EXECUTION VERSION PHYSICIANS REALTY TRUST Common Shares ($0.01 par value per share) At Market Issuance Sales Agreement August 5, 2016 Stifel, Nicolaus & Company, Incorporated One South Street, 15th Floor Baltimore, Maryland 21202 Ladies and Gentlemen:...
EXECUTION VERSION
PHYSICIANS REALTY TRUST
Common Shares
($0.01 par value per share)
At Market Issuance Sales Agreement
August 5, 2016
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Physicians Realty Trust, a Maryland real estate investment trust (the “Company”), and Physicians Realty L.P., a
Delaware limited partnership (the “Operating Partnership”), confirm their agreement (this “Agreement”), with ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
& Company, Incorporated (“Agent”), as follows:
1. Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement,
on the terms and subject to the conditions set forth herein, it may issue and sell through Agent common shares of beneficial
interest, $0.01 par value per share, of the Company (“Common Shares”), having a maximum aggregate offering price of up to
$300 million (the “Placement Shares”), provided however, that in no event shall the Company issue or sell through Agent such
number of Placement Shares that (a) exceeds the number or dollar amount of the Common Shares registered on the effective
Registration Statement (as defined below) pursuant to which the offering of Placement Shares is being made, (b) exceeds the
number of authorized but unissued Common Shares provided for in its Declaration of Trust or (c) has a maximum aggregate
offering price in excess of $150 million (the lesser of (a), (b) or (c), 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 on the number
or dollar amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and
that Agent shall have no obligation in connection with such compliance. The issuance and sale of Placement Shares through
Agent will be effected pursuant to the Registration Statement (as defined below), although nothing in this Agreement shall be
construed as (i) requiring the Company to use the Registration Statement to issue any Placement Shares or (ii) limiting in any
way the Company’s ability to issue or sell Common Shares or other securities of the Company in other transactions, and in such
event, Agent shall have no right to any commissions, fee or other payment with respect to any such transactions.
The Company has also entered into separate at market issuance sales agreements, each dated as of even date herewith
(the “Alternative Distribution Agreements”), pursuant to which it may, from time to time during the term of such Alternative
Distribution Agreements, issue and sell through or to KeyBanc Capital Markets Inc., Credit Agricole Securities (USA) Inc.,
JMP Securities LLC and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. (each, an “Alternative Agent”), as sales agent, Placement Shares
up to the Maximum Amount. The aggregate dollar amount of Placement Shares that may be sold pursuant to this Agreement
and the Alternative Distribution Agreements shall not exceed the Maximum Amount.
The Company has prepared and filed, in accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations thereunder (the “Securities Act”), with the Securities and Exchange Commission (the “Commission”),
an “automatic” shelf registration statement as defined under Rule 405 on Form S-3 (File No. 333-205034), including a base
prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, 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 thereunder (the “Exchange Act”), which automatic
shelf registration statement became effective under Rule 462(e). The Company has prepared a prospectus supplement
specifically relating to the Placement Shares to the base prospectus included as part of such registration statement (the
“Prospectus Supplement”). The Company will furnish to Agent, for use by Agent, copies of the base prospectus included as part
of such registration statement, as supplemented by the Prospectus Supplement, relating to the Placement Shares. Except where
the context otherwise requires, the “Registration Statement”, as of any time, means such registration statement as amended by
any post-effective amendments thereto at such time, including the exhibits and any schedules thereto at such time, the
documents incorporated or deemed to be incorporated by reference therein at such time and the documents otherwise deemed to
be a part thereof as of such time pursuant to Rule 430B; provided, however, that the “Registration Statement” without reference
to a time means such registration statement as amended by any post-effective amendments thereto as of the time of the first
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contract of sale for the Placement Shares, which time shall be considered the “new effective date” of the Registration Statement
with respect to the Placement Shares within the meaning of paragraph (f)(2) of Rule 430B, including the exhibits and schedules
thereto at such time, the documents incorporated or deemed to be incorporated by reference therein at such time and the
documents otherwise deemed to be a part thereof as of such time pursuant to Rule 430B. The base prospectus, including all
documents incorporated or deemed incorporated therein by reference to the extent such information has not been superseded or
modified in accordance with Rule 412 under the Securities Act (as qualified by Rule 430B(g) of the Securities Act), included in
the Registration Statement, as it may be supplemented by the Prospectus Supplement, in the form in which such base
prospectus and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule
424(b) under the Securities Act, is herein called the “Prospectus.” 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 or
deemed 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 (the “Incorporated Documents”).
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 the copy filed with the Commission pursuant to the Commission’s Electronic
Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system when used
by the Commission (collectively, “▇▇▇▇▇”).
2. Placements. Each time that the Company wishes to issue and sell Placement Shares hereunder (each, a
“Placement”), it will notify Agent by email notice (or other method mutually agreed to in writing by the parties hereto) of the
number or dollar amount of Placement Shares, the time period during which sales are requested to be made, any limitation on
the number or dollar amount of Placement Shares that may be sold in any one day and any minimum price below which sales
may not be made (a “Placement Notice”), the form of which is attached hereto as Schedule 1. The Placement Notice shall
originate from any of the individuals from the Company set forth on Schedule 3 (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 Agent set forth on Schedule
3, as such Schedule 3 may be amended from time to time. The Placement Notice shall be effective immediately upon receipt by
Agent unless and until (i) Agent declines to accept the terms contained therein for any reason, in its sole discretion (ii) the entire
amount of the Placement Shares thereunder has been sold, (iii) the Company suspends or terminates the Placement Notice or
(iv) this Agreement has been terminated under the provisions of Section 13. The amount of any discount, commission or other
compensation to be paid by the Company to Agent in connection with the sale of the Placement Shares shall be calculated in
accordance with the terms set forth in Schedule 2. It is expressly acknowledged and agreed that neither the Company nor Agent
will have any obligation whatsoever with respect to a Placement or any Placement Shares unless and until the Company
delivers a Placement Notice to Agent and Agent does not decline such Placement Notice pursuant to the terms set forth above,
and then only upon the terms specified therein and herein. In the event of a conflict between the terms of Sections 2 or 3 of this
Agreement and the terms of a Placement Notice, the terms of the Placement Notice will control.
3. Sale of Placement Shares by Agent.
a. Subject to the terms and conditions of this Agreement, for the period specified in a Placement
Notice, Agent will use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable
state and federal laws, rules and regulations and the rules of New York Stock Exchange (the “Exchange”), to sell the Placement
Shares up to the amount specified in, and otherwise in accordance with the terms of, such Placement Notice. Agent 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 Placement Shares hereunder setting forth the number of Placement Shares sold
on such day, the compensation payable by the Company to Agent pursuant to Section 2 with respect to such sales, and the Net
Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by Agent (as set forth in
Section 5(b)) from the gross proceeds that it receives from such sales. Subject to the terms of a Placement Notice, sales of the
Placement Shares, if any, by or through Agent will be made by means of ordinary brokers’ transactions on the Exchange or
otherwise at market prices prevailing at the time of sale, at prices related to prevailing market prices or at negotiated prices.
“Trading Day” means any day on which Common Shares are purchased and sold on the Exchange.
b. The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of
Placement Shares shall only be effected by or through only the Agent or an Alternative Agent on any single given day, but in no
event by more than one of them, and the Company shall in no event request that the Agent and any Alternative Agent sell
Placement Shares on the same day.
4. Suspension of Sales. The Company or Agent may, upon notice to the other party in writing (including by
email correspondence to each of the individuals of the other party set forth on Schedule 3, if receipt of such correspondence is
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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 Schedule 3), suspend any sale of Placement Shares; provided, however, that such suspension shall not affect
or impair any party’s obligations with respect to any Placement Shares sold hereunder prior to the receipt of such notice. Each
of the parties agrees that no such notice under this Section 4 shall be effective against any other party unless it is made to one of
the individuals named on Schedule 3 hereto, as such Schedule may be amended from time to time.
5. Sale and Delivery to Agent; Settlement.
a. Sale of Placement Shares.
(i) On the basis of the representations and warranties herein contained and subject to the terms
and conditions herein set forth, upon Agent’s acceptance of the terms of a Placement Notice, and unless the sale of the
Placement Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this
Agreement, Agent, for the period specified in the Placement Notice, will use its commercially reasonable efforts consistent
with its normal trading and sales practices to sell such Placement Shares up to the amount specified in, and otherwise in
accordance with the terms of, such Placement Notice. The Company acknowledges and agrees that (A) there can be no
assurance that Agent will be successful in selling Placement Shares, (B) Agent will incur no liability or obligation to the
Company or any other person or entity if it does not sell Placement Shares for any reason other than a failure by Agent to use its
commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell
such Placement Shares as required under this Agreement and (C) Agent shall be under no obligation to purchase Placement
Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by Agent and the Company.
(ii) Notwithstanding any other provision of this Agreement, the Company shall not offer or sell,
or instruct the Agent to offer or sell, any Placement Shares through the Agent as sales agent (and, by notice to the Agent given
by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for any such offer or sale of any
Placement Shares prior to the commencement of the periods referenced below), and the Agent shall not be obligated to make
any such offer or sale of Placement Shares, (A) during any period in which the Company is, or could be deemed to be, in
possession of material non-public information or (B) except as provided in Section 5(a)(ii) hereof, at any time during the period
commencing on the 10th business day prior to the time the Company issues a press release containing, or shall otherwise
publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings
Announcement”) through and including the time that is 24 hours after the time that the Company files a Quarterly Report on
Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for
the same fiscal period or periods, as the case may be, covered by such Earnings Announcement.
(iii) Notwithstanding clause (B) of Section 5(a)(ii) hereof, if the Company wishes to offer or
sell Shares to the Agent as sales agent at any time during the period from and including an Earnings Announcement through and
including the corresponding Filing Time, the Company shall first (A) prepare and deliver to the Agent (with a copy to counsel
for the Agents) a Current Report on Form 8-K that includes substantially the same financial and related information (together
with management’s discussion and analysis thereof) that was included in such Earnings Announcement (other than any
earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and
substance reasonably satisfactory to the Agent, and, prior to its filing, obtain the written consent of the Agent to such filing
(which consent shall not be unreasonably withheld), (B) provide the Agent with the officers’ certificate, opinions and letters of
counsel and accountants’ letter specified in Section 7(l), (m) and (n), respectively, hereof, (C) afford the Agent the opportunity
to conduct a due diligence review in accordance with Section 7(j) hereof prior to filing such Earnings 8-K and (D) file such
Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (1) the delivery of any officers’
certificate, opinion or letter of counsel or accountants’ letter pursuant to this Section 5(a) 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 and letters of counsel
and accountants’ letters as provided in Section 7(l), (m) and (n), respectively, hereof, and (2) this Section 5(a) shall in no way
affect or limit the operation of clause (A) of Section 5(a)(i) hereof, which shall have independent application.
b. Settlement of Placement Shares. Unless otherwise specified in the applicable Placement Notice,
settlement for sales of Placement Shares will occur on the third (3rd) Trading Day (or such earlier day as is industry practice for
regular-way trading) following the date on which such sales are made (each, a “Settlement Date”). The amount of proceeds to
be delivered to the Company on a Settlement Date against receipt of the Placement Shares sold (the “Net Proceeds”) will be
equal to the aggregate sales price received by Agent, after deduction for (i) Agent’s commission, discount or other
compensation for such sales payable by the Company pursuant to Section 2 hereof, and (ii) any transaction fees imposed by any
governmental or self-regulatory organization in respect of such sales.
