) to receive a payment (including a payment in kind) from such transferee or assignee an amount less than the amount Counterparty would have been entitled to receive in the absence of such assignment or transfer, (ii) Dealer shall have caused the assignee or transferee to make such Payee Tax Representations (as set forth in Part 2(b) of the Agreement) and to provide such tax documentation as may be reasonably requested by Counterparty to permit Counterparty to determine that the transfer complies with the requirements of clause (i) in this paragraph, (iii) any assignee or transferee would be eligible to provide a U.S. Internal Revenue Service Form W-9 or W-8ECI with respect to any payments or deliveries under the Agreement, and (iv) such assignment or transfer would not at the time, as a result of such transfer or assignment, reasonably be expected to require Counterparty to take any additional action or incur any additional obligation, cost or expense to ensure the continued fulfillment of Counterparty’s representations, warranties and covenants set forth herein, in each case as to such assignee or transferee. |
Calculation Agent: |
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Dealer; provided that, following the occurrence and during the continuation of an Event of Default pursuant to Section 5(a)(vii) of the Agreement with respect to which Dealer is the sole Defaulting Party, Counterparty shall have the right to select a leading dealer in the market for U.S. corporate equity derivatives reasonably acceptable to Dealer to replace Dealer as Calculation Agent, and the parties shall work in good faith to execute any appropriate documentation required by such replacement Calculation Agent. Following any determination or calculation by the Calculation Agent hereunder, upon a written request by Counterparty, the Calculation Agent will, within a commercially reasonable period of time following such request, provide to Counterparty by e-mail to the e-mail address provided by Counterparty in such written request a report (in a commonly used file format for the storage and manipulation of financial data) displaying in reasonable detail the basis for such determination or calculation, as the case may be; provided that Dealer shall not be required to disclose any proprietary or confidential models of Dealer or any information that is proprietary or subject to contractual, legal or regulatory obligations to not disclose such information. |
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Counterparty Payment/Delivery Instructions: |
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To be provided by Counterparty. |
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Dealer Payment/Delivery Instructions: |
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To be provided by Dealer. |
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Counterparty’s Contact Details for Purpose of Giving Notice: |
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To be provided by Counterparty. |
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Dealer’s Contact Details for Purpose of Giving Notice: |
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Office: |
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3. Effectiveness.
The effectiveness of each
Supplemental Confirmation and the related Transaction on the Effective Date for such Supplemental Confirmation shall be subject to the
satisfaction (or waiver by Dealer) of the following conditions:
(a) the
representations and warranties of Counterparty, the Operating Partnership and the Manager contained in the Equity Distribution Agreement,
and any certificate delivered pursuant thereto by Counterparty, the Operating Partnership or the Manager shall be true and correct on
such Effective Date as if made as of such Effective Date;
(b) Counterparty
shall have performed all of the obligations required to be performed by it under the Equity Distribution Agreement on or prior to such
Effective Date;
(c) all
of the conditions set forth in Section 9 of the Equity Distribution Agreement shall have been satisfied;
(d) the
effective date of the Accepted Placement Notice (the “Placement Date”) shall have occurred as provided in the Equity
Distribution Agreement;
(e) all
of the representations and warranties of Counterparty hereunder and under the Agreement shall be true and correct on such Effective Date
as if made as of such Effective Date;
(f) Counterparty
shall have performed all of the obligations required to be performed by it hereunder and under the Agreement on or prior to such Effective
Date, including without limitation its obligations under Section 6 hereof; and
(g) Counterparty
shall, if requested by Dealer prior to the commencement of the Forward Hedge Selling Period, have delivered to Dealer an opinion of Maryland
counsel in form and substance reasonably satisfactory to Dealer, with respect to the matters set forth in Section 3(a)(i)—(iv) of
the Agreement and that the maximum number of Shares initially issuable under such Transaction have been duly authorized and, upon issuance
pursuant to the terms of such Transaction, will be validly issued, fully paid and nonassessable.
Notwithstanding the foregoing or any other provision of this Master
Confirmation or any Supplemental Confirmation, if in respect of any Transaction (x) on or prior to 9:00 a.m., New York City time,
on any Settlement Date (as defined in the Equity Distribution Agreement), in connection with Dealer establishing Dealer’s commercially
reasonable hedge position in respect of such Transaction Dealer, in Dealer’s sole judgment, Dealer is unable, after using commercially
reasonable efforts, to borrow and deliver for sale the full number of Shares to be borrowed and sold pursuant to the Equity Distribution
Agreement on such Settlement Date or (y) in Dealer’s sole judgment, Dealer would incur a stock loan cost of more than a rate
equal to the Maximum Stock Loan Rate for such Transaction with respect to all or any portion of such full number of Shares, the effectiveness
of the related Supplemental Confirmation and such Transaction shall be limited to the number of Shares Dealer is so able to borrow in
connection with establishing its commercially reasonable hedge position of such Transaction at a cost of not more than a rate equal to
the Maximum Stock Loan Rate for such Transaction, which, for the avoidance of doubt, may be zero.
4. Additional
Mutual Representations and Warranties. In addition to the representations and warranties in the Agreement, each party represents
and warrants to the other party that it is an “eligible contract participant,” as defined in the U.S. Commodity Exchange Act
(as amended), and an “accredited investor” as defined in Section 2(a)(15)(ii) of the Securities Act of 1933 (as
amended) (the “Securities Act”), and is entering into each Transaction hereunder as principal and not for the benefit
of any third party.
5. Additional
Representations and Warranties of Counterparty, the Operating Partnership and the Manager. The representations and warranties of Counterparty,
the Operating Partnership and the Manager set forth in Section 5 of the Equity Distribution Agreement are true and correct as of
the date hereof, each Placement Date, each Trade Date for any Transaction and each “Forward Hedge Settlement Date” (as defined
in the Equity Distribution Agreement), and are hereby deemed to be repeated to Dealer as if set forth herein. In addition to the representations
and warranties in Section 5 of the Equity Distribution Agreement, the Agreement and those contained elsewhere herein, Counterparty
represents and warrants to Dealer, and agrees with Dealer, that:
(a) without
limiting the generality of Section 13.1 of the Equity Definitions, it acknowledges that Dealer is not making any representations
or warranties with respect to the treatment of any Transaction, including without limitation ASC Topic 260, Earnings Per Share,
ASC Topic 815, Derivatives and Hedging, ASC Topic 480, Distinguishing Liabilities from Equity, ASC 815-40, Derivatives
and Hedging — Contracts in Entity’s Own Equity (or any successor issue statements) or under the Financial Accounting
Standards Board’s Liabilities & Equity Project;
(b) Counterparty
shall not take any action to reduce or decrease the number of authorized and unissued Shares below the sum of (i) the aggregate Number
of Shares across all Transactions hereunder plus (ii) the total number of Shares issuable upon settlement (whether
by net share settlement or otherwise) of any other transaction or agreement to which it is a party;
(c) Counterparty
will not repurchase any Shares if, immediately following such repurchase, the aggregate Number of Shares across all Transactions hereunder
would be equal to or greater than 4.5% of the number of then-outstanding Shares and it will notify Dealer promptly upon the announcement
or consummation of any repurchase of Shares in an amount that, taken together with the amount of all repurchases since the date of the
last such notice exceeds 0.5% of the number of then-outstanding Shares (or, in the case of the first such notice would result in the aggregate
Number of Shares across all Transactions hereunder being equal to or greater than 3.5% of the number of then-outstanding Shares);
(d) it
is not entering into this Master Confirmation or any Supplemental Confirmation to create actual or apparent trading activity in the Shares
(or any security convertible into or exchangeable for Shares), or to raise or depress or otherwise manipulate the price of the Shares
(or any security convertible into or exchangeable for Shares) for the purpose of inducing the purchase or sale of the Shares (or any security
convertible into or exchangeable for Shares) by others;
(e) it
is not aware of any material non-public information regarding itself or the Shares; it is entering into this Master Confirmation and each
Supplemental Confirmation and will provide any Settlement Notice in good faith and not as part of a plan or scheme to evade compliance
with Rule 10b-5 or any other provision of the federal securities laws; it has not entered into or altered any hedging transaction
relating to the Shares corresponding to or offsetting any Transaction; and it has consulted with its own advisors as to the legal aspects
of its adoption and implementation of this Master Confirmation and each Supplemental Confirmation under Rule 10b5-1 under the Exchange
Act (“Rule 10b5-1”);
(f) as
of the date hereof and the Trade Date for each Transaction no state or local (including non-U.S. jurisdictions) law, rule, regulation
or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without
limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding
(however defined) Shares; provided that Counterparty makes no such representation or warranty regarding any such requirement
that is applicable generally to the ownership of equity securities by Dealer;
(g) as
of the date hereof, the Trade Date for each Transaction and the date of any payment or delivery by Counterparty or Dealer under any Transaction,
it is not and will not be “insolvent” (as such term is defined under Section 101(32) of the Bankruptcy Code), nor will
Counterparty be rendered “insolvent” as a result of the transactions contemplated hereby and by each Supplemental Confirmation
or its performance of the terms hereof or thereof;
(h) it
is not as of the date hereof, and on the Trade Date for each Transaction and after giving effect to the transactions contemplated hereby
and by each Supplemental Confirmation will not be, required to register as an “investment company” as such term is defined
in the Investment Company Act of 1940, as amended;
(i) as
of the date hereof and the Trade Date for each Transaction, it: (i) is an “institutional account” as defined in FINRA
Rule 4512(c); and (ii) is capable of evaluating investment strategies involving a security or securities, and will exercise
independent judgment in evaluating any recommendations of Dealer or its associated persons;
(j) Counterparty
is, and shall during the terms of the Transactions maintain its status as, a real estate investment trust under the U.S. Internal Revenue
Code of 1986, as amended (the “Code”); and
(k) IT
UNDERSTANDS AS OF THE DATE HEREOF AND AS OF THE TRADE DATE FOR EACH TRANSACTION THAT EACH TRANSACTION IS SUBJECT TO COMPLEX RISKS WHICH
MAY ARISE WITHOUT WARNING AND MAY AT TIMES BE VOLATILE AND THAT LOSSES MAY OCCUR QUICKLY AND IN UNANTICIPATED MAGNITUDE
AND IS WILLING TO ACCEPT SUCH TERMS AND CONDITIONS AND ASSUME (FINANCIALLY AND OTHERWISE) SUCH RISKS.
