Common use of Conditions of Agents’ and Forward Purchasers’ Obligations Clause in Contracts

Conditions of Agents’ and Forward Purchasers’ Obligations. The obligations of the Agents and the Forward Purchasers hereunder and under each Confirmation and each Terms Agreement, as applicable, shall be subject, in each of their sole discretion, to the condition that all representations and warranties and other statements of the Company herein or in certificates of any officer of the Company delivered pursuant to the provisions hereof are true and correct as of the time of the execution of this Agreement, the date of any executed Terms Agreement and as of each Representation Date, Applicable Time and Settlement Date, to the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions: (a) The Prospectus Supplement shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act on or prior to the date hereof and in accordance with Section 3(a) of this Agreement, any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; the Registration Statement shall have been filed by the Company with the Commission not earlier than three years prior to the date hereof and became effective upon filing in accordance with Rule 462(e) of the Securities Act Regulations, and no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the form of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Agents and the Forward Purchasers. (b) On every date specified in Section 3(k) of this Agreement (including, without limitation, on every Request Date), F▇▇▇▇, F▇▇▇▇, H▇▇▇▇▇, S▇▇▇▇▇▇ & J▇▇▇▇▇▇▇ LLP, counsel for the Agents and the Forward Purchasers, shall have furnished to the Agents and the Forward Purchasers such written opinion or opinions, dated as of such date, with respect to such matters as the Agents and the Forward Purchasers may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters. In said opinion, F▇▇▇▇, F▇▇▇▇, H▇▇▇▇▇, S▇▇▇▇▇▇ & J▇▇▇▇▇▇▇ LLP may rely as to all matters of Maryland law on the opinion of V▇▇▇▇▇▇ LLP. (c) On every date specified in Section 3(k) of this Agreement (including, without limitation, on every Request Date), G▇▇▇▇▇▇ Procter LLP, counsel for the Company, shall have furnished to the Agents and the Forward Purchasers a written opinion or opinions, dated as of such date, substantially in the forms set forth in Exhibits A-1-A and A-1-B attached hereto and in form and substance satisfactory to the Agents and the Forward Purchasers.

Conditions of Agents’ and Forward Purchasers’ Obligations. The obligations of the Agents and the Forward Purchasers hereunder and under each Confirmation and each Terms Agreement, as applicable, shall be subject, in each of their sole discretion, to the condition that all representations and warranties and other statements of the Company herein or in certificates of any officer of the Company delivered pursuant to the provisions hereof are true and correct as of the time of the execution of this Agreement, the date of any executed Terms Agreement and as of each Representation Date, Applicable Time and Settlement Date, to the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions: (a) The Prospectus Supplement shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act on or prior to the date hereof and in accordance with Section 3(a) of this Agreement, any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; the Registration Statement shall have been filed by the Company with the Commission not earlier than three years prior to the date hereof and became effective upon filing in accordance with Rule 462(e) of the Securities Act Regulations, and no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the form of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Agents and the Forward Purchasers. (b) On every date specified in Section 3(k) of this Agreement (including, without limitation, on every Request Date), F▇▇▇▇, F▇▇▇▇, H▇▇▇▇▇, S▇▇▇▇▇▇ & J▇▇▇▇▇▇▇▇ LLP, counsel for the Agents and the Forward Purchasers, shall have furnished to the Agents and the Forward Purchasers such written opinion or opinions, dated as of such date, with respect to such matters as the Agents and the Forward Purchasers may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters. In said opiniongiving such opinion or opinions, F▇▇▇▇and such counsel may rely, F▇▇▇▇, H▇▇▇▇▇, S▇▇▇▇▇▇ & J▇▇▇▇▇▇▇ LLP may rely as to all matters governed by the laws of Maryland law on jurisdictions other than the laws of the State of New York, the General Corporation Law of the State of Delaware and the federal securities laws of the United States, upon the opinions of counsel satisfactory to the Agents and the Forward Purchasers. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of V▇▇▇▇▇▇ LLPofficers and other representatives of the Company and its subsidiaries and certificates of public officials. (c) On every date specified in Section 3(k) of this Agreement (including, without limitation, on every Request Date), G▇▇▇▇▇▇▇ Procter LLP, counsel for the Company, shall have furnished to the Agents and the Forward Purchasers a written opinion or opinions, dated as of such date, substantially in the forms set forth in Exhibits A-1-A A, A-1-B and A-1-B C attached hereto and in form and substance satisfactory to the Agents and the Forward Purchasers. (d) On every date specified in Section 3(k) of this Agreement (including, without limitation, on every Request Date), ▇▇▇▇▇▇▇▇▇▇ PC, Pennsylvania counsel for the Company, shall have furnished to the Agents and the Forward Purchasers a written opinion or opinions, dated as of such date, substantially in the form set forth in Exhibit A-2 attached hereto and in form and substance satisfactory to the Agents and the Forward Purchasers. (e) At the dates specified in Section 3(l) of this Agreement (including, without limitation, on every Request Date), the independent registered public accounting firm who has audited the financial statements of the Company included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus shall have furnished to the Agents and the Forward Purchasers a letter dated as of the date of delivery thereof and addressed to the Agents and the Forward Purchasers each in form and substance reasonably satisfactory to the Agents and the Forward Purchasers and their counsel, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to agents and underwriters with respect to the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus. (i) Upon commencement of the offering of Shares under this Agreement and on such other dates as reasonably requested by the Agents and the Forward Purchasers, the Company will furnish or cause to be furnished promptly to the Agents and the Forward Purchasers a placement notice in the form attached hereto as Annex II stating the maximum number of Shares and aggregate gross sales price to be sold by the Agent on such day (in any event not in excess of the number or aggregate gross sales price available for issuance under the Prospectus and the currently effective Registration Statement, as authorized from time to time to be issued and sold under this Agreement or any Terms Agreement by the Company’s board of directors, or a duly authorized committee thereof, or in a number in excess of the number of Shares and any Confirmation Shares approved for listing on NASDAQ) the minimum price per Share at which such Shares may be sold and such other terms as contemplated by Annex II, or, in connection with any amendment, revision or modification of such minimum price or maximum Share number or amount, a new certificate with respect thereto and (ii) on each date specified in Section 3(j) or other term (including, without limitation, on every Request Date), the Agents and the Forward Purchasers shall have received a certificate of executive officers of the Company, one of whom shall be the Chief Executive Officer, the President, the Chief Operating Officer, Chief Financial Officer, or any Senior Vice President, dated as of the date thereof, to the effect that (w) there has been no material adverse change as set forth in Section 3(h) since the date as of which information is given in the Prospectus as then amended or supplemented or the Disclosure Package, (x) the representations and warranties in Section 1 of this Agreement are true and correct as of such date, (y) the Company has complied with all of the agreements entered into in connection with the transactions contemplated herein and satisfied all conditions on its part to be performed or satisfied and (z) the condition set forth in Section 6(a) has been satisfied. (g) Since the date of the latest audited financial statements then included or incorporated by reference in the Prospectus and the Disclosure Package, no event or condition of a type described in Section 1(h) hereof shall have occurred or shall exist, which event or condition is not described in the Disclosure Package (excluding any amendment or supplement thereto) and the Prospectus (excluding any amendment or supplement thereto), and the effect of which in the judgment of the applicable Agent makes it impracticable or inadvisable to proceed with the offerings, sale or delivery of the Shares, as the case may be, on the terms and in the manner contemplated by this Agreement or any Confirmation. (h) No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby that prohibits or directly and materially adversely affects any of the transactions contemplated by this Agreement or any Confirmation, and no proceeding shall have been commenced that may have the effect of prohibiting or materially adversely affecting any of the transactions contemplated by this Agreement or any Confirmation. (i) The Company shall have complied with the provisions of Section 3(c) of this Agreement with respect to the timely furnishing of prospectuses. (j) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Applicable Time or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)). (k) The trading of the Common Stock (including without limitation the Shares) shall not have been suspended by the Commission, NASDAQ or FINRA since the immediately preceding Settlement Date or, if there has been no Settlement Date, the Option Closing Date (as defined below), and the Shares shall have been approved for listing or quotation on and shall not have been delisted from NASDAQ. There shall not have occurred (and be continuing in the case of occurrences under clauses (i), (ii) and (iii) below) any of the following: (i) trading generally on the New York Stock Exchange or NASDAQ has been suspended or materially limited; (ii) trading of any securities issued or guaranteed by the Company shall have been suspended on any such exchanges or in any over-the-counter market; (iii) a general moratorium on commercial banking activities in New York declared by either federal or New York state authorities; or (iv) any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis, either within or outside the United States, that, in the sole judgement of Agents or the Forward Purchasers, is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares of the Company. (l) Counsel for the Agents and the Forward Purchasers shall have been furnished with such documents, certificates and opinions as they may reasonably require in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, contained herein, in any Confirmation or in any applicable Terms Agreement; and all proceedings taken by the Company in connection with the issuance and sale of the Shares as contemplated herein or in any applicable Terms Agreement, the Confirmation Shares as contemplated in any Confirmation and in connection with the other transactions contemplated by this Agreement, any such Confirmation or any such Terms Agreement shall be reasonably satisfactory in form and substance to the Agents and the Forward Purchasers, as applicable, and their counsel. (m) The Shares shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule. (n) Prior to any offers or sales of Shares by an Agent as forward seller, the Company shall have executed and delivered the completed Confirmation for such sales to the applicable Forward Purchaser and such Agent, in a form reasonably satisfactory to such Forward Purchaser and Agent. For the avoidance of doubt, so long as a placement notice is not presently outstanding, the Company shall not be required to deliver information under this Section 6; information required hereunder is only required to be delivered prior to the next issuance of a placement notice.

Conditions of Agents’ and Forward Purchasers’ Obligations. The obligations of the Agents and the Forward Purchasers hereunder and under each Confirmation and each Terms Agreement, as applicable, shall be subject, in each of their sole discretion, are subject to the condition that all accuracy of the representations and warranties and other statements on the part of the Company herein or in certificates of any officer of and the Company delivered pursuant to the provisions hereof are true and correct as of the time of the execution of this Agreement, Operating Partnership on the date of hereof, any executed Terms Agreement applicable Representation Date and as of each Representation Date, Applicable Time and Settlement Date, to the condition that performance by the Company shall have performed all and the Operating Partnership of its obligations hereunder theretofore to be performedhereunder, and to the following additional conditions:conditions precedent. (ai) The Prospectus Supplement shall have been filed No stop order with the Commission pursuant to Rule 424(b) under the Securities Act on or prior respect to the date hereof and in accordance with Section 3(a) effectiveness of this Agreement, any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; the Registration Statement shall have been filed by issued under the Company with the Commission not earlier than three years prior to the date hereof and became effective upon filing in accordance with Rule 462(eAct or proceedings initiated under Section 8(d) or 8(e) of the Securities Act RegulationsAct, and no stop order suspending the effectiveness of the Registration Statement directed at or in relation to any part thereof shall have been issued document incorporated by reference therein and no proceeding for that purpose shall have been initiated order preventing or threatened by the Commission and no notice of objection of the Commission to the use of the form of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act shall have been received; no stop order suspending or preventing the use of the Prospectus has been issued by the Commission, no suspension of the qualification of the Shares for offering or sale in any Issuer Free Writing Prospectus shall have jurisdiction or, to the knowledge of the Company, the Operating Partnership, the Agents or the Forward Purchasers, of the initiation or threatening of any proceedings for any of such purposes, has occurred and no proceeding pursuant to Section 8A of the Act has been initiated instituted or, to the knowledge of the Company or the Operating Partnership, threatened by the Commission; (ii) the Registration Statement and all requests for additional information on amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the part statements therein not misleading; (iii) none of the Commission Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall have been complied include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading. (b) Subsequent to the reasonable satisfaction respective dates as of which information is given in the Registration Statement, the Basic Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, no