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c. Delivery of Placement Shares. On or before each Settlement Date, the Company will, or will cause
its transfer agent to, electronically transfer the Placement Shares being sold by crediting Agent’s or its designee’s account
(provided Agent shall have given the Company written notice of such designee at least one Trading Day prior to the Settlement
Date) at The Depository Trust Company through its Deposit and Withdrawal at Custodian System or by such other means of
delivery as may be mutually agreed upon by the parties hereto which in all cases shall be freely tradable, transferable, registered
shares in good deliverable form. On each Settlement Date, Agent will deliver the related Net Proceeds in same day funds to an
account designated by the Company on, or prior to, the Settlement Date. The Company agrees that if the Company, or its
transfer agent (if applicable), defaults in its obligation to deliver Placement Shares on a Settlement Date, then in addition to and
in no way limiting the rights and obligations set forth in Section 11(a) hereto, it will (i) hold Agent harmless against any loss,
claim, damage, or reasonable, documented expense (including reasonable and documented 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
Agent (without duplication) any commission, discount, or other compensation to which it would otherwise have been entitled
absent such default.
d. Limitations on Offering Size. Under no circumstances shall the Company cause or request the offer
or sale of any Placement Shares if, after giving effect to the sale of such Placement Shares, the aggregate number of Placement
Shares sold pursuant to this Agreement would exceed the lesser of (A) together with all sales of Placement Shares under this
Agreement and the Alternative Distribution Agreements, the Maximum Amount or (B) the amount authorized from time to
time to be issued and sold under this Agreement by the Company’s board of trustees or a duly authorized committee thereof,
and notified to Agent in writing. Under no circumstances shall the Company cause or request the offer or sale of any Placement
Shares pursuant to this Agreement at a price lower than the minimum price authorized from time to time by the Company’s
board of trustees or a duly authorized committee thereof, and notified to Agent in writing.
6. Representations and Warranties of the Company. Except as disclosed in the Registration Statement or
Prospectus (including the Incorporated Documents), the Company and the Operating Partnership jointly and severally represent
and warrant to, and agree with Agent that as of the date of this Agreement, as of each Applicable Time (as defined below), as of
each Settlement Date and as of each Representation Date, unless such representation, warranty or agreement specifies a
different date or time:
a. Compliance of the Registration Statement, the Prospectus and Incorporated Documents. The
Company meets the requirements for use of Form S-3 under the Securities Act. The Registration Statement is an automatic
shelf registration statement under Rule 405 and the Placement Shares have been and remain eligible for registration by the
Company on such automatic shelf registration statement. Each of the Registration Statement and any post-effective
amendment thereto has become effective under the Securities Act. No stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto has been issued under the Securities Act, no notice of objection
of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2)
of the Securities Act has been received by the Company, no order preventing or suspending the use of any Prospectus
Supplement or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those
purposes have been instituted or are pending or, to the Company’s knowledge, contemplated. The Company has complied with
each request (if any) from the Commission for additional information.
Each of the Registration Statement and any post-effective amendment thereto, at the time of its effectiveness and as of
each deemed effective date with respect to the Agent pursuant to Rule 430B(f)(2), complied in all material respects with the
requirements of the Securities Act. Each of any Prospectus Supplement and the Prospectus and any amendment or supplement
thereto, at the time it was filed with the Commission, complied in all material respects with the requirements of the Securities
Act and is identical to the electronically transmitted copy thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the
extent permitted by Regulation S-T.
The documents incorporated or deemed to be incorporated by reference in the Registration Statement, any Prospectus
Supplement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the requirements of the Exchange Act.
b. Accurate Disclosure. Neither the Registration Statement nor any amendment thereto, at its effective
time or at any Applicable Time or any Settlement Date, contained, contains or will contain an untrue statement of a material fact
or omitted, omits or will omit to state a material fact required to be stated therein or necessary to make the statements therein not
misleading. At each Applicable Time, neither (A) the Prospectus nor (B) any individual Issuer Limited Use Free Writing
Prospectus, when considered together with the Prospectus, included, includes or will include an untrue statement of a material
fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Neither the Prospectus nor any amendment or supplement thereto
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(including any prospectus wrapper), as of its issue date, at the time of any filing with the Commission pursuant to Rule 424(b),
at the Applicable Time or at any Settlement Date, included, includes or will include an untrue statement of a material fact or
omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, at the time the Registration Statement became effective or when
such documents incorporated by reference were or hereafter are filed with the Commission, as the case may be, when read
together with the other information in the Registration Statement or the Prospectus, as the case may be, did not, do not and will
not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. The representations and warranties set forth in the immediately preceding
paragraph shall not apply to statements in or omissions from the Registration Statement or the Prospectus, as amended or
supplemented, made in reliance upon and in conformity with information furnished to the Company in writing by Agent
expressly for use therein. For purposes of this Section 6(b), the only information so furnished in any Registration Statement,
Prospectus or Issuer Free Writing Prospectus shall be the Agent’s name on the cover of the Prospectus and the statements
related to stabilization under the caption “Plan of Distribution” in the Prospectus (the “Sales Agent Information”).
c. Issuer Free Writing Prospectuses. No Issuer Free Writing Prospectus conflicts or will conflict with
the information contained in the Registration Statement, any Prospectus Supplement or the Prospectus or any amendment or
supplement thereto, including any document incorporated by reference therein, that has not been superseded or modified. Any
offer that is a written communication relating to the Placement Shares made prior to the initial filing of the Registration
Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) of the
Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 of the Securities
Act and otherwise complied with the requirements of Rule 163, including, without limitation, the legending requirement, to
qualify such offer for the exemption from Section 5(c) of the Securities Act provided by Rule 163. The Company has not
distributed and, prior to the later to occur of each Settlement Date and completion of the distribution of the Placement Shares,
will not distribute any offering material in connection with the offering or sale of the Placement Shares other than the
Registration Statement and the Prospectus and any Issuer Free Writing Prospectus (as defined below) to which Agent has
consented.
d. Well-Known Seasoned Issuer. (A) At the original effectiveness of the Registration Statement, (B)
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 Section 13 or 15(d) of the
Exchange Act or form of prospectus), (C) at the time the Company or any person acting on its behalf (within the meaning, for
this clause only, of Rule 163(c)) made any offer relating to the Placement Shares in reliance on the exemption of Rule 163, (D)
at the date of this Agreement, and (E) at each Applicable Time, the Company was and is a “well-known seasoned issuer,” as
defined in Rule 405.
e. Company Not Ineligible Issuer. (A) At the time of filing the Registration Statement and any
post-effective amendment thereto, (B) 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) of the Securities Act) of the Placement Shares, (C) at the date of this
Agreement and (D) at each Applicable Time, the Company was not and is not an “ineligible issuer,” as defined in Rule 405,
without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company
be considered an ineligible issuer.
f. Independent Accountants. The accountants who certified the financial statements and supporting
schedules included in the Registration Statement and the Prospectus are independent public accountants as required by the
Securities Act, the Exchange Act and the Public Accounting Oversight Board.
g. Rule 163. Any offer that is a written communication relating to the Common Shares made by the
Company or any person acting on its behalf (within the meaning, for this sentence only, of Rule 163(c) under the Securities Act)
prior to the filing of the Registration Statement has been filed with the Commission in accordance with Rule 163 under the
Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation
the legending requirement, to qualify such offer for the exemption from Section 5(c) of the Securities Act provided by Rule
163.
h. Financial Statements; Non-GAAP Financial Measures. The financial statements included or
incorporated by reference in the Registration Statement and the Prospectus, together with the related schedules and notes,
present fairly in all material respects: (A) the financial position of the Company and the respective entities to which such
financial statements relate (the “Covered Entities”) at the dates indicated and the statement of operations, shareholders’ equity
and cash flows of the Covered Entities for the periods specified, except as may be stated in the related notes thereto; said
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financial statements have been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”) applied
on a consistent basis throughout the periods involved, except as may be stated in the related notes thereto, and (B) the financial
position of the Predecessor (as defined in the Registration Statement) at the dates indicated and the statement of operations,
shareholders’ equity and cash flows of the Predecessor for the periods specified, except as may be stated in the related notes
thereto; said financial statements have been prepared in conformity with GAAP applied on a consistent basis throughout the
periods involved, except as may be stated in the related notes thereto. The supporting schedules, if any, present fairly in all
material respects and in accordance with GAAP the information required to be stated therein. The selected financial data and
the summary financial information included in the Registration Statement and the Prospectus present fairly in all material
respects the information shown therein and have been compiled on a basis consistent with that of the audited financial
statements included therein. The pro forma financial statements and the related notes thereto included 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 basis described therein, and the Company has determined 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 therein, no historical or pro forma financial statements or supporting schedules are required to be
included or incorporated by reference in the Registration Statement or the Prospectus under the Securities Act. All disclosures
contained in the Registration Statement or the Prospectus, or incorporated by reference, regarding “non-GAAP financial
measures” (as such term is defined by the rules and regulations of the Commission) comply with Regulation G of the Exchange
Act and Item 10 of Regulation S-K of the Securities Act, to the extent applicable. The interactive data in eXtensible Business
Reporting Language incorporated by reference in the Registration Statement and the Prospectus, if any, fairly presents the
information called for in all material respects and has been prepared in accordance with the Commission's rules and guidelines
applicable thereto.
i. No Material Adverse Change in Business. Except as otherwise stated therein, since the respective
dates as of which information is given in the Registration Statement and the Prospectus, (A) there has been no material adverse
change in the condition, financial or otherwise, or in the management, earnings, business affairs or business prospects of the
Company, the Operating Partnership and the Company’s subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a “Material Adverse Effect”), (B) there have been no transactions entered into by the Company or
any of its subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company and
its subsidiaries considered as one enterprise, and (C) except for quarterly dividends on the Common Shares in amounts per
share that are consistent with past practice, there has been no dividend or other distribution of any kind declared, paid or made
by the Company on any class of its shares of beneficial interest.
j. Good Standing of the Company. The Company has been duly organized and is validly existing as a
real estate investment trust in good standing under the laws of the State of Maryland and has trust 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, as the sole general partner of the Operating Partnership, to
cause the Operating Partnership to enter into and perform the Operating Partnership’s obligations under this Agreement; and
the Company is duly qualified as a foreign real estate investment trust to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.
k. Good Standing of the Operating Partnership. 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 partnership power
and authority to own or lease, as the case may be, and to operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this Agreement; and the Operating Partnership is duly qualified
as a foreign partnership to transact business and is in good standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not result in a Material Adverse Effect. The Company is the sole general partner of the
Operating Partnership. The aggregate percentage interests of the Company in the Operating Partnership as of the date of this
Agreement is set forth in the Prospectus. The Second Amended and Restated Partnership Agreement of the Operating
Partnership has been duly and validly authorized, executed and delivered by or on behalf of the Company and constitutes a
valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except to the
extent that such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors’ rights and remedies generally, and subject, as to
enforceability, to general principles of equity and, with respect to rights to indemnity and contribution thereunder, except as
rights may be limited by applicable law or policies underlying such law.
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l. Good Standing of Subsidiaries. Each “significant subsidiary” of the Company (as such term is
defined in Rule 1-02 of Regulation S-X) (each, a “Subsidiary” and, collectively, the “Subsidiaries”) has been duly organized
and is validly existing in good standing under the laws of the jurisdiction of its incorporation or organization, has corporate or
similar 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 is duly qualified to transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except
where the failure to so qualify or to be in good standing would not result in a Material Adverse Effect. Except as otherwise
disclosed in the Registration Statement and the Prospectus, all of the issued and outstanding capital stock of each Subsidiary has
been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Operating Partnership, directly or
through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. None of the
outstanding capital stock of any Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of
such Subsidiary
m. Capitalization. As of the date of this Agreement, the authorized Common Shares are as set forth in
the Registration Statement and the Prospectus. The issued and outstanding Common Shares have been duly authorized and
validly issued and are fully paid and non-assessable. None of the outstanding Common Shares were issued in violation of the
preemptive or other similar rights of any securityholder of the Company. The issued and outstanding OP Units have been duly
authorized and validly issued and are fully paid. Except as set forth in the Prospectus, there are no outstanding options,
warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or
exchange any securities or interests for shares of the Company’s or its subsidiaries’ capital stock, including OP Units or other
ownership interests of the Operating Partnership.
n. Authorization of Agreement. This Agreement has been duly authorized, executed and delivered by
the Company and the Operating Partnership.
o. Authorization and Description of Placement Shares. The Placement Shares, when issued and
delivered pursuant to the terms approved by the board of trustees of the Company or a duly authorized committee thereof,
against payment therefor as provided herein, will be duly and validly authorized and issued and fully paid and nonassessable,
free and clear of any pledge, lien, encumbrance, security interest or other claim created by the Company, including any
statutory or contractual preemptive rights, resale rights, or rights of first refusal, and the issuance of the Placement Shares is not
subject to the preemptive or other similar rights of any securityholder of the Company. The Common Shares conform in all
material respects to all statements relating thereto contained in the Registration Statement and the Prospectus and such
description conforms in all material respects to the rights set forth in the instruments defining the same. No holder of Placement
Shares will be subject to personal liability solely by reason of being such a holder.