6. Additional
Covenants of Counterparty.
(a) Counterparty
acknowledges and agrees that any Shares delivered by Counterparty to Dealer on any Settlement Date or Net Share Settlement Date for any
Transaction will be (i) newly issued, (ii) approved for listing or quotation on the Exchange, subject to official notice of
issuance, and (iii) pursuant to the terms of the Interpretive Letter (as defined below), may be used by Dealer (or an affiliate of
Dealer) to securities lenders from whom Dealer (or an affiliate of Dealer) borrowed Shares in connection with hedging its exposure to
such Transaction, will be freely saleable without further registration or other restrictions under the Securities Act in the hands of
those securities lenders, irrespective of whether any such stock loan is effected by Dealer or an affiliate of Dealer. Accordingly, Counterparty
agrees that any Shares so delivered will not bear a restrictive legend and will be deposited in, and the delivery thereof shall be effected
through the facilities of, the Clearance System. In addition, Counterparty represents and agrees that any such Shares shall be, upon such
delivery, duly and validly authorized, issued and outstanding, fully paid and nonassessable, free of any lien, charge, claim or other
encumbrance and not subject to any preemptive or similar rights.
(b) Counterparty
agrees that Counterparty shall not enter into or alter any hedging transaction relating to the Shares corresponding to or offsetting any
Transaction. Without limiting the generality of the provisions set forth opposite the caption “Unwind Activities” in Section 2
of this Master Confirmation, Counterparty acknowledges that it has no right to, and agrees that it will not seek to, control or influence
Dealer’s decision to make any “purchases or sales” (within the meaning of Rule 10b5-1(c)(1) (i)(B)(3)) under
or in connection with any Transaction, including, without limitation, Dealer’s decision to enter into any hedging transactions.
(c) Counterparty
acknowledges and agrees that any amendment, modification or waiver of this Master Confirmation or any Supplemental Confirmation must be
effected in accordance with the requirements for the amendment or termination of a “plan” as defined in Rule 10b5-1(c).
Without limiting the generality of the foregoing, any such amendment, modification or waiver shall be made in good faith and not as part
of a plan or scheme to evade the compliance with federal securities laws including, without limitation, Rule 10b-5, and no such amendment,
modification or waiver shall be made at any time at which Counterparty is aware of any material non-public information regarding Counterparty
or the Shares.
(d) Counterparty
shall promptly provide notice thereof to Dealer (i) upon the occurrence of any event that would constitute an Event of Default or
a Termination Event in respect of which Counterparty is a Defaulting Party or an Affected Party, as the case may be, and (ii) upon
announcement of any event that, if consummated, would constitute an Extraordinary Event, an Event of Default or Potential Adjustment Event.
(e) Neither
Counterparty nor any of its “affiliated purchasers” (as defined by Rule 10b-18 under the Exchange Act (“Rule 10b-18”))
shall take or refrain from taking any action (including, without limitation, any direct purchases by Counterparty or any of its affiliates)
that would cause any purchases of Shares by Dealer or any of its affiliates in connection with any Cash Settlement or Net Share Settlement
of any Transaction not to meet the requirements of the safe harbor provided by Rule 10b-18 as if such purchases were made by Counterparty.
Without limiting the generality of the foregoing, during any Unwind Period for any Transaction, except with the prior written consent
of Dealer, Counterparty will not, and will cause its affiliated purchasers (as defined in Rule 10b-18) not to, directly or indirectly
(including, without limitation, by means of a derivative instrument) purchase, offer to purchase, place any bid or limit order that would
effect a purchase of, or announce or commence any tender offer relating to, any Shares (or equivalent interest, including a unit of beneficial
interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable for the Shares.
(f) Counterparty
will not engage in any “distribution” (as such term is defined in Regulation M promulgated under the Exchange Act (“Regulation
M”)) in respect of Shares or any security with respect to which the Shares are a “reference security” (as such term
is defined in Regulation M) that would cause a “restricted period” (as defined in Regulation M) to occur during any Unwind
Period for any Transaction.
(g) Counterparty
shall: (i) not, during any Unwind Period, make, and will use its commercially reasonable efforts to not permit to be made to the
extent within its control, any public announcement (as defined in Rule 165(f) under the Securities Act) of any Merger Transaction
unless such public announcement is made prior to the opening or after the close of the regular trading session on the Exchange; (ii) promptly
(but in any event prior to the next opening of the regular trading session on the Exchange) notify Dealer following any such announcement
that such announcement has been made; (iii) promptly (but in any event prior to the next opening of the regular trading session on
the Exchange) provide Dealer with written notice specifying (A) Counterparty’s average daily Rule 10b-18 Purchases (as
defined in Rule 10b-18) during the three full calendar months immediately preceding the announcement date for the Merger Transaction
that were not effected through Dealer or its affiliates and (B) the number of Shares purchased pursuant to the proviso in Rule 10b-18(b)(4) under
the Exchange Act for the three full calendar months preceding such announcement date. Such written notice shall be deemed to be a certification
by Counterparty to Dealer that such information is true and correct. In addition, Counterparty shall promptly notify Dealer of the earlier
to occur of the completion of such transaction and the completion of the vote by target shareholders. Counterparty acknowledges that any
such notice may result in a Regulatory Disruption, a Trading Condition or, if such notice relates to an event that is also an ISDA Event,
an Early Valuation, or may affect the length of any ongoing Unwind Period. Accordingly, Counterparty acknowledges that its delivery of
such notice must comply with the standards set forth in Section 6(c) above. “Merger Transaction” means any
merger, acquisition or similar transaction involving a recapitalization as contemplated by Rule 10b-18(a)(13)(iv) under the
Exchange Act. For the avoidance of doubt, a Merger Transaction or the announcement thereof shall not give either party the right to designate
an Early Valuation Date for any Transaction and/or to accelerate or preclude an election by Counterparty of Physical Settlement for any
Settlement of any Transaction, unless such Merger Transaction or the announcement thereof is also an ISDA Event.
(h) Counterparty
will promptly execute each properly completed Supplemental Confirmation delivered to Counterparty by Dealer.
(i) Counterparty
represents to Dealer that Dealer, solely in its capacity as “Forward Purchaser” or “Forward Seller” (each as defined
in the Equity Distribution Agreement) and solely with respect to its entering into and consummating the transactions contemplated by this
Master Confirmation and the Equity Distribution Agreement (including any “Forward Contract” thereunder) either (x) will
not collectively with the other Forward Purchasers or Forward Sellers under the Alternative Distribution Agreements (as defined in the
Equity Distribution Agreement) be a “Person” (as defined in Counterparty’s Articles of Amendment and Restatement, as
amended (the “Charter”)) by virtue of being a member of a “group” (as referenced in the definition of Person
in the Charter) with such Forward Purchasers or Forward Sellers or both; or (y) may, to the extent necessary to consummate the transactions
contemplated by this Master Confirmation and the Equity Distribution Agreement (including any “Forward Contract” thereunder),
have “Beneficial Ownership” and “Constructive Ownership” of Shares in excess of the related “Ownership Limit”
(each as defined in the Charter) by virtue of entering into transactions described in Article VII of the Charter.