material and unfavorable change, financial or otherwise (other than as referred to in the Registration Statement and Prospectus), in the business, condition or prospects of the Company and the Subsidiaries taken as a whole, in the judgment of the Agents and the Forward Purchasers. , shall occur or become known and no transaction which is material and unfavorable to the Company (b) On every date specified other than as referred to in Section 3(k) of this Agreement (including, without limitation, on every Request Datethe Registration Statement and Prospectus), F▇▇▇▇, F▇▇▇▇, H▇▇▇▇▇, S▇▇▇▇▇▇ & J▇▇▇▇▇▇▇ LLP, counsel for in the judgment of the Agents and the Forward Purchasers, shall have furnished been entered into by the Company or any of the Subsidiaries. (c) The Company shall furnish to the Agents and the Forward Purchasers, at every date specified in Section 4(r) of this Agreement, an opinion of Company Counsel, addressed to the Agents and Forward Purchasers, and dated as of such date, and in form satisfactory to the Agents and the Forward Purchasers such written (which shall be substantially in the form set forth in Exhibit A hereto). (d) The Agents and the Forward Purchasers shall have received, at every date specified in Section 4(s) of this Agreement, the favorable opinion or opinionsof Agents’ and Forward Purchasers’ Counsel, addressed to the Agents and the Forward Purchasers, and dated as of such date, with respect to such matters as the Agents and the Forward Purchasers may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters. In said opinion, F▇▇▇▇, F▇▇▇▇, H▇▇▇▇▇, S▇▇▇▇▇▇ & J▇▇▇▇▇▇▇ LLP may rely as to all matters of Maryland law on the opinion of V▇▇▇▇▇▇ LLP. (c) On every date specified in Section 3(k) of this Agreement (including, without limitation, on every Request Date), G▇▇▇▇▇▇ Procter LLP, counsel for the Company, shall have furnished to the Agents and the Forward Purchasers a written opinion or opinions, dated as of such date, substantially in the forms set forth in Exhibits A-1-A and A-1-B attached hereto and in form and substance satisfactory to the Agents and the Forward Purchasers. (e) The Agents and the Forward Purchasers shall have received, at every date specified in Section 4(u) of this Agreement, a certificate of the Secretary of the Company, dated as of such date, and in the form and substance satisfactory to the Agents and the Forward Purchasers. (f) At the dates specified in Section 4(v) of this Agreement, the Agents and the Forward Purchasers shall have received from the accountants letters dated the date of delivery thereof and addressed to the Agents and the Forward Purchasers in the form and substance satisfactory to the Agents and the Forward Purchasers. (g) The Company shall deliver to the Agents and the Forward Purchasers, at every Representation Date specified in Section 4(q) of this Agreement, a certificate of two of its officers to the effect that (i) the representations and warranties of each of the Company and Operating Partnership as set forth in this Agreement are true and correct as of the Representation Date, (ii) each of the Company and the Operating Partnership has performed such of its respective obligations under this Agreement and any Master Confirmation as are to be performed at or before such Representation Date, and (iii) the conditions set forth in paragraphs (a) and (b) of Section 6 have been met. The certificate shall also state that the Primary Shares and any Confirmation Shares have been duly and validly authorized by the Company, that all corporate action required to be taken for the issuance and sale of the Primary Shares and any Confirmation Shares and the registration by the Company of the sale of any Forward Hedge Shares have been validly and sufficiently taken, and that the Company’s Board of Directors or any other body with authority has not revoked, rescinded or otherwise modified or withdrawn such authorization or corporate action. (h) All filings with the Commission required by Rule 424 or Rule 433 under the Act shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433, respectively. (i) The Primary Shares and the maximum number of Confirmation Shares issuable under any Forward Contract shall have been approved for listing on the NYSE, subject to notice of issuance, and all Forward Hedge Shares issued and sold under the Registration Statement remain listed on the NYSE. (j) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule. (k) If, between the Time of Sale of any Shares and the corresponding settlement of the sale of such Shares on the scheduled Settlement Date, an event occurs which would result in the failure of any of the conditions described in Sections 6(a) and 6(b), then the Agents, may cause the Company to cancel the sale of all or a portion of such Shares and each of the Agents, the Forward Purchasers and the Company shall be released from any of its obligations under Section 3(h) with respect to such Shares. The Company shall hold the Agents and the Forward Purchasers harmless against any loss, claim, damage or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection with the cancellation of any sale pursuant to this Section 6(k).