p. Registration Rights. There are no persons with registration rights or other similar rights to have any
securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company
under the Securities Act pursuant to this Agreement, other than those rights that have been disclosed in the Registration
Statement and the Prospectus.
q. Absence of Violations, Defaults and Conflicts. None of the Company or any of its subsidiaries is
(A) in violation of its declaration of trust (or charter), by-laws or similar organizational document, (B) in default in the
performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which it or any of them may be bound or to which any of the properties or assets of the Company
or any of its subsidiaries is subject (collectively, “Agreements and Instruments”), except for such defaults that would not, singly
or in the aggregate, result in a Material Adverse Effect, or (C) in violation of any law, statute, rule, regulation, judgment, order,
writ or decree of any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or
agency having jurisdiction over the Company or any of its subsidiaries or any of their respective properties, assets or operations
(each, a “Governmental Entity”), except for such violations that would not, singly or in the aggregate, result in a Material
Adverse Effect. The execution, delivery and performance of this Agreement and the consummation of the transactions
contemplated herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Placement
Shares and the use of the proceeds from the sale of the Placement Shares as described therein under the caption “Use of
Proceeds”) and compliance by the Company and the Operating Partnership with their respective obligations hereunder have
been duly authorized by all necessary corporate or partnership action (as applicable) and 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 Repayment Event (as
defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of
the Company or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or
Repayment Events or liens, charges or encumbrances that would not reasonably be expected, singly or in the aggregate, to
8
result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust (or
charter), by-laws or similar organizational document of the Company or any subsidiary or any law, statute, rule, regulation,
judgment, order, writ or decree of any Governmental Entity. As used herein, a “Repayment Event” means any event or
condition which gives 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 or any of its subsidiaries.
r. Absence of Labor Dispute. No labor dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or any subsidiary’s principal suppliers, manufacturers, customers or
contractors, which, in either case, would reasonably be expected to result in a Material Adverse Effect.
s. ERISA. Except as described in the Registration Statement and the Prospectus or as would not
reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, (A) each employee benefit plan,
within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), that is
maintained, administered or contributed to by the Company or any of its affiliates, for employees or former employees of the
Company or any of its affiliates has been maintained in compliance in all material respects with its terms and the requirements
of any applicable statutes, orders, rules and regulations, including, but not limited to, ERISA and the Internal Revenue Code of
1986, as amended (the “Code”); and (B) no prohibited transaction, within the meaning of Section 406 of ERISA or Section
4975 of the Code, has occurred with respect to any such plan excluding transactions effected pursuant to a statutory or
administrative exemption, and no such plan is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA.
t. Absence of Proceedings. Except as disclosed in the Registration Statement and the Prospectus,
there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or, to
the knowledge of the Company, threatened, against or affecting the Company or any of its subsidiaries, which would
reasonably be expected to result in a Material Adverse Effect, or which would reasonably be expected to materially and
adversely affect the consummation of the transactions contemplated in this Agreement or the performance by the Company of
its obligations hereunder; and the aggregate of all pending legal or governmental proceedings to which the Company or any
such subsidiary is a party or of which any of their respective properties or assets is the subject which are not described in the
Registration Statement and the Prospectus, including ordinary routine litigation incidental to the business, would not
reasonably be expected to result in a Material Adverse Effect.
u. Accuracy of Exhibits. There are no contracts or documents which are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so
described and filed as required.
v. Absence of Further Requirements. No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any Governmental Entity is necessary or required for the performance by the
Company or any subsidiary of its obligations hereunder, in connection with the offering, issuance or sale of the Placement
Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as have been already
obtained or as may be required under the Securities Act, the rules of the New York Stock Exchange, state securities laws or the
rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”).
w. Possession of Licenses and Permits. The Company and its subsidiaries possess such permits,
licenses, approvals, consents and other authorizations (collectively, “Governmental Licenses”) issued by the appropriate
Governmental Entities necessary to conduct the business now operated by them, except where the failure so to possess would
not, singly or in the aggregate, result in a Material Adverse Effect. The Company and its subsidiaries are in compliance with the
terms and conditions of all Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate,
result in a Material Adverse Effect. All of the Governmental Licenses are valid and in full force and effect, except when the
invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not,
singly or in the aggregate, result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of any Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in a Material
Adverse Effect.
x. Real Property. Except as described in the Registration Statement and the Prospectus, the Operating
Partnership, directly or indirectly through its subsidiaries, has good and marketable title (or in the case of ground leases, a valid
leasehold interest) to all real property owned by them and good title to all other properties owned by it, directly or indirectly
through its subsidiaries, in each case, free and clear of all mortgages, pledges, liens, security interests, claims, restrictions or
9
encumbrances of any kind except such as (A) are described in the Registration Statement and the Prospectus or (B) do not,
singly or in the aggregate, materially affect the value of such property and do not interfere materially with the use made and
proposed to be made of such property by the Operating Partnership, directly or indirectly through its subsidiary that owns such
property; and all of the leases and subleases material to the business of the Company and its subsidiaries, considered as one
enterprise, and under which the Operating Partnership, directly or indirectly through one of its subsidiaries, holds Properties,
are in full force and effect, and neither the Company nor any of its subsidiaries has received any written notice of any material
claim of any sort that has been asserted against the Company or any of its subsidiaries by anyone adverse to the rights of the
Company or any subsidiary under any of the leases or subleases mentioned above, or affecting or questioning the rights of the
Company or such subsidiary to the continued possession of the leased or subleased premises under any such lease or sublease.
Except as otherwise set forth in or described in the Registration Statement and the Prospectus, the mortgages and deeds of trust
encumbering the Properties are not convertible into debt or equity securities of the entity owning such Property or of the
Company or any of its subsidiaries, and such mortgages and deeds of trust will not be cross-defaulted or cross-collateralized to
any property not owned, directly or indirectly, in whole or in part, by the Operating Partnership. To the knowledge of the
Company and the Operating Partnership, none of the tenants under any lease of space at any of the Properties that, singly or in
the aggregate, is material to the Company and its subsidiaries considered as one enterprise is the subject of bankruptcy,
reorganization or similar proceedings. None of the Company or any of its subsidiaries has received from any Governmental
Entity any written notice of any condemnation of or zoning change materially affecting any Property or any part thereof, and
the Company has no knowledge of any such condemnation or zoning change which is threatened and, in each case, which if
consummated would reasonably be expected to result in a Material Adverse Effect. Each of the Properties complies in all
material respects with all applicable codes, ordinances, laws and regulations (including without limitation, building and zoning
codes, laws and regulations and laws relating to access to the Properties), except for failures to the extent disclosed in the
Registration Statement and the Prospectus and except for such failures to comply that would not individually or in the aggregate
reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received
written notice of proposed material special assessment or any proposed change in any property tax, zoning or land use law or
availability of water affecting any Property that would reasonably be expected to result in a Material Adverse Effect. Except as
described in the Registration Statement and the Prospectus, the Company or one or more of its subsidiaries has obtained, on or
prior to the date hereof, one or more title insurance policies on, whether directly or through assignment or endorsements, or a
so-called “fairway-endorsement” on existing title policies covering, the fee interests (or leasehold interests as the case may be)
from a nationally recognized title insurance company, or, if such title policy has not been issued, a binding commitment by such
title insurance company to issue such a policy, which policies include commercially reasonable exceptions, with coverage in
such amounts as are commercially reasonable for the assets owned or leased by the Company and that are consistent with the
types and amounts of insurance typically maintained by owners of similar properties, and such title insurance policies, fairway
endorsements or binding commitments, as the case may be, are in full force and effect in all material respects. Except as would
not, individually or in the aggregate reasonably be expected to result in a Material Adverse Effect, there are no encroachments
upon any Property by improvements on an adjacent property, and none of the improvements on any Property encroach on any
adjacent property, streets or alleys. Except as set forth in the Registration Statement and the Prospectus, neither the Company
nor any of its subsidiaries is a party to any material lease that is required to be disclosed in the Registration Statement or the
Prospectus. Except as set forth in the Registration Statement and the Prospectus, neither the Company nor any of its subsidiaries
holds any Property under a ground lease, and true and complete copies of each ground lease described in the Registration
Statement and the Prospectus have been provided to the Underwriters or their counsel. To the knowledge of the Company and
the Operating Partnership, all real property owned or leased by the Company or a Subsidiary is free of material structural
defects and all building systems contained therein are in good working order in all material respects, subject to ordinary wear
and tear or, in each instance, the Company has created an adequate reserve to effect reasonably required repairs, maintenance
and capital expenditures; to the knowledge of the Company and the Operating Partnership, water, storm water, sanitary sewer,
electricity and telephone service are all available at the property lines of such property over duly dedicated streets or perpetual
easements of record benefiting such property; except as described in the Registration Statement and the Prospectus, to the
knowledge of the Company and the Operating Partnership, there is no pending or threatened special assessment, tax reduction
proceeding or other action that, individually or in the aggregate, could reasonably be expected to increase or decrease the real
property taxes or assessments of any of such property, that, individually or in the aggregate, would reasonably be expected to
have a Material Adverse Effect. To the knowledge of the Company and the Operating Partnership, except as set forth in or
described in the Registration Statement and the Prospectus, including as may be reflected in the pro forma financial statements,
and except as would not, individually or in the aggregate, reasonably be expected have a Material Adverse Effect: (A) no rentals
or other amounts due under any lease have been paid more than one (1) month in advance; (B) no tenant has asserted in writing
any defense or set-off against the payment of rent in connection with any lease nor has any tenant contested any tax, operating
cost or other escalation payment or occupancy charge, or any other amounts payable under its leases; (C) all tenants, licensees,
franchisees or other parties under any lease, exhibit, schedule, amendment or other document related to the lease of space at the
Properties (the “Leases”) are in possession of their respective premises; (D) none of the Leases has been assigned, mortgaged,
pledged, sublet, hypothecated or otherwise encumbered, except in connection with secured debt described in the Registration
Statement and the Prospectus; (E) none of the Company or any of its subsidiaries has waived any material provision under any
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of the Leases; (F) there are no uncured events of default, or events that with the giving of notice or passage of time, or both,
would constitute an event of default, by any tenant under any of the terms and provisions of the Leases; and (G) no tenant under
any of the Leases and no third party has a right of first refusal or other right to purchase the premises demised under such Lease.
y. Possession of Intellectual Property. The Company and its subsidiaries have access to adequate
patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks, trade names or other
intellectual property (collectively, the “Intellectual Property”) necessary to carry on the business now operated by them, and
neither the Company nor any of its subsidiaries has received any notice or is otherwise aware of any infringement of or conflict
with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest of the Company or any of its subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, singly or in
the aggregate, would result in a Material Adverse Effect.
z. No Acquisitions or Dispositions. (i) There are no contracts, letters of intent, term sheets,
agreements, arrangements or understandings with respect to the direct or indirect acquisition or disposition by any of the
Company or its subsidiaries of interests in assets or real property that are required to be described in the Registration Statement
and the Prospectus that are not so described; and (ii) except as described in the Registration Statement and the Prospectus,
neither the Company nor any of its subsidiaries or Predecessor (or subsidiary thereof) has sold any real property to a third party
during the immediately preceding twelve (12) calendar months, except for such sales as would not reasonably be expected to
have a Material Adverse Effect.
aa. Mortgages; Deeds of Trust. The Company has provided to the Representatives true and complete
copies of all credit agreements, mortgages, deeds of trust, guaranties, side letters, and other material documents evidencing,
securing or otherwise relating to any secured or unsecured indebtedness of the Company or any of its subsidiaries, and none of
the Company and its subsidiaries that is party to any such document is in default thereunder, nor has an event occurred which
with the passage of time or the giving of notice, or both, would become a default by any of them under any such document.