7. Termination
on Bankruptcy. The parties hereto agree that, notwithstanding anything to the contrary in the Agreement or the Equity Definitions,
each Transaction constitutes a contract to issue a security of Counterparty as contemplated by Section 365(c)(2) of the Bankruptcy
Code and that a Transaction and the obligations and rights of Counterparty and Dealer (except for any liability as a result of breach
of any of the representations or warranties provided by Counterparty in Section 4 or Section 5 above) shall immediately terminate,
without the necessity of any notice, payment (whether directly, by netting or otherwise) or other action by Counterparty or Dealer, if,
on or prior to the final Settlement Date, Cash Settlement Payment Date or Net Share Settlement Date, as the case may be, for such Transaction
an Insolvency Filing occurs or any other proceeding commences with respect to Counterparty under the Bankruptcy Code (a “Bankruptcy
Termination Event”).
8. Additional
Provisions.
(a) Dealer
acknowledges and agrees that Counterparty’s obligations under the Transactions are not secured by any collateral and that neither
this Master Confirmation nor any Supplemental Confirmation is intended to convey to Dealer rights with respect to the transactions contemplated
hereby and by any Supplemental Confirmation that are senior to the claims of common stockholders in any U.S. bankruptcy proceedings of
Counterparty; provided that nothing herein shall limit or shall be deemed to limit Dealer’s right to pursue remedies
in the event of a breach by Counterparty of its obligations and agreements with respect to this Master Confirmation, any Supplemental
Confirmation or the Agreement; provided further that nothing herein shall limit or shall be deemed to limit Dealer’s
rights in respect of any transaction other than the Transactions.
(b) [Reserved].
(c) The
parties hereto intend for:
(i) each
Transaction to be a “securities contract” as defined in Section 741(7) of the Bankruptcy Code, and the parties hereto
to be entitled to the protections afforded by, among other Sections, Sections 362(b)(6), 362(b)(27), 362(o), 546(e), 546(j), 555 and 561
of the Bankruptcy Code;
(ii) the
rights given to Dealer pursuant to “Early Valuation” in Section 2 above to constitute “contractual rights”
to cause the liquidation of a “securities contract” and to set off mutual debts and claims in connection with a “securities
contract,” as such terms are used in Sections 555 and 362(b)(6) of the Bankruptcy Code;
(iii) any
cash, securities or other property provided as performance assurance, credit support or collateral with respect to the
Transactions to constitute “margin payments” and “transfers” under a “securities contract” as defined
in the Bankruptcy Code;
(iv) all
payments for, under or in connection with the Transactions, all payments for Shares and the transfer of Shares to constitute “settlement
payments” and “transfers” under a “securities contract” as defined in the Bankruptcy Code; and
(v) any
or all obligations that either party has with respect to this Master Confirmation, any Supplemental Confirmation or the Agreement to constitute
property held by or due from such party to margin, guaranty or settle obligations of the other party with respect to the transactions
under the Agreement (including the Transactions) or any other agreement between such parties.
(d) Notwithstanding
any other provision of the Agreement, this Master Confirmation or any Supplemental Confirmation, in no event will Counterparty be required
to deliver in the aggregate in respect of all Settlement Dates, Net Share Settlement Dates or other dates on which Shares are delivered
in respect of any amount owed under any Transaction a number of Shares greater than 1.5 times the Number of Shares for such Transaction
as of the Trade Date for such Transaction (the “Capped Number”). The Capped Number shall be subject to adjustment only
on account of (x) Potential Adjustment Events of the type specified in (1) Sections 11.2(e)(i) through (vi) of the
Equity Definitions or (2) Section 11.2(e)(vii) of the Equity Definitions so long as, in the case of this sub-clause (2),
such event is within Issuer’s control and (y) Merger Events requiring corporate action of Issuer (or any surviving entity of
the Issuer hereunder in connection with any such Merger Event). Counterparty represents and warrants to Dealer (which representation and
warranty shall be deemed to be repeated for all Transactions on each day that any Transaction is outstanding) that the aggregate Capped
Number across all Transactions hereunder is equal to or less than the number of authorized but unissued Shares that are not reserved for
future issuance in connection with transactions in the Shares (other than the Transactions) on the date of the determination of such aggregated
Capped Number. In the event Counterparty shall not have delivered the full number of Shares otherwise deliverable under any Transaction
as a result of this Section 8(d) (the resulting deficit for such Transaction, the “Deficit Shares”), Counterparty
shall be continually obligated to deliver Shares, from time to time until the full number of Deficit Shares have been delivered pursuant
to this paragraph, on a pro rata basis across all Transactions hereunder, when, and to the extent that, (A) Shares are repurchased,
acquired or otherwise received by Counterparty or any of its subsidiaries after the date hereof (whether or not in exchange for cash,
fair value or any other consideration), (B) authorized and unissued Shares reserved for issuance in respect of other transactions
prior to such date which prior to the relevant date become no longer so reserved or (C) Counterparty additionally authorizes any
unissued Shares that are not reserved for transactions other than the Transactions (such events as set forth in clauses (A), (B) and
(C) above, collectively, the “Share Issuance Events”). Counterparty shall promptly notify Dealer of the occurrence
of any of the Share Issuance Events (including the number of Shares subject to clause (A), (B) or (C) and the corresponding
number of Shares to be delivered for each Transaction) and, as promptly as reasonably practicable, deliver such Shares thereafter. Counterparty
shall not, until Counterparty’s obligations under the Transactions have been satisfied in full, use any Shares that become available
for potential delivery to Dealer as a result of any Share Issuance Event for the settlement or satisfaction of any transaction or obligation
other than the Transactions or reserve any such Shares for future issuance for any purpose other than to satisfy Counterparty’s
obligations to Dealer under the Transactions.
(e) The
parties intend for this Master Confirmation and each Supplemental Confirmation to constitute a “Contract” as described in
the letter dated October 6, 2003 submitted on behalf of Goldman, Sachs & Co. to Paula Dubberly of the staff of the Securities
and Exchange Commission (the “Staff”) to which the Staff responded in an interpretive letter dated October 9,
2003 (the “Interpretive Letter”).
(f) The
parties intend for each Transaction (taking into account purchases of Shares in connection with any Cash Settlement or Net Share Settlement
of any Transaction) to comply with the requirements of Rule 10b5-1(c)(1)(i)(A) under the Exchange Act and for this Master Confirmation
and each Supplemental Confirmation to constitute a binding contract or instruction satisfying the requirements of 10b5-1(c) and to
be interpreted to comply with the requirements of Rule 10b5-1(c).
(g) [Reserved.]
(h) Counterparty
acknowledges that:
(i) during
the term of the Transactions, Dealer and its affiliates may buy or sell Shares or other securities or buy or sell options or futures contracts
or enter into swaps or other derivative securities in order to establish, adjust or unwind its hedge position with respect to the Transactions;
(ii) Dealer
and its affiliates may also be active in the market for the Shares and derivatives linked to the Shares other than in connection with
hedging activities in relation to the Transactions, including acting as agent or as principal and for its own account or on behalf of
customers;
(iii) Dealer
shall make its own determination as to whether, when or in what manner any hedging or market activities in Counterparty’s securities
shall be conducted and shall do so in a manner that it deems appropriate to hedge its price and market risk with respect to the Forward
Price and the Settlement Price for each Transaction;
(iv) any
market activities of Dealer and its affiliates with respect to the Shares may affect the market price and volatility of the Shares, as
well as the Forward Price and the Settlement Price for each Transaction, each in a manner that may be adverse to Counterparty; and
(v) each
Transaction is a derivatives transaction; Dealer may purchase or sell shares for its own account at an average price that may be greater
than, or less than, the price received by Counterparty under the terms of the relevant Transaction.
(i) Counterparty
and Dealer agree and acknowledge that: (A) the Transactions contemplated by this Master Confirmation will be entered into in reliance
on the fact that this Master Confirmation and each Supplemental Confirmation hereto form a single agreement between Counterparty and Dealer,
and Dealer would not otherwise enter into such Transactions; (B) this Master Confirmation, together with each Supplemental Confirmation
hereto, is a “qualified financial contract,” as such term is defined in Section 5-701(b)(2) of the General Obligations
Law; (C) each Supplemental Confirmation hereto, regardless of whether transmitted electronically or otherwise, constitutes a “confirmation
in writing sufficient to indicate that a contract has been made between the parties” hereto, as set forth in Section 5-701(b)(3)(b) of
the General Obligations Law; and (D) this Master Confirmation and each Supplemental Confirmation hereto constitute a prior “written
contract,” as set forth in Section 5-701(b)(1) (b) of the General Obligations Law, and each party hereto intends
and agrees to be bound by this Master Confirmation and such Supplemental Confirmation.