bb. Environmental Laws. Except as described in the Registration Statement and the Prospectus or
would not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect, (A) neither the Company
nor any of its subsidiaries is in violation of any federal, state, local or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or administrative interpretation thereof, including any judicial or administrative
order, consent, decree or judgment, relating to pollution or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation,
laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products, asbestos-containing materials or mold (collectively,
“Hazardous Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling
of Hazardous Materials (collectively, “Environmental Laws”), (B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or, to the knowledge of the Company and the Operating Partnership, threatened
administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental Law against the Company or any of its subsidiaries and
(D) to the knowledge of the Company and the Operating Partnership, there are no events or circumstances that would
reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private
party or Governmental Entity, against or affecting the Company or any of its subsidiaries relating to Hazardous Materials or any
Environmental Laws. To the knowledge of the Company or 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,
under, or adjacent to any Property or other assets owned by the Company or its subsidiaries the existence of which has had, or
is reasonably expected to have, a Material Adverse Effect.
cc. Accounting Controls and Disclosure Controls. Except as described in the Registration Statement
and the Prospectus, the Company maintains effective internal control over financial reporting (as defined under Rule 13-a15
and 15d-15 under the 1934 Act Regulations) and a system of internal accounting controls sufficient to provide reasonable
assurances that (A) transactions are executed in accordance with management’s general or specific authorization; (B)
transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain
accountability for assets; (C) access to assets is permitted only in accordance with management’s general or specific
authorization; (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences; and (E) the interactive data in eXtensible Business Reporting
11
Language incorporated by reference in the Registration Statement and the Prospectus fairly present the information called for in
all material respects and are prepared in accordance with the Commission's rules and guidelines applicable thereto. Except as
described in the Registration Statement and the Prospectus, since the end of the Company’s most recent audited fiscal year,
there has been (1) no 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 an effective system of
disclosure controls and procedures (as defined in Rule 13a-15 and Rule 15d-15 under the Exchange Act) that are designed to
ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is
recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, and is
accumulated and communicated to the Company’s management, including its principal executive officer or officers and
principal financial officer or officers, as appropriate, to allow timely decisions regarding disclosure.
dd. Compliance with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. There is and has been no failure on the part of the
Company or any of the Company’s trustees or officers, in their capacities as such, to comply in all material respects with any
provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations promulgated in connection therewith (the
“▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) with which the Company is required to comply, including Section 402 related to loans and Sections 302
and 906 related to certifications.
ee. Federal Tax Status. Commencing with its short taxable year ending December 31, 2013, the
Company has been organized and operated in conformity with the requirements for qualification and taxation as a real estate
investment trust (a “REIT”) under the Code, and its proposed method of operation will enable it to continue to meet the
requirements for qualification and taxation as a REIT under the Code. All statements regarding the Company’s qualification
and taxation as a REIT and descriptions of the Company’s organization and method of operation (inasmuch as they relate to the
Company’s qualification and taxation as a REIT) set forth in the Registration Statement and the Prospectus are accurate and fair
summaries of the legal or tax matters described therein in all material respects. The Operating Partnership is treated as a
partnership and not as an association taxable as a corporation for U.S. federal income tax purposes.
ff. Payment of Taxes. All United States federal income tax returns of the Company and its subsidiaries
required by law to be filed have been filed, except insofar as the failure to file such returns would not reasonably be expected to
result in a Material Adverse Effect, and all taxes shown by such returns or otherwise assessed, which are due and payable, have
been paid, except taxes and assessments against which appeals have been or will be promptly taken and as to which adequate
reserves have been provided. The Company and its subsidiaries required by law to file tax returns have filed all other tax returns
that are required to have been filed by them pursuant to applicable foreign, state, local or other law except insofar as the failure
to file such returns would not reasonably be expected to result in a Material Adverse Effect, and has paid all taxes due pursuant
to such returns or pursuant to any assessment received by the Company and its subsidiaries, except for such taxes, if any, as are
being contested in good faith and as to which adequate reserves have been established by the Company. The charges, accruals
and reserves on the books of the Company 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.
gg. Insurance. The Company and its subsidiaries carry or are entitled to the benefits of insurance, with
financially sound and reputable insurers, in such amounts and covering such risks as is generally maintained by companies of
established repute engaged in the same or similar business, and all such insurance is in full force and effect. Neither the
Company nor the Operating Partnership has any reason to believe that it or any of its subsidiaries will not be able (A) to renew
its existing insurance coverage as and when such policies expire or (B) to obtain comparable coverage from similar institutions
as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not result in a Material
Adverse Effect. Neither of the Company nor any of its subsidiaries has been denied any insurance coverage which it has sought
or for which it has applied.
hh. Investment Company Act. Neither the Company nor the Operating Partnership is required, and
upon the issuance and sale of the Securities as herein contemplated and the application of the net proceeds therefrom as
described in the Registration Statement and the Prospectus will not be required, to register as an “investment company” under
the Investment Company Act of 1940, as amended (the “1940 Act”).
ii. Absence of Manipulation. Neither the Company nor any affiliate of the Company has taken, nor
will the Company or any affiliate take, directly or indirectly, any action which is designed, or would be expected, to cause or
result in, or which constitutes, the stabilization or manipulation of the price of any security of the Company to facilitate the sale
or resale of the Placement Shares or to result in a violation of Regulation M under the Exchange Act; provided that no
representation is made in this subsection with respect to the actions of Agent.
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jj. No Unlawful Payments. None of the Company, any of its subsidiaries, or, to the knowledge of the
Company, any trustee, officer, agent, employee, affiliate or other person acting on behalf of the Company or any of its
subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the
Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without
limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization
of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party
or official thereof or any candidate for foreign political office, in contravention of the FCPA and the Company and its
subsidiaries and, to the knowledge of the Company, its affiliates have conducted their businesses in compliance with the FCPA
and have instituted, maintain and enforce policies and procedures designed to ensure, and which are reasonably expected to
continue to ensure, continued compliance therewith.
kk. Money Laundering Laws. The operations of the Company and its subsidiaries are and have been
conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and
regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any
Governmental Entity (collectively, the “Money Laundering Laws”); and no action, suit or proceeding by or before any
Governmental Entity involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending
or, to the best knowledge of the Company, threatened.
ll. OFAC. None of the Company, any of its subsidiaries, or, to the knowledge of the Company, any
trustee, officer, agent, employee, affiliate or representative of the Company or any of its subsidiaries is an individual or entity
(“Person”) currently the subject or target of any sanctions administered or enforced by the United States Government,
including, without limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the United
Nations Security Council (“UNSC”), the European Union, Her Majesty’s Treasury (“HMT”), or other relevant sanctions
authority (collectively, “Sanctions”), nor is the Company or any of its subsidiaries located, organized or resident in a country or
territory that is the subject of Sanctions; and the Company 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 of its subsidiaries, joint venture partners or
other Person, to fund any activities of or business with any Person, or in any country or territory, that, at the time of such
funding, is the subject of Sanctions or in any other manner that will result in a violation by any Person (including any Person
participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
mm. No Equity Awards. Except for grants pursuant to equity incentive plans disclosed in the
Registration Statement and the Prospectus, the Company has not granted to any person or entity, a compensatory stock option
or other compensatory equity-based award to purchase or receive Common Shares or common units of partnership interests in
the Operating Partnership pursuant to an equity-based compensation plan or otherwise.
nn. No Finder’s Fee. Except for the commissions payable to Agent and any Alternative Agent in
connection with the offering of the Placement Shares contemplated herein or as otherwise disclosed in the Registration
Statement and the Prospectus, the Company has not incurred any liability for any brokerage commission, finder’s fees or
similar payments in connection with the offering of the Placement Shares contemplated hereby.
oo. Lending Relationship. Except as disclosed in the Registration Statement and the Prospectus, the
Company (i) does not have any material lending or other relationship with any bank or lending affiliate of Agent or any
Alternative Agent and (ii) does not intend to use any of the proceeds from the sale of the Placement Shares to repay any
outstanding debt owed to any affiliate of Agent or any Alternative Agent.
pp. No Association with FINRA. Except for ▇.▇. ▇▇▇▇▇▇▇ and Company and its affiliates and as
disclosed in the Registration Statement and the Prospectus, neither the Company nor, to its knowledge, any of its affiliates (A)
is required to register as a “broker” or “dealer” in accordance with the provisions of the 1934 Act or the rules and regulations
thereunder, or (B) directly, or indirectly through one or more intermediaries, controls or is under common control with any
member firm of FINRA.
qq. Forward-Looking Statement. No forward-looking statement (within the meaning of Section 27A of
the Securities Act and Section 21E of the Exchange Act) contained in any of the Registration Statement or the Prospectus has
been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
rr. Maintenance of Rating. Except as disclosed in the Registration Statement and the Prospectus and
except as would not reasonably be expected to have a materially adverse affect on the sale of the Placement Shares pursuant to
13
this Agreement, neither the Company nor its subsidiaries has any debt securities or preferred stock that is rated by any
“nationally recognized statistical rating agency” (as that term is defined by the Commission for purposes of Section 3(a)(62)
under the Exchange Act).
ss. Statistical and Market-Related Data. Any statistical and market-related data included in the
Registration Statement or the Prospectus are based on or derived from sources that the Company believes, after reasonable
inquiry, to be 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.
tt. Actively Traded Security. The Common Shares are 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.
uu. Proprietary Trading by Agent. The Company consents to the Agent trading in the Company’s
Common Shares for the Agent’s accounts and for the accounts of its clients at the same time as sales of Placement Shares occur
pursuant to this Agreement or any Alternative Distribution Agreement.
Any certificate signed by any officer of the Company delivered to Agent or any Alternative Agent or to counsel for
Agent or any Alternative Agent shall be deemed a representation and warranty by the Company and the Operating Partnership
to Agent and each Alternative Agent as to the matters covered thereby.
7. Covenants of the Company. The Company covenants and agrees, and solely with respect to Section 7(o)
below, the Company and the Operating Partnership, jointly and severally, covenant and agree, with Agent that:
a. Registration Statement Amendments. After the date of this Agreement and during any period in
which a prospectus relating to any Placement Shares is required to be delivered by Agent under the Securities Act (including in
circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act) (the “Prospectus
Delivery Period”) (i) the Company will notify Agent promptly of the time when any subsequent amendment to the Registration
Statement, other than documents incorporated by reference or amendments not related to any Placement Shares, has been filed
with the Commission and/or has become effective or any subsequent supplement to the Prospectus has been filed and of the
receipt of any comment letter from the Commission or of any request by the Commission for any amendment or supplement to
the Registration Statement or Prospectus or for additional information related to the Placement Shares, (ii) the Company will
prepare and file with the Commission, promptly upon Agent’s request, any amendments or supplements to the Registration
Statement or Prospectus that, in Agent’s reasonable opinion, may be necessary or advisable in connection with the distribution
of the Placement Shares by Agent (provided, however, that the failure of Agent to make such request shall not relieve the
Company of any obligation or liability hereunder, or affect Agent’s right to rely on the representations and warranties made by
the Company in this Agreement); (iii) the Company will not file any amendment or supplement to the Registration Statement or
Prospectus relating to the Placement Shares unless a copy thereof has been submitted to Agent within a reasonable period of
time before the filing and Agent has not reasonably objected thereto (provided, however, that (A) the failure of Agent to make
such objection shall not relieve the Company of any obligation or liability hereunder, or affect Agent’s right to rely on the
representations and warranties made by the Company in this Agreement and (B) the Company has no obligation to provide
Agent any advance copy of any amendment or supplement to the Registration Statement or to provide Agent an opportunity to
object to such filing if the filing does not name Agent or does not relate to the transaction herein provided) and the Company
will furnish to Agent at the time of filing thereof a copy of any document that upon filing is deemed to be incorporated by
reference into the Registration Statement or Prospectus, except for those documents available via ▇▇▇▇▇; and (iv) the
Company will cause each amendment or supplement to the Prospectus to be filed with the Commission as required pursuant to
the applicable paragraph of Rule 424(b) of the Securities Act (without reliance on Rule 424(b)(P)) or, in the case of any
document to be incorporated therein by reference, to be filed with the Commission as required pursuant to the Exchange Act,
within the time period prescribed (the determination to file or not file any amendment or supplement with the Commission
under this Section 7(a), based on the Company’s reasonable opinion or reasonable objections, shall be made exclusively by the
Company).
b. Notice of Commission Stop Orders. The Company will advise Agent, 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, of the suspension of the qualification of the Placement Shares 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
proceeding for any such purpose; and it will promptly use its commercially reasonable efforts to prevent the issuance of any
stop order or to obtain its withdrawal if such a stop order should be issued. The Company will advise Agent promptly after it
receives any request by the Commission for any amendments to the Registration Statement or any amendment or supplements
14
to the Prospectus or any Issuer Free Writing Prospectus or for additional information related to the offering of the Placement
Shares or for additional information related to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus.
c. Delivery of Prospectus; Subsequent Changes. During the Prospectus Delivery Period, the Company
will comply with all requirements imposed upon it by the Securities Act and the Exchange Act, as from time to time in force,
and to file on or before their respective due dates all reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision of or under the
Exchange Act. If the Company has omitted any information from the Registration Statement pursuant to Rule 430A under the
Securities Act, it will use its commercially reasonable efforts to comply with the provisions of and make all requisite filings
with the Commission pursuant to said Rule 430A and to notify Agent promptly of all such filings. If during the Prospectus
Delivery Period any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the
circumstances then existing, not misleading, or if during such Prospectus Delivery Period it is necessary to amend or
supplement the Registration Statement or Prospectus to comply with the Securities Act, the Company will promptly notify
Agent to suspend the offering of Placement Shares during such period and the Company will promptly amend or supplement
the Registration Statement or Prospectus (at the expense of the Company) so as to correct such statement or omission or effect
such compliance. 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, prevailing at that subsequent time, not misleading, the Company will promptly notify
Agent to suspend the offering of Placement Shares during such period and the Company will, subject to Section 7(a) hereof,
promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or
omission.
d. Listing of Placement Shares. During the Prospectus Delivery Period, the Company will use its
commercially reasonable efforts to cause the Placement Shares to be listed on the Exchange and to qualify the Placement
Shares for sale under the securities laws of such jurisdictions in the United States as Agent reasonably designates and to
continue such qualifications in effect so long as required for the distribution of the Placement Shares; provided, however, that
the Company shall not be required in connection therewith to qualify as a foreign corporation or dealer in securities or file a
general consent to service of process in any jurisdiction.
e. Delivery of Registration Statement and Prospectus. The Company will furnish to Agent and its
counsel (at the reasonable 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
that are filed with the Commission during the Prospectus Delivery Period (including all documents filed with the Commission
during such period that are deemed to be incorporated by reference therein), in each case as soon as reasonably practicable and
in such quantities as Agent may from time to time reasonably request and, at Agent’s request, will also furnish copies of the
Prospectus to each exchange or market on which sales of the Placement Shares may be made; provided, however, that the
Company shall not be required to furnish any document (other than the Prospectus) to Agent to the extent such document is
available on ▇▇▇▇▇.
f. Earnings Statement. The Company will timely file such reports pursuant to the Exchange Act as are
necessary in order to make generally available to its security holders as soon as practicable, but in any event not later than 15
months after the end of the Company’s current fiscal quarter, an earnings statement covering a 12-month period that satisfies
the provisions of Section 11(a) and Rule 158 of the Securities Act.
g. Use of Proceeds. The Company will use the Net Proceeds as described in the Prospectus in the
section entitled “Use of Proceeds.”
h. Notice of Other Sales. The Company will promptly notify Agent, of any offer to sell, sell, contract to
sell, grant any option to sell or otherwise dispose of any Common Shares (other than the Placement Shares offered pursuant to
this Agreement) or securities convertible into or exchangeable for Common Shares, warrants or any rights to purchase or
acquire, Common Shares during the period beginning on the date on which any Placement Notice is delivered to Agent
hereunder and ending on the third (3rd) Trading Day immediately following the final Settlement Date with respect to Placement
Shares sold pursuant to such Placement Notice (or, if the Placement Notice has been terminated or suspended prior to the sale of
all Placement Shares covered by a Placement Notice, the date of such suspension or termination); provided, however, that such
notice requirements will not be required in connection with the Company’s issuance or sale of (i) Common Shares, options to
purchase Common Shares or Common Shares issuable upon the exercise of options or the vesting of equity awards, pursuant to
15
any employee or director stock option or benefits plan, stock ownership plan or dividend reinvestment plan (but not Common
Shares subject to a waiver to exceed plan limits in its dividend reinvestment plan) of the Company whether now in effect or
hereafter implemented that are disclosed in the Registration Statement and the Prospectus; (ii) Common Shares issuable upon
conversion of securities or the exercise of warrants, options or other rights in effect or outstanding, and disclosed in filings by
the Company available on ▇▇▇▇▇ or otherwise in writing to Agent, and (iii) Common Shares, or securities convertible into or
exercisable for Common Shares, offered and sold in a privately negotiated transaction to vendors, customers, owners of target
companies or properties, strategic partners or potential strategic partners or other investors conducted in a manner so as not to
be integrated with the offering of Placement Shares hereby.
i. Change of Circumstances. The Company will, at any time during the pendency of a Placement
Notice advise Agent 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 required to be provided to Agent
pursuant to this Agreement.
j. Due Diligence Cooperation. The Company will cooperate with any reasonable due diligence review
conducted by Agent or its representatives in connection with the transactions contemplated hereby, including, without
limitation, providing information and making available documents and senior corporate officers, during regular business hours
and at the Company’s principal offices, as Agent may reasonably request.
k. Required Filings Relating to Placement of Placement Shares. The Company agrees that on such
dates as the Securities Act shall require, the Company will (i) file a prospectus supplement with the Commission under the
applicable paragraph of Rule 424(b) under the Securities Act (each and every filing under Rule 424(b), a “Filing Date”), which
prospectus supplement will set forth, within the relevant period, the amount of Placement Shares sold through Agent, the Net
Proceeds to the Company and the compensation payable by the Company to Agent with respect to such Placement Shares, and
(ii) deliver such number of copies of each such prospectus supplement to each exchange or market on which such sales were
effected as may be required by the rules or regulations of such exchange or market.
l. Representation Dates; Certificate.
Each time during the term of this Agreement that the Company:
(i) amends or supplements (other than a prospectus supplement relating solely to an offering
of securities other than the Placement Shares) the Registration Statement or the Prospectus relating to the Placement Shares 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 Placement Shares;
(ii) files an annual report on Form 10-K under the Exchange Act (including any Form 10-K/A
containing amended financial information or a material amendment to the previously filed Form 10-K);
(iii) files its quarterly reports on Form 10-Q under the Exchange Act; or
(iv) files a current report on Form 8-K containing amended financial information (other than
information “furnished” pursuant to Items 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 reclassification 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 (l)(i) through (l)(iv) and any time of
request pursuant to this Section 7(l) shall be a “Representation Date.”) the Company shall furnish Agent no later than five (5)
Trading Days after each Representation Date (but in the case of clause (iv) above only if Agent determines that the financial
information contained in such Form 8-K is material) with a certificate, in the form attached hereto as Exhibit 7(1). The
requirement to provide a certificate under this Section 7(1) shall be waived for any Representation Date occurring at a time at
which no Placement Notice 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 on which the Company files its annual report on Form 10-K. Notwithstanding the foregoing, (i)
upon the delivery of the first Placement Notice hereunder and (ii) if the Company subsequently decides to sell Placement
Shares following a Representation Date when the Company relied on such waiver and did not provide Agent with a certificate
under this Section 7(1), then before Agent sells any Placement Shares, the Company shall provide Agent with a certificate, in
the form attached hereto as Exhibit 7(1), dated the date of the Placement Notice.
16
m. Legal Opinion. On or prior to the date of the first Placement Notice given hereunder, the Company
shall cause to be furnished to the Agent (i) a written opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP (“Company Counsel”) as to corporate
and securities matters dated as of the date of such Placement Notice, (ii) a written opinion of Company Counsel as to tax matters
dated as of the date of such Placement Notice, (iii) a negative assurance letter from Company Counsel dated as of the date of
such Placement Notice, and (iv) a written opinion of ▇▇▇▇▇▇▇ LLP (“Venable”) as to Maryland corporate matters dated as of the
date of such Placement Notice, in each case, in the forms attached hereto as Exhibits 7(m), 7(m)(ii), 7(m)(iii) and 7(m)(iv).
Within five (5) Trading Days of each subsequent Representation Date with respect to which the Company is obligated to
deliver a certificate in the form attached hereto as Exhibit 7(l) for which no waiver is applicable, the Company shall cause to be
furnished to the Agent the written opinions and negative assurance letter of Company Counsel and written opinion of Venable
in substantially the foregoing forms and in substance reasonably satisfactory to Agent; provided, however, that in lieu of such
opinion or negative assurance letter, Company Counsel or Venable last furnishing such applicable opinion or negative
assurance letter to the Agent may furnish to the Agent a letter (a “Reliance Letter”) substantially to the effect that the Agent may
rely on such prior opinion or negative assurance letter delivered under this Section 7(m) to the same extent as if it were dated the
date of such Reliance Letter (except that statements in such prior opinion or letter shall be deemed to relate to the Registration
Statement and the Prospectus as then amended or supplemented).
n. Comfort Letter. On or prior to the date of the first Placement Notice given hereunder and within five
(5) Trading Days after each subsequent Representation Date the Company shall cause its independent accountants to furnish
Agent letters (the “Comfort Letters”), dated the date the Comfort Letter is delivered, which shall meet the requirements set forth
in this Section 7(n); provided, that if requested by Agent, the Company shall cause a Comfort Letter to be furnished to Agent
within ten (10) Trading Days of such request following the date of occurrence of any restatement of the Company’s financial
statements. The Comfort Letter from the Company’s independent accountants shall be in a form and substance reasonably
satisfactory to Agent, (i) confirming that they are an independent public accounting firm within the meaning of the Securities
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.
o. Market Activities. Each of the Company and the Operating Partnership will not, directly or
indirectly, (i) take any action designed to cause or result in, or that constitutes or would 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 Common Shares or (ii)
sell, bid for, or purchase Common Shares in violation of Regulation M, or pay anyone any compensation for soliciting
purchases of the Placement Shares other than Agent.
p. Investment Company Act. The Company will conduct its affairs in such a manner so as to
reasonably ensure that neither it nor the Subsidiaries will be or become, at any time prior to the termination of this Agreement,
an “investment company,” as such term is defined in the Investment Company Act.
q. No Offer to Sell. Other than an Issuer Free Writing Prospectus approved in advance by the
Company and Agent in its capacity as agent hereunder pursuant to Section 23, neither Agent nor the Company (including its
agents and representatives, other than Agent in their capacity as such) will make, use, prepare, authorize, approve or refer to any
written communication (as defined in Rule 405), required to be filed with the Commission, that constitutes an offer to sell or
solicitation of an offer to buy Placement Shares hereunder.
▇. ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The Company will maintain and keep accurate books and records reflecting its
assets and maintain internal accounting controls in a manner designed to provide reasonable assurance regarding the reliability
of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP and including
those policies and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect
the transactions and dispositions of the assets of the Company, (ii) provide reasonable assurance that transactions are recorded
as necessary to permit the preparation of the Company’s consolidated financial statements in accordance with GAAP, (iii)
receipts and expenditures of the Company are being made only in accordance with management’s and the Company’s directors’
authorization, and (iv) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use
or disposition of the Company’s assets that could have a material effect on its financial statements. The Company will maintain
such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, and the applicable regulations thereunder that are designed to ensure that information required to be
disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and
reported, within the time periods specified in the Commission’s rules and forms, including, without limitation, controls and
procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits
17
under the Exchange Act is accumulated and communicated to the Company’s management, including its principal executive
officer and principal financial officer, or persons performing similar functions, as appropriate to allow timely decisions
regarding required disclosure and to ensure that material information relating to the Company or the Subsidiaries is made
known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
Notwithstanding the foregoing, the parties acknowledge and agree that no provision of this Agreement shall impose any
requirements on the Company relating to accounting standards under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act which are not applicable to an
“emerging growth company” for so long as the Company is an “emerging growth company” as defined in Section 2(a) of the
Securities Act and the Company chooses to take advantage of the exemption from such requirement.
s. Regulation M. If the Company has reason to believe that the exemptive provisions set forth in Rule
101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Common Shares, it
shall promptly notify the Agent and sales of the Placement Shares under this Agreement shall be suspended until that or other
exemptive provisions have been satisfied in the judgment of each party.
t. Qualification and Taxation as a REIT. The Company will use its best efforts to continue to qualify
for taxation as a REIT under the Code and will not take any action to revoke or otherwise terminate the Company’s REIT
election, unless the Company’s board of trustees determines in good faith that it is no longer in the best interests of the
Company and its shareholders to be so qualified.
u. Material Changes. The Company will advise counsel to the Agent promptly in writing of any
material changes to the list of “significant subsidiaries” of the Company (as defined by Rule 1-02 of Regulation S-X) set forth
in exhibit 21 to the Company’s most recently filed Annual Report on Form 10-K.