(j) Counterparty
and Dealer agree that, upon the effectiveness of any Accepted Placement Notice relating to a Forward (as such term is defined in the Equity
Distribution Agreement), in respect of the Transaction to which such Accepted Placement Notice relates, each of the representations, warranties,
covenants, agreements and other provisions of this Master Confirmation and the Supplemental Confirmation for such Transaction (including,
without limitation, Dealer’s right to designate an Early Valuation Date in respect of such Transaction pursuant to the provisions
opposite the caption “Early Valuation” in Section 2 and the termination of such Transaction following a Bankruptcy Termination
Event as described in Section 7) shall govern, and be applicable to, such Transaction as of the first Trading Day of the Forward
Hedge Selling Period for such Transaction as if the Trade Date for such Transaction were such first Trading Day.
(k) Tax
Matters.
(i) For
the purpose of Section 3(f) of the Agreement:
(A) Dealer
makes the following representations:
(1) [It
is a “U.S. person” (as that term is used in section 1.1441-4(a)(3)(ii) of United States Treasury Regulations) for U.S.
federal income tax purposes.
(2) It
is a [national banking association] [limited liability company] organized and existing under the laws of the [United States of America]
[State of Delaware, is treated as a disregarded entity of a New York corporation for United States federal income tax purposes] and is
an exempt recipient under Treasury Regulation Section 1.6049-4(c)(1)(ii).]
(B) Counterparty
makes the following representations:
(1) It
is a “U.S. person” (as that term is used in section 1.1441-4(a)(3)(ii) of United States Treasury Regulations) for U.S.
federal income tax purposes.
(2) It
is a corporation for U.S. federal income tax purposes and is organized under the laws of the State of Maryland, and is an exempt recipient
under Treasury Regulation Section 1.6049-4(c)(1)(ii)(J).
(ii) Withholding
Tax imposed on payments to non-US counterparties under the United States Foreign Account Tax Compliance Act. “Indemnifiable
Tax,” as defined in Section 14 of the Agreement, shall not include any U.S. federal withholding tax imposed or collected pursuant
to Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereof, any agreement entered
into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant
to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (a “FATCA
Withholding Tax”). For the avoidance of doubt, a FATCA Withholding Tax is a Tax the deduction or withholding of which is required
by applicable law for the purposes of Section 2(d) of the Agreement.
(iii) 871(m) Protocol.
The parties agree that the definitions and provisions contained in the ISDA 2015 Section 871(m) Protocol, as published by ISDA
and as may be amended, supplemented, replaced or superseded from time to time (the “871(m) Protocol”) shall apply
to the Agreement as if the parties had adhered to the 871(m) Protocol as of the effective date of the Agreement.
(iv) Tax
documentation. For the purposes of Sections 4(a)(i) and 4(a)(ii) of the Agreement, Counterparty shall provide to Dealer,
and Dealer shall deliver to Counterparty, a valid and duly executed U.S. Internal Revenue Service Form W-9, or any successor thereto,
(i) on or before the date of execution of this Confirmation; (ii) promptly upon reasonable demand by the other party; and (iii) promptly
upon learning that any such tax form previously provided has become invalid, obsolete, or incorrect. Additionally, Counterparty or Dealer
shall, promptly upon reasonable request by the other party, provide such other tax forms and documents reasonably requested by the other
party.
(v) Change
of Account. Section 2(b) of the Agreement is hereby amended by the addition of the following after the word “delivery”
in the first line thereof: “to another account in the same legal and tax jurisdiction.”
9. Indemnification.
Counterparty and the Operating Partnership agree to indemnify and hold harmless Dealer, its affiliates and its assignees and their respective
directors, officers, employees, agents and controlling persons (Dealer and each such person being an “Indemnified Party”)
from and against any and all losses (excluding, for the avoidance of doubt, financial losses resulting from the economic terms of the
Transactions), claims, damages and liabilities (or actions in respect thereof), joint or several, incurred by or asserted against such
Indemnified Party arising out of, in connection with, or relating to any breach of any covenant or representation made by Counterparty
in this Master Confirmation, any Supplemental Confirmation or the Agreement. Counterparty and the Operating Partnership will not be liable
under the foregoing indemnification provision to the extent that any loss, claim, damage, liability or expense is found in a nonappealable
judgment by a court of competent jurisdiction to have resulted from Dealer’s breach of any covenant or representation made by Dealer
in this Master Confirmation, any Supplemental Confirmation or the Agreement or any willful misconduct, gross negligence or bad faith of
any Indemnified Party. If for any reason the foregoing indemnification is unavailable to any Indemnified Party or insufficient to hold
harmless any Indemnified Party, then Counterparty and the Operating Partnership shall contribute, to the maximum extent permitted by law,
to the amount paid or payable by the Indemnified Party as a result of such loss, claim, damage or liability. In addition, Counterparty
and the Operating Partnership will reimburse any Indemnified Party for all reasonable expenses (including reasonable counsel fees and
expenses) as they are incurred in connection with the investigation of, preparation for or defense or settlement of any pending or threatened
claim covered by this Section 9 or any action, suit or proceeding arising therefrom, whether or not such Indemnified Party is a party
thereto and whether or not such claim, action, suit or proceeding is initiated or brought by or on behalf of Counterparty or the Operating
Partnership. Counterparty and the Operating Partnership also agree that no Indemnified Party shall have any liability to Counterparty,
the Operating Partnership or any person asserting claims on behalf of or in right of Counterparty or the Operating Partnership in connection
with or as a result of any matter referred to in this Master Confirmation and any Supplemental Confirmation except to the extent that
any losses, claims, damages, liabilities or expenses incurred by Counterparty or the Operating Partnership result from the Dealer’s
breach of any covenant or representation made by the Dealer in this Master Confirmation, any Supplemental Confirmation or the Agreement
or any willful misconduct, gross negligence or bad faith of any Indemnified Party. The provisions of this Section 9 shall survive
the completion of the Transactions contemplated by this Master Confirmation and any Supplemental Confirmation and any assignment and/or
delegation of the Transactions made pursuant to the Agreement, this Master Confirmation or any Supplemental Confirmation shall inure to
the benefit of any permitted assignee of Dealer. For the avoidance of doubt, any payments due as a result of this provision may not be
used to set off any obligation of Dealer upon settlement of the Transactions.
10. Beneficial
Ownership. Notwithstanding anything to the contrary in the Agreement, this Master Confirmation or any Supplemental Confirmation, in
no event shall Dealer be entitled to receive, or be deemed to receive, or, with respect to clause (y) below, have the “right
to acquire” (within the meaning of NYSE Rule 312.04(g)), Shares to the extent that, upon such receipt of such Shares, (i) the
“beneficial ownership” (within the meaning of Section 13 of the Exchange Act and the rules promulgated thereunder)
of Shares by Dealer, any of its affiliates’ business units subject to aggregation with Dealer for purposes of the “beneficial
ownership” test under Section 13 of the Exchange Act and all persons who may form a “group” (within the meaning
of Rule 13d-5(b)(1) under the Exchange Act) with Dealer with respect to “beneficial ownership” of any Shares (collectively,
“Dealer Group”) would be equal to or greater than the lesser of (x) 4.5% of the outstanding Shares (such condition,
an “Excess Section 13 Ownership Position”), and (y) 4.9% of the outstanding Shares as of the Trade Date for
any Transaction, which shall be notified by Counterparty to Dealer on or promptly following the Trade Date and set forth in the Supplemental
Confirmation (such number of Shares, the “Threshold Number of Shares” and such condition, the “Excess NYSE
Ownership Position”) or (ii) Dealer, Dealer Group or any person whose ownership position would be aggregated with that
of Dealer or Dealer Group (Dealer, Dealer Group or any such person, a “Dealer Person”) under Sections 3-601 through
3-603 of the Maryland Code (Corporations and Associations) or any state or federal bank holding company or banking laws, or any federal,
state or local laws, regulations or regulatory orders applicable to ownership of Shares (“Applicable Laws”), would
own, beneficially own, constructively own, control, hold the power to vote or otherwise meet a relevant definition of ownership in excess
of a number of Shares equal to (x) the lesser of (A) the maximum number of Shares that would be permitted under Applicable Laws
and (B) the number of Shares that would give rise to reporting or registration obligations or other requirements (including obtaining
prior approval by a state or federal regulator) of a Dealer Person under Applicable Laws and with respect to which such requirements have
not been met or the relevant approval has not been received or that would give rise to any consequences under the constitutive documents
of Counterparty (including, without limitation, Article Ninth of the Charter and any contract or agreement to which Counterparty
is a party), in each case minus (y) 1% of the number of Shares outstanding on the date of determination (such condition
described in clause (ii), an “Excess Regulatory Ownership Position”). If any delivery owed to Dealer under any Transaction
is not made, in whole or in part, as a result of this provision, (i) Counterparty’s obligation to make such delivery shall
not be extinguished and Counterparty shall make such delivery as promptly as practicable after, but in no event later than one Exchange
Business Day after, Dealer gives notice to Counterparty that such delivery would not result in (x) Dealer Group directly or indirectly
so beneficially owning in excess of the lesser of (A) 4.5% of the outstanding Shares and (B) the Threshold Number of Shares
or (y) the occurrence of an Excess Regulatory Ownership Position and (ii) if such delivery relates to a Physical Settlement
of any Transaction, notwithstanding anything to the contrary herein, Dealer shall not be obligated to satisfy the portion of its payment
obligation with respect to such Transaction corresponding to any Shares required to be so delivered until the date Counterparty makes
such delivery.