8. Representations and Covenants of Agent. Agent represents and warrants that it is duly registered as a
broker-dealer under FINRA, the Exchange Act and the applicable statutes and regulations of each state in which the Placement
Shares will be offered and sold, except such states in which Agent is exempt from registration or such registration is not
otherwise required. Agent shall continue, for the term of this Agreement, to be duly registered as a broker-dealer under FINRA,
the Exchange Act and the applicable statutes and regulations of each state in which the Placement Shares will be offered and
sold, except such states in which Agent is exempt from registration or such registration is not otherwise required, during the
term of this Agreement. Agent shall comply with all applicable law and regulations, including but not limited to Regulation M,
in connection with the transactions contemplated by this Agreement, including the issuance and sale through Agent of the
Placement Shares.
9. Payment of Expenses. The Company will pay all expenses incident to the performance of its obligations
under this Agreement, including (i) the preparation, filing, including any fees required by the Commission, and printing of the
Registration Statement (including financial statements and exhibits) as originally filed and of each amendment and supplement
thereto and each Prospectus and Free Writing Prospectus, in such number as Agent shall deem reasonably necessary, (ii) the
printing and delivery to Agent of this Agreement and such other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Placement Shares, (iii) the preparation, issuance and delivery of the certificates, if
any, for the Placement Shares to Agent, 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 Placement Shares to Agent, (iv) the fees and disbursements of
the counsel, accountants and other advisors to the Company, (v) the fees and expenses of the transfer agent and registrar for the
Common Shares, (vi) the fees and expenses incurred by Agent in connection with the transaction, in an amount not to exceed
$25,000, (vii) the filing fees incident to any review by FINRA of the terms of the sale of the Placement Shares, and (viii) the
fees and expenses incurred in connection with the listing of the Placement Shares on the Exchange.
10. Conditions to Agent’s Obligations. The obligations of Agent hereunder with respect to a Placement will be
subject to the continuing accuracy and completeness of the representations and warranties made by the Company and the
Operating Partnership herein, to the due performance by each of the Company and the Operating Partnership of its respective
obligations hereunder, to the completion by Agent of a due diligence review satisfactory to it in its reasonable judgment, and to
the continuing satisfaction (or waiver by Agent in its sole discretion) of the following additional conditions:
a. Registration Statement Effective. The Registration Statement shall have become effective and shall
be available for the sale of all Placement Shares contemplated to be issued by any Placement Notice.
b. No Material Notices. None of the following events shall have occurred and be continuing: (i) receipt
by the Company 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
99900.08560 EMF_US 59718989v2
18
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 Placement Shares for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose; or (iv) the occurrence of any event that results in the
Registration Statement containing an untrue statement of a material fact or omitting to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or the Prospectus or any Issuer Free Writing Prospectus
containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they were made, not misleading.
c. No Misstatement or Material Omission. Agent shall not have advised the Company that the
Registration Statement or Prospectus or any Issuer Free Writing Prospectus, or any amendment or supplement thereto, contains
an untrue statement of fact that in Agent’s opinion is material, or omits to state a fact that in Agent’s opinion is material and 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 Effect, or any development that could reasonably be
expected to cause a Material Adverse Effect, or a downgrading in or withdrawal of the rating assigned to any of the Company’s
securities (other than asset backed securities) by any rating organization or a public announcement by any rating organization
that it has under surveillance or review its rating of any of the Company’s securities (other than asset backed securities), the
effect of which, in the case of any such action by a rating organization described above, in the reasonable judgment of Agent
(without relieving the Company of any obligation or liability it may otherwise have), is so material as to make it impracticable
or inadvisable to proceed with the offering of the Placement Shares on the terms and in the manner contemplated in the
Prospectus.
e. Legal Opinion. Agent shall have received the opinions and negative assurance letter of Company
Counsel and Venable required to be delivered pursuant Section 7(m) on or before the date on which such delivery of such
opinions and letter are required pursuant to Section 7(m).
f. Comfort Letter. Agent shall have received the Comfort Letter required to be delivered pursuant
Section 7(n) on or before the date on which such delivery of such letter is required pursuant to Section 7(n).
g. Representation Certificate. Agent shall have received the certificate required to be delivered
pursuant to Section 7(l) on or before the date on which delivery of such certificate is required pursuant to Section 7(l).
h. Agent Legal Counsel Opinion. On or prior to the date that the first Placement Shares are sold
pursuant to the terms of this Agreement and as promptly as possible and in no event later than five (5) Trading Days after each
Representation Date with respect to which the Company is obligated to deliver a certificate in the form attached hereto as
Exhibit 7(l) for which no waiver is applicable, the Agent shall have received the favorable opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP,
counsel to the Agent, dated the date that the opinion is required to be delivered, in customary form and substance satisfactory to
the Agent, 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.
i. No Suspension. Trading in the Common Shares shall not have been suspended on the Exchange and
the Common Shares shall not have been delisted from the Exchange.
j. Other Materials. On each date on which the Company is required to deliver a certificate pursuant to
Section 7(l), the Company shall have furnished to Agent such appropriate further information, certificates and documents as
Agent may reasonably request and as are usually or customarily furnished in connection with representation dates for an
at-the-market securities offering program. All such opinions, certificates, letters and other documents will be in compliance
with the provisions hereof. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters
and other documents as Agent shall reasonably request.
k. 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.
l. Approval for Listing. The Placement Shares shall either have been approved for listing on the
Exchange, subject only to notice of issuance, or the Company shall have filed an application for listing of the Placement Shares
on the Exchange at, or prior to, the issuance of any Placement Notice.
19
m. No Termination Event. There shall not have occurred any event that would permit Agent to
terminate this Agreement pursuant to Section 13(a).
11. Indemnification and Contribution.
a. Company Indemnification. The Company agrees to indemnify and hold harmless Agent, its
partners, members, directors, officers, employees and agents and each person, if any, who controls Agent within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and documented expense whatsoever, as
incurred, joint or several, arising out of or based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements therein not misleading, or arising out of any
untrue statement or alleged untrue statement of a material fact included in any related Issuer Free Writing Prospectus or the
Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and documented expense whatsoever, as
incurred, joint or several, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 11(d) below)
any such settlement is effected with the written consent of the Company, which consent shall not unreasonably be delayed or
withheld; and
(iii) against any and all documented expense whatsoever, as incurred (including the reasonable
fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above, provided, however, that this indemnity agreement shall not apply to any loss, liability,
claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission
made solely in reliance upon and in conformity with the Sales Agent Information.
b. Agent Indemnification. Agent agrees to indemnify and hold harmless the Company and its directors
and each officer of the Company who signed the Registration Statement, and each person, if any, who (i) controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act or (ii) is controlled by or is under
common control with the Company against any and all loss, liability, claim, damage and expense described in the indemnity
contained in Section 11(a), as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendments thereto) or in any related Issuer Free Writing Prospectus or
the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with the Sales Agent Information.
c. Procedure. Any party that proposes to assert the right to be indemnified under this Section 11 will,
promptly after receipt of notice of commencement of any action against such party in respect of which a claim is to be made
against an indemnifying party or parties under this Section 11, notify each such indemnifying party of the commencement of
such action, enclosing a copy of all papers served, but the omission so to notify such indemnifying party will not relieve the
indemnifying party from (i) any liability that it might have to any indemnified party otherwise than under this Section 11 and
(ii) any liability that it may have to any indemnified party under the foregoing provision of this Section 11 unless, and only to
the extent that, such omission results in the forfeiture or material impairment of substantive rights or defenses by the
indemnifying party. If any such action is brought against any indemnified party and it notifies the indemnifying party of its
commencement, the indemnifying party will be entitled to participate in and, to the extent that it elects by delivering written
notice to the indemnified party promptly after receiving notice of the commencement of the action from the indemnified party,
jointly with any other indemnifying party similarly notified, to assume the defense of the action, with counsel reasonably
satisfactory to the indemnified party, and after notice from the indemnifying party to the indemnified party of its election to
assume the defense, the indemnifying party will not be liable to the indemnified party for any legal or other expenses except as
provided below and except for the reasonable costs of investigation subsequently incurred by the indemnified party in
connection with the defense. The indemnified party will have the right to employ its own counsel in any such action, but the
fees, expenses and other charges of such counsel will be at the expense of such indemnified party unless (1) the employment of
counsel by the indemnified party has been authorized in writing by the indemnifying party, (2) the indemnified party has
reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other indemnified parties
20
that are different from or in addition to those available to the indemnifying party, (3) a conflict or potential conflict exists (based
on advice of counsel to the indemnified party) between the indemnified party and the indemnifying party (in which case the
indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified party) or (4) the
indemnifying party has not in fact employed counsel to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other
charges of counsel will be at the expense of the indemnifying party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable
fees, disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction at any one time
for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the indemnifying
party promptly after the indemnifying party receives a written invoice relating to fees, disbursements and other charges in
reasonable detail. An indemnifying party will not, in any event, be liable for any settlement of any action or claim effected
without its written consent. No indemnifying party shall, without the prior written consent of each indemnified party, settle or
compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating to the
matters contemplated by this Section 11 (whether or not any indemnified party is a party thereto), unless such settlement,
compromise or consent (1) includes an unconditional release of each indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim and (2) does not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
d. Contribution. In order to provide for just and equitable contribution in circumstances in which the
indemnification provided for in the foregoing paragraphs of this Section 11 is applicable in accordance with its terms but for
any reason is held to be unavailable from the Company or Agent, the Company and Agent will contribute to the total losses,
claims, liabilities, expenses and damages (including any investigative, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted, but after deducting
any contribution received by the Company from persons other than Agent, such as persons who control the Company within the
meaning of the Securities Act or the Exchange Act, officers of the Company who signed the Registration Statement and
directors of the Company, who also may be liable for contribution) to which the Company and Agent may be subject in such
proportion as shall be appropriate to reflect the relative benefits received by the Company on the one hand and Agent on the
other hand. The relative benefits received by the Company on the one hand and Agent on the other hand shall be deemed to be
in the same proportion as the total Net Proceeds from the sale of the Placement Shares (before deducting expenses) received by
the Company bear to the total compensation received by Agent (before deducting expenses) from the sale of Placement Shares
on behalf of the Company. If, but only if, the allocation provided by the foregoing sentence is not permitted by applicable law,
the allocation of contribution shall be made in such proportion as is appropriate to reflect not only the relative benefits referred
to in the foregoing sentence but also the relative fault of the Company, on the one hand, and Agent, on the other hand, with
respect to the statements or omission that resulted in such loss, claim, liability, expense or damage, or action in respect thereof,
as well as any other relevant equitable considerations with respect to such offering. Such relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company or Agent, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and
Agent agree that it would not be just and equitable if contributions pursuant to this Section 11(d) were to be determined by pro
rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a result of the loss, claim, liability, expense, or damage, or action
in respect thereof, referred to above in this Section 11(d) shall be deemed to include, for the purpose of this Section 11(d), any
legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such
action or claim to the extent consistent with Section 11(c) hereof. Notwithstanding the foregoing provisions of this Section
11(d), Agent shall not be required to contribute any amount in excess of the commissions received by it under this Agreement
and no person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section
11(d), any person who controls a party to this Agreement within the meaning of the Securities Act or the Exchange Act, and any
officers, directors, partners, employees or agents of Agent, will have the same rights to contribution as that party, and each
officer and director of the Company who signed the Registration Statement will have the same rights to contribution as the
Company, subject in each case to the provisions hereof. Any party entitled to contribution, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim for contribution may be made under this Section
11(d), will notify any such party or parties from whom contribution may be sought, but the omission to so notify will not relieve
that party or parties from whom contribution may be sought from any other obligation it or they may have under this Section
11(d) except to the extent that the failure to so notify such other party materially prejudiced the substantive rights or defenses of
the party from whom contribution is sought. Except for a settlement entered into pursuant to the last sentence of Section 11(c)
hereof, no party will be liable for contribution with respect to any action or claim settled without its written consent if such
consent is required pursuant to Section 11(c) hereof.