11. Non-Confidentiality.
The parties hereby agree that (i) effective from the date of commencement of discussions concerning the Transactions, Counterparty
and each of its employees, representatives, or other agents may disclose to any and all persons, without limitation of any kind, the tax
treatment and tax structure of the Transactions and all materials of any kind, including opinions or other tax analyses, provided by Dealer
and its affiliates to Counterparty relating to such tax treatment and tax structure; provided that the foregoing does
not constitute an authorization to disclose the identity of Dealer or its affiliates, agents or advisers, or, except to the extent relating
to such tax structure or tax treatment, any specific pricing terms or commercial or financial information, and (ii) Dealer does not
assert any claim of proprietary ownership in respect of any description contained herein or therein relating to the use of any entities,
plans or arrangements to give rise to a particular United States federal income tax treatment for Counterparty.
12. Restricted
Shares. If Counterparty is unable to comply with the covenant of Counterparty contained in Section 6 above or Dealer otherwise
determines in its reasonable opinion that any Shares to be delivered to Dealer by Counterparty under any Transaction may not be freely
returned by Dealer to securities lenders as described in the covenant of Counterparty contained in Section 6 above or otherwise constitute
“restricted securities” as defined in Rule 144 under the Securities Act, then delivery of any such Settlement Shares
(the “Unregistered Settlement Shares”) shall be effected pursuant to Annex A hereto, unless waived by Dealer.
13. Use
of Shares. Dealer acknowledges and agrees that, except in the case of a Private Placement Settlement, Dealer shall use any Shares
delivered by Counterparty to Dealer on any Settlement Date to return to securities lenders to close out borrowings created by Dealer or
an affiliate of Dealer in connection with Dealer’s (or such affiliate’s) hedging activities related to exposure under the
Transactions or otherwise in compliance with applicable law.
14. Rule 10b-18.
In connection with bids and purchases of Shares in connection with any Net Share Settlement or Cash Settlement of any Transaction, Dealer
shall use commercially reasonable efforts to conduct its activities, or cause its affiliates to conduct their activities, in a manner
consistent with the requirements of the safe harbor provided by Rule 10b-18 under the Exchange Act, as if such provisions were applicable
to such purchases and taking into account any applicable Securities and Exchange Commission no-action letters as appropriate, and subject
to any delays between the execution and reporting of a trade of the Shares on the Exchange and other circumstances beyond Dealer’s
control.
15. Governing
Law. Notwithstanding anything to the contrary in the Agreement, the Agreement, this Master Confirmation, any Supplemental Confirmation
and all matters arising in connection with the Agreement this Master Confirmation and any Supplemental Confirmation shall be governed
by, and construed and enforced in accordance with, the laws of the State of New York (without reference to its choice of laws doctrine
other than Title 14 of Article 5 of the New York General Obligations Law).
16. Set-Off.
Each party waives any and all rights it may have to set-off delivery or payment obligations it owes to the other party under any Transaction
against any delivery or payment obligations owed to it by the other party, whether arising under the Agreement, under any other agreement
between parties hereto, by operation of law or otherwise.
17. Staggered
Settlement. Notwithstanding anything to the contrary herein, Dealer may, by prior notice to Counterparty, satisfy its obligation to
deliver any Shares or other securities on any date due (an “Original Delivery Date”) by making separate deliveries
of Shares or such securities, as the case may be, at more than one time on or prior to such Original Delivery Date, so long as the aggregate
number of Shares and other securities so delivered on or prior to such Original Delivery Date is equal to the number required to be delivered
on such Original Delivery Date.
18. Waiver
of Trial by Jury. EACH OF COUNTERPARTY AND DEALER HEREBY IRREVOCABLY WAIVES (ON ITS OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, ON BEHALF OF ITS STOCKHOLDERS) ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT
OR OTHERWISE) ARISING OUT OF OR RELATING TO THE TRANSACTION OR THE ACTIONS OF DEALER OR ITS AFFILIATES IN THE NEGOTIATION, PERFORMANCE
OR ENFORCEMENT HEREOF.
19. Jurisdiction.
THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK IN CONNECTION WITH ALL MATTERS RELATING HERETO AND WAIVE ANY OBJECTION TO THE LAYING OF VENUE IN,
AND ANY CLAIM OF INCONVENIENT FORUM WITH RESPECT TO, THESE COURTS. NOTHING IN THIS PROVISION SHALL PROHIBIT A PARTY FROM BRINGING AN ACTION
TO ENFORCE A MONEY JUDGMENT IN ANY OTHER JURISDICTION.
20. Counterparts.
This Master Confirmation and any Supplemental Confirmation may be executed in any number of counterparts, all of which shall constitute
one and the same instrument, and any party hereto may execute this Master Confirmation and any Supplemental Confirmation by signing and
delivering one or more counterparts.
21. Delivery
of Cash. For the avoidance of doubt, nothing in this Master Confirmation or any Supplemental Confirmation shall be interpreted as
requiring Counterparty to deliver cash in respect of the settlement of the Transactions, except in circumstances where the required cash
settlement thereof is permitted for classification of the contract as equity by ASC 815-40, Derivatives and Hedging — Contracts
in Entity’s Own Equity, as in effect on the Trade Date (including, for the avoidance of doubt, where Counterparty elects Cash
Settlement). For the avoidance of doubt, the preceding sentence shall not be construed as limiting Section 9 hereunder or any damages
that may be payable by Counterparty as a result of a breach of this Master Confirmation or any Supplemental Confirmation.
22. Adjustments.
For the avoidance of doubt, whenever the Calculation Agent, the Hedging Party or the Determining Party is called upon to make an adjustment
pursuant to the terms of this Master Confirmation, any Supplemental Confirmation or the Equity Definitions to take into account the effect
of an event, the Calculation Agent, the Hedging Party or the Determining Party, as applicable, shall make such adjustment by reference
to the effect of such event on the Hedging Party, assuming that the Hedging Party maintains a commercially reasonable hedge position at
the time of the event.
23. Other
Forward and Similar Dealer Transactions. Counterparty agrees that (x) it shall not cause to occur, or permit to exist, any Forward
Hedge Selling Period at any time there is (1) a “Forward Hedge Selling Period” (or equivalent term) relating to any other
issuer forward sale or similar transaction (including, without limitation, any “Transaction” under (as and defined under)
any substantially identical master forward confirmation) with any financial institution other than Dealer (an “Other Forward
Transaction”), (2) any “Unwind Period” (or equivalent term) hereunder under any Other Forward Transaction or
under any other issuer forward sale or similar transaction with Dealer (a “Similar Dealer Transaction”) or (3) any
other period in which Counterparty directly or indirectly issues and sells Shares pursuant to an underwriting agreement (or similar agreement
including, without limitation, any equity distribution agreement) (such period, a “Selling Period”) that Counterparty
enters into with any financial institution other than Dealer, and (y) Counterparty shall not cause to occur, or permit to exist,
an Unwind Period at any time there is an “Unwind Period” (or equivalent term) under any Other Forward Transaction or any Similar
Dealer Transaction, a “Forward Hedge Selling Period” (or equivalent term) relating to any Transaction, any Other Forward Transaction
or any Similar Dealer Transaction, or any Selling Period.
24. Designation
by Dealer. Notwithstanding any other provision of this Master Confirmation or any Supplemental Confirmation to the contrary requiring
or allowing Dealer to purchase, sell, receive or deliver any Shares or other securities to or from Counterparty, Dealer may designate
any of its affiliates to purchase, sell, receive or deliver such Shares or other securities and otherwise to perform Dealer’s obligations
in respect of any Transaction and any such designee may assume such obligations. Dealer shall be discharged of its obligations to Counterparty
only to the extent of any such performance.
Counterparty hereby agrees
(a) to check this Master Confirmation carefully and promptly upon receipt so that errors or discrepancies can be promptly identified
and rectified and (b) to confirm that the foregoing (in the exact form provided by Dealer) correctly sets forth the terms of the
agreement between Dealer and Counterparty hereunder, by manually signing this Master Confirmation or this page hereof as evidence
of agreement to such terms and providing the other information requested herein and promptly returning an executed copy to us.
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Yours faithfully, |
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[DEALER] |
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By: |
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Name: |
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Title: |
[Signature Page to the Forward Sale Confirmation]
Agreed and accepted by:
ALPINE INCOME PROPERTY TRUST, INC.
Agreed and accepted with respect to Sections 5 and 9 hereof and
Annex A hereto by
ALPINE INCOME PROPERTY OP, LP
By: |
Alpine Income Property GP, LLC, its sole general partner |
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By: Alpine Income Property Trust, Inc., its sole member |
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Agreed and accepted with respect to Sections 5 hereof and
Annex A hereto by
ALPINE INCOME PROPERTY MANAGER, LLC
By: |
CTO Realty Growth, Inc., its sole member |
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Name: |
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Title: |
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[Signature Page to the Forward Sale Confirmation]
ANNEX A
PRIVATE PLACEMENT PROCEDURES
If Counterparty delivers Unregistered
Settlement Shares pursuant to Section 12 above (a “Private Placement Settlement”), then:
(a) all
Unregistered Settlement Shares shall be delivered to Dealer (or any affiliate of Dealer designated by Dealer) pursuant to the exemption
from the registration requirements of the Securities Act provided by Section 4(a)(2) thereof;
(b) as
of or prior to the date of delivery, Dealer and any potential purchaser of any such shares from Dealer (or any affiliate of Dealer designated
by Dealer) identified by Dealer shall be afforded a commercially reasonable opportunity to conduct a due diligence investigation with
respect to Counterparty customary in scope for private placements of equity securities of similar size (including, without limitation,
the right to have made available to them for inspection all financial and other records, pertinent corporate documents and other information
reasonably requested by them); provided that prior to receiving or being granted access to any such information, Dealer,
such affiliate of Dealer or such potential purchaser, as the case may be, may be required by Counterparty to enter into a customary nondisclosure
agreement with Counterparty in respect of any such due diligence investigation;
(c) as
of the date of delivery, Counterparty, the Operating Partnership and the Manager shall enter into an agreement (a “Private Placement
Agreement”) with Dealer (or any affiliate of Dealer designated by Dealer) in connection with the private placement of such shares
by Counterparty to Dealer (or any such affiliate) and the private resale of such shares by Dealer (or any such affiliate), substantially
similar to private placement purchase agreements customary for private placements of equity securities of similar size, in form and substance
commercially reasonably satisfactory to Dealer, which Private Placement Agreement shall include, without limitation, provisions substantially
similar to those contained in such private placement purchase agreements relating, without limitation, to the indemnification of, and
contribution in connection with the liability of, Dealer and its affiliates and obligations to use best efforts to obtain customary opinions,
accountants’ comfort letters and lawyers’ negative assurance letters, and shall provide for the payment by Counterparty of
all commercially reasonable fees and expenses in connection with such resale, including all commercially reasonable fees and expenses
of counsel for Dealer, and shall contain representations, warranties, covenants and agreements of Counterparty reasonably necessary or
advisable to establish and maintain the availability of an exemption from the registration requirements of the Securities Act for such
resales; and
(d) in
connection with the private placement of such shares by Counterparty to Dealer (or any such affiliate) and the private resale of such
shares by Dealer (or any such affiliate), Counterparty shall, if so requested by Dealer, prepare, in cooperation with Dealer, a private
placement memorandum in form and substance reasonably satisfactory to Dealer.
In the case of a Private Placement
Settlement, Dealer shall, in its good faith discretion, adjust the amount of Unregistered Settlement Shares to be delivered to Dealer
hereunder in a commercially reasonable manner to reflect the fact that such Unregistered Settlement Shares may not be freely returned
to securities lenders by Dealer and may only be saleable by Dealer at a discount to reflect the lack of liquidity in Unregistered Settlement
Shares.
If Counterparty delivers any
Unregistered Settlement Shares in respect of a Transaction, Counterparty agrees that (i) such Shares may be transferred by and among
Dealer and its affiliates and (ii) after the applicable “holding period” within the meaning of Rule 144(d) under
the Securities Act has elapsed after the applicable Settlement Date, Counterparty shall promptly remove, or cause the transfer agent for
the Shares to remove, any legends referring to any transfer restrictions from such Shares upon delivery by Dealer (or such affiliate of
Dealer) to Counterparty or such transfer agent of any seller’s and broker’s representation letters customarily delivered by
Dealer or its affiliates in connection with resales of restricted securities pursuant to Rule 144 under the Securities Act, each
without any further requirement for the delivery of any certificate, consent, agreement, opinion of counsel, notice or any other document,
any transfer tax stamps or payment of any other amount or any other action by Dealer (or such affiliate of Dealer).
SCHEDULE
A
SUPPLEMENTAL CONFIRMATION
To: |
Alpine Income Property Trust, Inc. |
From: |
[DEALER] |
Re: |
Issuer Share Forward Sale Transaction |
Date: |
[ ], 20[ ] |
Ladies and Gentlemen:
The purpose of this Supplemental
Confirmation is to confirm the terms and conditions of the Transaction entered into between [DEALER] (“Dealer”) and
Alpine Income Property Trust, Inc. (“Counterparty”) (together, the “Contracting Parties”) on
the Trade Date specified below. This Supplemental Confirmation is a binding contract between Dealer and Counterparty as of the relevant
Trade Date for the Transaction referenced below.
1. This
Supplemental Confirmation supplements, forms part of, and is subject to the Master Confirmation dated as of October 20, 2023 (the
“Master Confirmation”) between the Contracting Parties, as amended and supplemented from time to time. All provisions
contained in the Master Confirmation govern this Supplemental Confirmation except as expressly modified below.
2. The
terms of the Transaction to which this Supplemental Confirmation relates are as follows:
Trade Date: |
[ ], 20[ ] |
Effective Date: |
[ ], 20[ ] |
Maturity Date: |
[ ], 20[ ] |
Number of Shares: |
[ ] |
Initial Forward Price: |
USD [ ] |
Spread: |
[ . ]% |
Volume-Weighted Hedge Price: |
USD [ ] |
Threshold Price: |
USD [ ] |
Initial Stock Loan Rate: |
[ ] basis points per annum |
Maximum Stock Loan Rate: |
[ ] basis points per annum |
Threshold Number of Shares: |
[ ] |
Counterparty hereby agrees
(a) to check this Supplemental Confirmation carefully and promptly upon receipt so that errors or discrepancies can be promptly identified
and rectified and (b) to confirm that the foregoing (in the exact form provided by Dealer) correctly sets forth the terms of the
agreement between Dealer and Counterparty hereunder, by manually signing this Supplemental Confirmation or this page hereof as evidence
of agreement to such terms and providing the other information requested herein and promptly returning an executed copy to us.
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Yours faithfully, |
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[DEALER] |
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By: |
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Name: |
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Title: |
Agreed and accepted by:
ALPINE INCOME PROPERTY TRUST, INC. |
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By: |
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Name: |
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Title: |
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Schedule I
FORWARD PRICE REDUCTION AMOUNTS
Forward Price Reduction Date: |
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Forward Price Reduction Amount: |
[ ], 20[ ] |
|
USD |
[ ] |
[ ], 20[ ] |
|
USD |
[ ] |
[ ], 20[ ] |
|
USD |
[ ] |
[ ], 20[ ] |
|
USD |
[ ] |
REGULAR DIVIDEND AMOUNTS
For any calendar month ending on or prior to [ ]: |
|
USD[ ] |
For any calendar month ending after [ ]: |
|
USD[ ] |
Exhibit 1.3
ALPINE INCOME PROPERTY
TRUST, INC.
(a Maryland corporation)
$150,000,000 of Common Stock
(Par Value $0.01)
AMENDMENT NO. 1 TO THE
EQUITY DISTRIBUTION AGREEMENT
October 20,
2023
Janney Montgomery Scott LLC
1717 Arch Street
Philadelphia, Pennsylvania 19103
To the addressee set forth above:
Reference is made to the
Equity Distribution Agreement, dated October 21, 2022 (the “Agreement”), by and among Alpine
Income Property Trust, Inc., a Maryland corporation (the “Company”), Alpine Income Property Manager, LLC,
a Delaware limited liability company (the “Adviser”), and Alpine Income Property OP, LP, a Delaware limited partnership
(the “Operating Partnership”) and Janney Montgomery Scott LLC (the “Manager” and, together with
the Company, the Adviser and the Operating Partnership, the “Parties”). Capitalized terms used but not defined herein
shall have the meaning assigned to them in the Agreement.