21
12. Representations and Agreements to Survive Delivery. The indemnity and contribution agreements contained
in Section 11 of this Agreement and all representations and warranties of the Company and the Operating Partnership herein or
in certificates delivered pursuant hereto shall survive, as of their respective dates, regardless of (i) any investigation made by or
on behalf of Agent, any controlling persons, or the Company (or any of their respective officers, directors or controlling
persons), (ii) delivery and acceptance of the Placement Shares and payment therefor or (iii) any termination of this Agreement.
13. Termination.
a. Agent may terminate this Agreement, by notice to the Company, as hereinafter specified at any time
(1) 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 Effect, or any development that is reasonably likely to have a Material Adverse Effect or, in
the reasonable judgment of Agent, is material and adverse and makes it impractical or inadvisable to market the Placement
Shares or to enforce contracts for the sale of the Placement Shares, (2) 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 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 judgment of Agent, impracticable
or inadvisable to market the Placement Shares or to enforce contracts for the sale of the Placement Shares, (3) if trading in the
Common Shares has been suspended or limited by the Commission or the Exchange, or if trading generally on the Exchange
has been suspended or limited, or minimum prices for trading have been fixed on the Exchange, (4) if any suspension of trading
of any securities of the Company on any exchange or in the over-the-counter market shall have occurred and be continuing, (5)
if a major disruption of securities settlements or clearance services in the United States shall have occurred and be continuing,
or (6) if a banking moratorium has been declared by either U.S. Federal or New York authorities. Any such termination shall be
without liability of any party to any other party except that the provisions of Section 9 (Payment of Expenses), Section 11
(Indemnification and Contribution), Section 12 (Representations and Agreements to Survive Delivery), Section 18 (Governing
Law and Time; Waiver of Jury Trial) and Section 19 (Consent to Jurisdiction) hereof shall remain in full force and effect
notwithstanding such termination. If Agent elects to terminate this Agreement as provided in this Section 13(a), Agent shall
provide the required notice as specified in Section 14 (Notices).
b. The Company shall have the right, by giving five (5) days’ notice as hereinafter specified to
terminate this Agreement in its sole discretion at any time after the date of this Agreement. Any such termination shall be
without liability of any party to any other party except that the provisions of Section 9 (Payment of Expenses), Section 11
(Indemnification and Contribution), Section 12 (Representations and Agreements to Survive Delivery), Section 18 (Governing
Law and Time; Waiver of Jury Trial) and Section 19 (Consent to Jurisdiction) hereof shall remain in full force and effect
notwithstanding such termination.
c. Agent shall have the right, by giving five (5) days notice as hereinafter specified to terminate this
Agreement in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of
any party to any other party except that the provisions of Section 9 (Payment of Expenses), Section 11 (Indemnification and
Contribution), Section 12 (Representations and Agreements to Survive Delivery), Section 18 (Governing Law and Time;
Waiver of Jury Trial) and Section 19 (Consent to Jurisdiction) hereof shall remain in full force and effect notwithstanding such
termination.
d. Unless earlier terminated pursuant to this Section 13, this Agreement shall automatically terminate
upon the issuance and sale of all of the Placement Shares through Agent on the terms and subject to the conditions set forth
herein except that the provisions of Section 9 (Payment of Expenses), Section 11 (Indemnification and Contribution), Section
12 (Representations and Agreements to Survive Delivery), Section 18 (Governing Law and Time; Waiver of Jury Trial) and
Section 19 (Consent to Jurisdiction) hereof shall remain in full force and effect notwithstanding such termination.
e. 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; provided, however, that any such termination by mutual
agreement shall in all cases be deemed to provide that Section 9 (Payment of Expenses), Section 11 (Indemnification and
Contribution), Section 12 (Representations and Agreements to Survive Delivery), Section 18 (Governing Law and Time;
Waiver of Jury Trial) and Section 19 (Consent to Jurisdiction) shall remain in full force and effect. Upon termination of this
Agreement, the Company shall not have any liability to Agent for any discount, commission or other compensation with respect
to any Placement Shares not otherwise sold by Agent under this Agreement.
f. 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
22
such notice by Agent or the Company, as the case may be. If such termination shall occur prior to the Settlement Date for any
sale of Placement Shares, such Placement Shares shall settle in accordance with the provisions of this Agreement.
14. Notices. All notices or other communications required or permitted to be given by any party to any other
party pursuant to the terms of this Agreement shall be in writing, unless otherwise specified, and if sent to Agent, shall be
delivered to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Syndicate Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Hunton & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
and if to the Company and the Operating Partnership, shall be delivered to:
Physicians Realty Trust
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile:: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇@▇▇▇▇▇▇▇.▇▇▇
with a copy to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Each party to this Agreement may change such address for notices by sending to the parties to this Agreement written
notice of a new address for such purpose. Each such notice or other communication shall be deemed given (i) when delivered
personally, by email, or by verifiable facsimile transmission (with an original to follow) on or before 4:30 p.m., New York City
time, on a Business Day or, if such day is not a Business Day, on the next succeeding Business Day, (ii) on the next Business
Day after timely delivery to a nationally-recognized overnight courier and (iii) on the Business Day actually received if
deposited in the U.S. mail (certified or registered mail, return receipt requested, postage prepaid). For purposes of this
Agreement, “Business Day” shall mean any day on which the Exchange and commercial banks in the City of New York are
open for business.
An electronic communication (“Electronic Notice”) shall be deemed written notice for purposes of this Section 14 if
sent to the electronic mail address specified by the receiving party under separate cover. Electronic Notice shall be deemed
received at the time the party sending Electronic Notice receives confirmation of receipt by the receiving party. Any party
receiving Electronic Notice may request and shall be entitled to receive the notice on paper, in a nonelectronic form
(“Nonelectronic Notice”) which shall be sent to the requesting party within ten (10) days of receipt of the written request for
Nonelectronic Notice.
15. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company, the
Operating Partnership and Agent and their respective successors and the affiliates, controlling persons, officers and directors
referred to in Section 11 hereof. References to any of the parties contained in this Agreement shall be deemed to include the
23
successors and permitted assigns of such party. Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and permitted assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. Neither party may assign its
rights or obligations under this Agreement without the prior written consent of the other party.
16. Adjustments for Stock Splits. The parties acknowledge and agree that all share-related numbers contained in
this Agreement shall be adjusted to take into account any share consolidation, stock split, stock dividend, corporate
domestication or similar event effected with respect to the Placement Shares.
17. Entire Agreement; Amendment; Severability. This Agreement (including all schedules and exhibits attached
hereto and Placement Notices issued pursuant hereto) constitutes the entire agreement and supersedes all other prior and
contemporaneous agreements and undertakings, both written and oral, among the parties hereto with regard to the subject
matter hereof. Neither this Agreement nor any term hereof may be amended except pursuant to a written instrument executed
by the Company, the Operating Partnership and Agent. In the event that any one or more of the provisions contained herein, or
the application thereof in any circumstance, is held invalid, illegal or unenforceable as written by a court of competent
jurisdiction, then such provision shall be given full force and effect to the fullest possible extent that it is valid, legal and
enforceable, and the remainder of the terms and provisions herein shall be construed as if such invalid, illegal or unenforceable
term or provision was not contained herein, but only to the extent that giving effect to such provision and the remainder of the
terms and provisions hereof shall be in accordance with the intent of the parties as reflected in this Agreement.
18. GOVERNING LAW AND TIME; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER TO NEW
YORK CITY TIME. EACH OF THE COMPANY THE OPERATING PARTNERSHIP AND AGENT 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.
19. CONSENT TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW
YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION WITH ANY TRANSACTION CONTEMPLATED HEREBY, AND HEREBY IRREVOCABLY WAIVES,
AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT
PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR
PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE OF SUCH SUIT, ACTION OR
PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF
PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY
MAILING A COPY THEREOF (CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED) TO SUCH
PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT
SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF.
NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS
IN ANY MANNER PERMITTED BY LAW.
20. Use of Information. Agent may not disclose to any third party and may not use any information gained in
connection with this Agreement and the transactions contemplated by this Agreement, including due diligence, to advise any
party with respect to transactions not expressly approved by the Company.
21. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same instrument. Delivery of an executed Agreement by one
party to the other may be made by facsimile transmission, email or pdf.
22. Effect of Headings. The section and Exhibit headings herein are for convenience only and shall not affect the
construction hereof.
23. Permitted Free Writing Prospectuses. The Company represents, warrants and agrees that, unless it obtains
the prior consent of Agent, and Agent 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 Placement Shares that would constitute an Issuer Free Writing
Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the
Commission. Any such free writing prospectus consented to by Agent or by the Company, as the case may be, is hereinafter
24
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, 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 23 hereto are Permitted Free Writing Prospectuses.
24. Absence of Fiduciary Relationship. Each of the Company and the Operating Partnership acknowledges and
agrees that:
a. Agent is acting solely as agent in connection with the public offering of the Placement Shares and in
connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary
or advisory relationship between 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 Agent, 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 Agent has
advised or is advising the Company or the Operating Partnership on other matters, and Agent has no obligation to the Company
or the Operating Partnership with respect to the transactions contemplated by this Agreement except the obligations expressly
set forth in this Agreement;
b. it is capable of evaluating and understanding, and understands and accepts, the terms, risks and
conditions of the transactions contemplated by this Agreement;
c. Agent has not provided any legal, accounting, regulatory or tax advice with respect to the
transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the
extent it has deemed appropriate;
d. it is aware that Agent and its 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 that Agent has no obligation to
disclose such interests and transactions to it by virtue of any fiduciary, advisory or agency relationship or otherwise; and
e. it waives, to the fullest extent permitted by law, any claims it may have against Agent for breach of
fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and
agrees that Agent 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 or the
Operating Partnership, or employees or creditors of Company or the Operating Partnership, other than in respect of Agent’s
obligations under this Agreement and to keep information provided by the Company and the Operating Partnership to Agent
and Agent’s counsel confidential to the extent not otherwise publicly-available.
25. Definitions. As used in this Agreement, the following terms have the respective meanings set forth below:
“Applicable Time” means (i) each Representation Date and (ii) the time of each sale of any Placement Shares pursuant
to this Agreement.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433, relating to the
Placement Shares that (1) is required to be filed with the Commission by the Company, (2) 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 (3) is
exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Placement Shares or of the offering that
does not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not required to
be filed, in the form retained in the Company’s records pursuant to Rule 433(g) under the Securities Act.
“Property” or “Properties” means the real properties described in the Registration Statement and the Prospectus as
being owned by the Operating Partnership directly or indirectly through a subsidiary.
“Rule 172,” “Rule 405,” “Rule 415,” “Rule 424,” “Rule 424(b),” “Rule 430B,” “Rule 433,” and “Rule 462(e)” refer to
such rules under the Securities Act.
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
25
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.
All references in this Agreement to the Registration Statement, the Prospectus or any amendment or supplement to any
of the foregoing shall be deemed to include the copy filed with the Commission pursuant to ▇▇▇▇▇; all references in this
Agreement to any Issuer Free Writing Prospectus (other than any Issuer Free Writing Prospectuses that, pursuant to Rule 433,
are not required to be filed with the Commission) shall be deemed to include the copy thereof filed with the Commission
pursuant to ▇▇▇▇▇; 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 Shares by Agent outside of the United States.
[Remainder of the page intentionally left blank]
26
If the foregoing correctly sets forth the understanding between the Company, the Operating Partnership, and Agent,
please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding agreement
between the parties.
Very truly yours,
PHYSICIANS REALTY TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
PHYSICIANS REALTY L.P.
By: Physicians Realty Trust, its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
CONFIRMED AND ACCEPTED, as of the date
first above written
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
SCHEDULE 1
FORM OF PLACEMENT NOTICE
From: Physicians Realty Trust
TO: []
Attention: []
Subject: At Market Issuance-Placement Notice
Gentlemen:
Pursuant to the terms and subject to the conditions contained in the At Market Issuance Sales Agreement between
Physicians Realty Trust, a Maryland real estate investment trust (the “Company”), Physicians Realty L.P., a Delaware limited
partnership, and [ ] (“Agent”), dated [●], 2016, the Company hereby requests that Agent sell up to [ ] of the Company’s
Common Shares of beneficial interest, $0.01 par value per share, at a minimum market price of $ per share, during the time
period beginning [month, day, time] and ending [month, day, time].
SCHEDULE 2
The Company shall pay to Agent in cash, upon each sale of Placement Shares pursuant to this Agreement, an amount
up to 2.0% of the gross proceeds from each sale of Placement Shares.
SCHEDULE 3
Notice Parties
The Company
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇@▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇@▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Agent
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
SCHEDULE 6(g)
Subsidiaries
Subsidiary Jurisdiction of Organization
▇▇▇▇▇▇▇ — El Paso 8 Limited Partnership Wisconsin
▇▇▇▇▇▇▇ — Georgia 17, LLC Wisconsin
▇▇▇▇▇▇▇ — Georgia 20, LLC Wisconsin
▇▇▇▇▇▇▇ — Georgia 21, LLC Wisconsin
▇▇▇▇▇▇▇ — Wisconsin 24, LLC Wisconsin
▇▇▇▇▇▇▇ — Arizona 23, LLC Wisconsin
▇▇▇▇▇▇▇ — Georgia 6, LLC Wisconsin
▇▇▇▇▇▇▇ — Michigan 5, LLC Wisconsin
▇▇▇▇▇▇▇ — Michigan 6, LLC Wisconsin
▇▇▇▇▇▇▇ — Ohio 9, LLC Wisconsin
▇▇▇▇▇▇▇ — Ohio 19, LLC Wisconsin
▇▇▇▇▇▇▇ — Texas 8, LLC Wisconsin
▇▇▇▇▇▇▇ — Illinois 12, LLC Wisconsin
▇▇▇▇▇▇▇ — Maine 15, LLC Wisconsin
▇▇▇▇▇▇▇ — Illinois 18, LLC Wisconsin
DOC-FSH El Paso Medical Center, LLC Wisconsin
DOC-ELFP Atlanta MOBs, LLC Wisconsin
DOC-LifeCare Plano LTACH, LLC Wisconsin
DOC-CCSC Crescent City Surgical Centre,
LLC
Wisconsin
DOC-MP TXAZ, LLC Wisconsin
DOC-SSH Slidell Surgical Center, LLC Wisconsin
DOC-Cornerstone Pensacola MOB, LLC Wisconsin
DOC-CONS Columbus MOB, LLC Wisconsin
Eastwind MOB, LLC Ohio
DOC-CCSC Crescent City Land, LLC Wisconsin
DOC-Great Falls MT ASC, LLC Wisconsin
DOC-FSH San Antonio MOB, LLC Wisconsin
DOC-PDMC Atlanta, LLC Wisconsin
DOC-21st Century Sarasota, LLC Wisconsin
DOC-LifeCare Pittsburgh LTACH, LLC Wisconsin
DOC-LifeCare Ft. Worth LTACH, LLC Wisconsin
DOC-Pinnacle Harrisburg MOBs, LLC Wisconsin
DOC-SBO MOB, LLC Wisconsin
DOC-Grenada MOB, LLC Wisconsin
DOC-Carmel MOB, LLC Wisconsin
DOC-MSMOC Jackson MOB, LLC Wisconsin
DOC-Premier Landmark MOBs, LLC Wisconsin
DOC-PMP Monroe MOB, LLC Wisconsin
DOC-Summit Bloomington MOB, LLC Wisconsin
DOC-Renaissance Oshkosh MOB, LLC Wisconsin
DOC-SIM Monroe ASC, LLC Wisconsin
DOC-Oaks Lady Lake MOB, LLC Wisconsin
DOC-CRMC Carlisle MOB, LLC Wisconsin
DOC-WSUPG ▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ MOB, LLC Wisconsin
DOC-Indiana 7 MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ MOB, LLC Wisconsin
DOC-4518 Union Deposit MOB, LLC Wisconsin
2
DOC-4520 Union Deposit MOB, LLC Wisconsin
DOC-240 Grandview Avenue MOB, LLC Wisconsin
DOC-32 Northeast Drive MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, LLC Wisconsin
Southern Point LLC Delaware
▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ MOB, LLC Wisconsin
Zangmeister Center LLC Delaware
DOC-170 ▇▇▇▇▇▇ Station Road MOB, LLC Wisconsin
COG Real Estate Partners II, LLC Ohio
▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
Cardinal Westerville II LLC Ohio
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, LLC Wisconsin
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, LLC Wisconsin
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, LLC Wisconsin
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, LLC Wisconsin
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, LLC Wisconsin
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇, LLC
Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ MOB, LLC Wisconsin
DOC-610 19th Street MOB, LLC Wisconsin
DOC-Middletown Medical MOBs, LLC Wisconsin
DOC-311 West ▇▇▇▇▇▇▇▇▇ Street MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, LLC*
(converted to DE LLC – DOC-8550 ▇▇▇▇ Road
MOB, LLC)
Delaware
DOC-24 Physicians Drive MOB, LLC Wisconsin
DOC-207 Stonebridge Boulevard ASC, LLC Wisconsin
DOC-DG Holding, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
MMB Medical Partners, LLC Delaware
MTKA II MP LLC Delaware
VH Medical Partners LLC Delaware
Crystal Medical Building, LLC Minnesota
Savage Medical Building, LLC Minnesota
Dell Medical Building, LLC Minnesota
DOC-MSM Greenwood MOBs, LLC Wisconsin
CAN Real Estate, LLC Indiana
DOC-Indiana American MOBs, LLC Wisconsin
DOC-MP Holding, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇ MOB, LLC Wisconsin
DOC-309 Renaissance, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, LLC Wisconsin
DOC-CCP MOBs, LLC New York
▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, LLC Wisconsin
▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, LLC Wisconsin
3
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇, LLC Wisconsin
▇▇▇-▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, LLC Wisconsin
DOC-5319 ▇▇▇▇ Drive MOB, LLC Wisconsin
DOC-15255 ▇▇▇ ▇▇▇▇▇▇▇ Parkway MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇, LLC Wisconsin
▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇, LLC Wisconsin
▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ MOB, LLC Wisconsin
DOC-250 Fame Avenue MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ MOB, LLC Ohio
▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
DOC-▇▇ ▇▇▇▇, LLC Wisconsin
DOC-Katy Medical MOBs, LLC Wisconsin
DOC-7277 ▇▇▇▇▇’▇ Mill Road MOB, LLC Wisconsin
▇▇▇-▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ MOBs, LLC Wisconsin
DOC-Great Falls Holding, LLC Wisconsin
DOC-2000 ▇▇▇▇▇ ▇▇▇▇▇▇ Boulevard MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, LLC Wisconsin
▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, LLC Wisconsin
DOC-5150 North ▇▇▇▇▇ Highway MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, LLC Wisconsin
DOC-5101 North ▇▇▇▇▇ Highway MOB, LLC Wisconsin
▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, LLC Wisconsin
DOC-4397 ▇▇▇▇▇▇ ▇▇▇▇▇▇ Boulevard ASC, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ MOB, LLC Wisconsin
DOC-LM Kansas City MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ MOBs, LLC Wisconsin
DOC-1203 ▇▇▇▇▇▇ Mill Road MOB, LLC Wisconsin
DOC-Nashville MOB, LLC Wisconsin
Cambridge Nashville Medical Center, L.P. Tennesee
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇, LLC Wisconsin
▇▇▇-▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇, LLC Wisconsin
Great Falls Clinic-Frauenshuh, LLC Minnesota
▇▇▇-▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ASC, LLC Wisconsin
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇, LLC Wisconsin
DOC-1609 Hospital Parkway MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ASC, LLC Wisconsin
DOC-833 St. Vincent’s Drive MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ASC, LLC Wisconsin
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇, LLC Wisconsin
DOC-1609 Hospital Parkway MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
4
▇▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, LLC Wisconsin
▇▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, LLC Wisconsin
DOC-890 North Blue ▇▇▇ Way MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ MOB, LLC Wisconsin
DOC-2213 Decatur Highway ASC, LLC Wisconsin
DOC-2900 Curve Crest MOB, LLC Wisconsin
▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
DOC-FREH El Paso, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, LLC Wisconsin
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
DOC-16929 ▇▇▇▇▇▇▇ Street MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ MOB, LLC Wisconsin
DOC-225 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Way MOB, LLC Wisconsin
DOC-Harrodsburg Road MOBs, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇ MOB, LLC Wisconsin
▇▇▇-▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
DOC-908 North ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
DOC-350 Peak One Drive MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, LLC Wisconsin
▇▇▇-▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇, LLC Wisconsin
DOC-1973 South ▇▇▇▇ ▇▇▇▇▇ Parkway MOB, LLC Wisconsin
▇▇▇-▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, LLC Wisconsin
DOC-810 East ▇▇▇▇▇▇ Avenue MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
5
▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ MOB,
LLC
Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
▇▇▇-▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ MOB, LLC Wisconsin
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▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, LLC Wisconsin
▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, LLC Wisconsin
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▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ MOB, LLC Wisconsin
DOC-Ocala Villages, LLC Wisconsin
DOC-100 Pilot Medical Drive MOB, LLC Wisconsin
DOC-▇▇ ▇▇▇▇▇▇▇▇▇ MOB, LLC Wisconsin
EXHIBIT 7(1)
Form of Representation Date Certificate
This Representation Date Certificate (this “Certificate”) is executed and delivered in connection with Section 7(1) of each At
Market Issuance Sales Agreement (each, an “Agreement”), dated [•], and entered into by and among Physician Realty Trust
(the “Company”), Physicians Realty L.P. (the “Operating Partnership”) and each of [•] (each, an “Agent”). All capitalized
terms used but not defined herein shall have the meanings given to such terms in the Agreement.
The undersigned officer of the Company hereby certifies as follows:
1. As of the date of this Certificate (i) the Registration Statement does not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not
misleading and (ii) neither the Registration Statement nor the Prospectus contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading and (iii) no event has occurred as a result of which it is necessary to
amend or supplement the Prospectus in order to make the statements therein not untrue or misleading for this paragraph 1 to be
true.
2. Each of the representations and warranties of the Company and Operating Partnership contained in the
Agreement were, when originally made, and are, as of the date of this Certificate, true and correct in all material respects.
3. Except as waived by Agent in writing, each of the covenants required to be performed by the Company and
Operating Partnership in the Agreement on or prior to the date of the Agreement, this Representation Date, and each such other
date prior to the date hereof as set forth in the Agreement, has been duly, timely and fully performed in all material respects and
each condition required to be complied with by the Company and Operating Partnership on or prior to the date of the
Agreement, this Representation Date, and each such other date prior to the date hereof as set forth in the Agreement has been
duly, timely and fully complied with in all material respects.
4. Subsequent to the date of the most recent financial statements in the Prospectus, and except as described in
the Prospectus, including Incorporated Documents, there has been no Material Adverse Effect.
5. No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been
issued, and no proceedings for that purpose have been instituted or are pending or threatened by any securities or other
governmental authority (including, without limitation, the Commission).
6. No order suspending the effectiveness of the Registration Statement or the qualification or registration of the
Placement Shares under the securities or Blue Sky laws of any jurisdiction are in effect and no proceeding for such purpose is
pending before, or threatened, to the Company’s knowledge or in writing by, any securities or other governmental authority
(including, without limitation, the Commission).
The undersigned has executed this Representation Date Certificate as of the date first written above.
By:
Name:
Title:
EXHIBIT 7(m)(i)
EXHIBIT 7(m)(ii)
EXHIBIT 7(m)(iii)
EXHIBIT 7(m)(iv)
EXHIBIT 23
Permitted Issuer Free Writing Prospectuses
None.