In light of the Company’s
termination of the Equity Distribution Agreements, dated October 21, 2022, by and among the
Company, the Adviser and the Operating Partnership, and each of Robert W. Baird & Co. Incorporated (“Baird”)
and Stifel, Nicolaus & Company, Incorporated (“Stifel”), and entry into new Equity Distribution Agreements,
dated the date hereof, by and among the Company, the Adviser and the Operating Partnership, and
each of Baird and Stifel as manager, forward seller and forward purchaser, the Parties desire to amend the Agreement through this
Amendment No. 1 to the Equity Distribution Agreement (this “Amendment”) to modify the definition of certain defined
terms set forth in the Agreement and used herein and to make certain other changes to the Agreement with effect on and after the date
hereof (the “Effective Date”).
1.
Amendments to the Agreement. The Parties agree, from and after the Effective Date, that:
a. The last paragraph of Section 1 of the Agreement is hereby deleted in its entirety and replaced with the following:
“The Company, the Adviser and
the Operating Partnership have also entered into separate equity distribution agreements (collectively, as each may be amended from time
to time, the “Alternative Distribution Agreements”), dated as of October 21, 2022, as amended on October 20,
2023, with each of Raymond James & Associates, Inc., B. Riley Securities, Inc., BMO Capital Markets Corp., Jefferies
LLC, JonesTrading Institutional Services LLC, KeyBanc Capital Markets Inc., Regions Securities LLC and Truist Securities, Inc.,
and dated as of October 20, 2023, with each of Robert W. Baird & Co. Incorporated and Stifel, Nicolaus & Company, Incorporated
(and, as applicable, their respective affiliates) (each, in its capacity as agent and/or principal, forward seller and forward purchaser
thereunder, an “Alternative Manager”), for the issuance (in the case of the Issuance Securities) or borrowing (in
the case of the Forward Hedge Securities) 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.”
3.
Governing Law. THIS AMENDMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AMENDMENT 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. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
4.
Counterparts. This Amendment 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., www.docusign.com) 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.
5.
Agreement Remains in Effect. Except as provided in this Amendment, all provisions, terms and conditions of the Agreement shall
remain in full force and effect. As amended hereby, the Agreement is ratified and confirmed in all respects.
[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, the Adviser and the Company in accordance with its terms.
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Very truly yours, |
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ALPINE INCOME PROPERTY TRUST, INC. |
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By: |
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Name: Matthew M. Partridge |
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Title: Senior Vice President, Chief Financial Officer and
Treasurer |
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ALPINE INCOME PROPERTY OP, LP |
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By: Alpine Income Property GP, LLC, its sole general partner
By: Alpine Income Property Trust, Inc., its sole member |
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By: |
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Name: Matthew M. Partridge |
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Title: Senior Vice President, Chief Financial Officer and Treasurer |
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ALPINE INCOME PROPERTY MANAGER, LLC |
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By: CTO Realty Growth, Inc., its sole member |
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By: |
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Name: Matthew M. Partridge |
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Title: Senior Vice President, Chief Financial Officer and Treasurer |
The foregoing Amendment No. 1 to the
Agreement is hereby confirmed and accepted as of the date first written above. |
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JANNEY MONTGOMERY SCOTT LLC, AS MANAGER |
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By: |
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Name: |
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Title: |
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Signature
Page to Amendment No. 1 to the Equity Distribution Agreement
Exhibit 1.4
ALPINE INCOME PROPERTY TRUST, INC.
(a Maryland corporation)
$150,000,000 of Common Stock
(Par Value $0.01)
AMENDMENT NO. 1 TO THE EQUITY DISTRIBUTION
AGREEMENT
October 20,
2023
[ ·
]
[ ·
]
[ ·
]
To the addressee set forth above:
Reference is made to the Equity
Distribution Agreement, dated October 21, 2022 (the “Agreement”), by and among Alpine
Income Property Trust, Inc., a Maryland corporation (the “Company”), Alpine Income Property Manager, LLC,
a Delaware limited liability company (the “Adviser”), and Alpine Income Property OP, LP, a Delaware limited partnership
(the “Operating Partnership”), [FORWARD PURCHASER] (in its capacity as forward purchaser under any Forward Contract,
the “Forward Purchaser”) and [FORWARD SELLER] (in its capacity as agent for the Company and/or principal in connection
with the offering and sale of any Issuance Securities pursuant to the Agreement, the “Manager,” and in its capacity
as agent for the Forward Purchaser in connection with the offering and sale of any Forward Hedge Securities pursuant to the Agreement,
the “Forward Seller” and, together with the Company, the Adviser, the Operating Partnership and the Forward Purchaser,
the “Parties”). Capitalized terms used but not defined herein shall have the meaning assigned to them in the Agreement.
In light of the Company’s
termination of the Equity Distribution Agreements, dated October 21, 2022, by and among the
Company, the Adviser and the Operating Partnership, and each of Robert W. Baird & Co. Incorporated (“Baird”)
and Stifel, Nicolaus & Company, Incorporated (“Stifel”), and entry into new Equity Distribution Agreements,
dated the date hereof, by and among the Company, the Adviser and the Operating Partnership, and
each of Baird and Stifel as manager, forward seller and forward purchaser, the Parties desire to amend the Agreement through this
Amendment No. 1 to the Equity Distribution Agreement (this “Amendment”) to modify the definition of certain defined
terms set forth in the Agreement and used herein and to make certain other changes to the Agreement with effect on and after the date
hereof (the “Effective Date”).
1. Amendments to the Agreement. The Parties agree, from and after the Effective Date, that:
a. The last paragraph of Section 1 of the Agreement is hereby deleted in its entirety and replaced with the following:
“The Company, the Adviser and
the Operating Partnership have also entered into separate equity distribution agreements (collectively, as each may be amended from time
to time, the “Alternative Distribution Agreements”), dated as of October 21, 2022, as amended on October 20,
2023, with each of [Raymond James & Associates, Inc., B. Riley Securities, Inc., BMO Capital Markets Corp., Janney
Montgomery Scott LLC, Jefferies LLC, JonesTrading Institutional Services LLC, KeyBanc Capital Markets Inc., Regions Securities LLC and
Truist Securities, Inc.], and dated as of October 20, 2023, with each of Robert W. Baird & Co. Incorporated and Stifel,
Nicolaus & Company, Incorporated (and, as applicable, their respective affiliates) (each, in its capacity as agent and/or
principal, forward seller and forward purchaser thereunder, an “Alternative Manager”), for the issuance (in the case
of the Issuance Securities) or borrowing (in the case of the Forward Hedge Securities) 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.”
3. Governing
Law. THIS AMENDMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AMENDMENT 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. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
4. Counterparts.
This Amendment 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., www.docusign.com) 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.
5. Agreement
Remains in Effect. Except as provided in this Amendment, all provisions, terms and conditions of the Agreement shall remain in full force
and effect. As amended hereby, the Agreement is ratified and confirmed in all respects.
[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 Forward Seller, the Forward Purchaser, the Operating Partnership, the Adviser and
the Company in accordance with its terms.
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Very truly yours, |
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ALPINE INCOME PROPERTY TRUST, INC. |
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By: |
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Name: Matthew M. Partridge |
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Title: Senior Vice President, Chief Financial Officer
and Treasurer |
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|
ALPINE INCOME PROPERTY OP, LP |
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By: Alpine Income Property GP, LLC, its sole general partner |
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By: Alpine Income Property Trust, Inc., its sole member |
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By: |
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Name: Matthew M. Partridge |
|
Title: Senior Vice President, Chief Financial Officer
and Treasurer |
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ALPINE INCOME PROPERTY MANAGER, LLC |
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By: CTO Realty Growth, Inc., its sole member |
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|
By: |
|
|
Name: Matthew M. Partridge |
|
Title: Senior Vice President, Chief Financial Officer and Treasurer |
Signature Page to Amendment No. 1 to the Equity Distribution Agreement
The foregoing Amendment No. 1 to the Agreement is hereby confirmed and accepted as of the date first written above. |
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[ · ], AS MANAGER |
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By: |
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Name: |
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Title: |
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[ · ], AS FORWARD SELLER |
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By: |
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Name: |
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Title: |
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[ · ], AS FORWARD PURCHASER |
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By: |
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Name: |
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Title: |
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Signature Page to Amendment No. 1
to the Equity Distribution Agreement
Exhibit 5.1
October 20, 2023
Alpine Income Property Trust, Inc.
369 N. New York Avenue, Suite 201
Winter Park, FL 32789
Re: Registration
Statement on Form S-3 (Registration No. 333-274724)
Ladies and Gentlemen:
We have served as Maryland counsel to Alpine Income
Property Trust, Inc., a Maryland corporation (the “Company”), in connection with certain matters of Maryland law arising
out of the registration and issuance by the Company of shares (the “Shares”) of common stock, $0.01 par value per share (the
“Common Stock”), having an aggregate offering price of up to $150,000,000 (of which the Company has offered and sold Shares
having an aggregate offering price of $40,456,052 as of the date hereof) in one or more at-the-market offerings. The offering and select
Shares are covered by the above-referenced Registration Statement on Form S-3, and all amendments thereto (the “Registration
Statement”), filed with the U.S. Securities and Exchange Commission (the “Commission”) by the Company under the Securities
Act of 1933, as amended (the “Securities Act”).
In connection with our representation of the Company,
and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction,
of the following documents (hereinafter collectively referred to as the “Documents”):
1. The
Registration Statement, in the form in which it was filed with the Commission under the Securities Act;
2. The
Company’s Prospectus, dated September 29, 2023, as supplemented by a Prospectus Supplement, dated as of October 20, 2023,
relating to the offering and sale of the Shares, each in the form in which it was transmitted to the Commission for filing pursuant to
Rule 424(b) under the Securities Act;
3. The
charter of the Company (the “Charter”), certified by the State Department of Assessments and Taxation of Maryland (the “SDAT”);
4. The
Third Amended and Restated Bylaws of the Company (the “Bylaws”), certified as of the date hereof by an officer of the Company;
5. A
certificate of the SDAT as to the good standing of the Company, dated as of a recent date;
Alpine Income Property Trust, Inc.
October 20, 2023
Page 2
6. Resolutions
(the “Resolutions”) adopted by the Board of Directors of the Company, relating to, among other matters, (a) the registration,
offering and sale of the Shares, (b) the issuance of the Shares and Confirmation Shares (as defined below) and (c) the execution
and delivery of the Distribution Agreements and the Master Forward Confirmations (each as define below), and the performance by the Company
of its obligations thereunder, certified as of the date hereof by an officer of the Company;
7. Ten
separate Equity Distribution Agreements (each, a “Forward Distribution Agreement” and, together, the “Forward Distribution
Agreements”), (a) dated October 21, 2022, as amended October 20, 2023, by and among the Company, Alpine Income Property
Manager, LLC, a Delaware limited liability company (the “Manager”), Alpine Income Property OP, LP, a Delaware limited partnership
(the “Limited Partnership”), and (i) each of Raymond James & Associates, Inc., BMO Capital Markets Corp.,
B. Riley Securities, Inc., Jefferies LLC, JonesTrading Institutional Services LLC, KeyBanc Capital Markets Inc., Regions Securities
LLC and Truist Securities, Inc., as manager and as forward seller, and (ii) each of Raymond James & Associates, Inc.,
Bank of Montreal, B. Riley Securities, Inc., Jefferies LLC, JonesTrading Institutional Services LLC, KeyBanc Capital Markets Inc.,
Regions Securities LLC and Truist Bank, as forward purchaser (the “2022 Forward Purchasers”), and (b) dated October 20,
2023, by and among the Company, the Manager, the Limited Partnership, and (i) each of Robert W. Baird & Co. Incorporated
and Stifel, Nicolaus & Company, Incorporated, as manager and as forward seller, and (ii) each of Robert W. Baird &
Co. Incorporated and Stifel, Nicolaus & Company, Incorporated, as forward purchaser (the “2023 Forward Purchasers”
and, together with the 2022 Forward Purchasers, individually, a “Forward Purchaser” and, collectively, the “Forward
Purchasers”);
8. The
Equity Distribution Agreement, dated October 21, 2022, as amended October 20, 2023 (the “Non-Forward Distribution Agreement”
and, collectively with the Forward Distribution Agreements, the “Distribution Agreements”), by and among the Company, the
Manager, the Limited Partnership and Janney Montgomery Scott LLC;
9. Ten
separate master forward confirmations (each, a “Master Forward Confirmation” and, together, the “Master Forward Confirmations”),
(a) dated October 21, 2022, by and among the Company the Manager, the Limited Partnership and each of Raymond James &
Associates, Inc., Bank of Montreal, B. Riley Securities, Inc., Jefferies LLC, JonesTrading Institutional Services LLC, KeyBanc
Capital Markets Inc., Regions Securities LLC and Truist Bank, and (b) dated October 20, 2023, by and among the Company the Manager,
the Limited Partnership and each of Robert W. Baird & Co. Incorporated and Stifel, Nicolaus & Company, Incorporated;
Alpine Income Property Trust, Inc.
October 20, 2023
Page 3
10. The
form of supplemental confirmation (the “Form of Supplemental Confirmation”) that may be entered into by and between the
Company and the applicable Forward Purchaser in relation to any forward stock purchase transaction (a “Forward”);
11. A
certificate executed by an officer of the Company, dated as of the date hereof; and
12. Such
other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions,
limitations and qualifications stated herein.
In expressing the opinion set forth below, we have
assumed the following:
1. Each
individual executing any of the Documents, whether on behalf of such individual or another person, is legally competent to do so.
2. Each
individual executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so.
3. Each
of the parties (other than the Company) executing any of the Documents has duly and validly executed and delivered each of the Documents
to which such party is a signatory, and such party’s obligations set forth therein are legal, valid and binding and are enforceable
in accordance with all stated terms.
4. All
Documents submitted to us as originals are authentic. The form and content of all Documents submitted to us as unexecuted drafts do not
differ in any respect relevant to this opinion from the form and content of such Documents as executed and delivered. All Documents submitted
to us as certified or photostatic copies conform to the original documents. All signatures on all Documents are genuine. All public records
reviewed or relied upon by us or on our behalf are true and complete. All representations, warranties, statements and information contained
in the Documents are true and complete. There has been no oral or written modification of or amendment to any of the Documents, and there
has been no waiver of any provision of any of the Documents, by action or omission of the parties or otherwise.
5. The
Shares and Confirmation Shares will not be issued or transferred in violation of the restrictions on transfer and ownership contained
in Article VII of the Charter.
Alpine Income Property Trust, Inc.
October 20, 2023
Page 4
6. Upon
the issuance of any of the Shares or Confirmation Shares, the total number of shares of Common Stock issued and outstanding will not
exceed the total number of shares of Common Stock that the Company is then authorized to issue under the Charter.
7. Each
supplemental confirmation entered into by and between the Company and any Forward Purchaser in relation to any Forward (each, a “Forward
Contract”) will not differ in any manner material to this opinion from the Form of Supplemental Confirmation.
Based upon the foregoing, and subject to the assumptions,
limitations and qualifications stated herein, it is our opinion that:
1. The
Company is a corporation duly incorporated and existing under and by virtue of the laws of the State of Maryland and is in good standing
with the SDAT.
2. The
issuance and sale of the Shares by the Company pursuant to the applicable Distribution Agreement, and the issuance and delivery by the
Company of any shares of Common Stock that may be issued, sold and/or delivered by the Company pursuant to any Forward Contract (the “Confirmation
Shares”), have been duly authorized and, when and if issued and delivered in accordance with the applicable Forward Distribution
Agreement and applicable Master Forward Confirmation, any Forward Contract and the Resolutions against payment of the purchase price therefor,
such Shares and Confirmation Shares will be validly issued, fully paid and nonassessable.
The foregoing opinion is limited to the laws of the
State of Maryland and we do not express any opinion herein concerning United States federal law or the laws of any other jurisdiction.
We express no opinion as to the applicability or effect of federal or state securities laws, including the securities laws of the State
of Maryland, or as to federal or state laws regarding fraudulent transfers. To the extent that any matter as to which our opinion is expressed
herein would be governed by the laws of any jurisdiction other than the State of Maryland, we do not express any opinion on such matter.
The opinion expressed herein is subject to the effect of judicial decisions which may permit the introduction of parol evidence to modify
the terms or the interpretation of agreements.
The opinion expressed herein is limited to the matters
specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We assume no obligation to supplement
this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed
herein after the date hereof.
Alpine Income Property Trust, Inc.
October 20, 2023
Page 5
This opinion is being furnished to you for submission
to the Commission as an exhibit to the Company’s Current Report on Form 8-K relating to the Shares (the “Current Report”),
which is incorporated by reference in the Registration Statement. We hereby consent to the filing of this opinion as an exhibit to the
Current Report and to the use of the name of our firm therein. In giving this consent, we do not admit that we are within the category
of persons whose consent is required by Section 7 of the Securities Act.
|
Very truly yours, |
|
|
|
/s/ Venable LLP |
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ALPINE INCOME PROPERTY TRUST, INC.
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0001786117
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Alpine Income Property (NYSE:PINE)
過去 株価チャート
から 5 2024 まで 6 2024
Alpine Income Property (NYSE:PINE)
過去 株価チャート
から 6 2023 まで 6 2024