Underwriting Agreement

ASSOCIATED ESTATES REALTY CORPORATION (An Ohio Corporation) 6,500,000 Common Shares Plus an Option to Purchase From the Company Up to 975,000 Additional Securities. (Without Par Value) Underwriting Agreement



EXECUTION COPY

ASSOCIATED ESTATES REALTY CORPORATION
(an Ohio corporation)

6,500,000 Common Shares Plus an option to purchase from the Company up to 975,000 additional Securities.
(without par value)
New York, New York
May 29, 2013
To the Representatives
named in Schedule I
hereto of the several
Underwriters named in
Schedule II-A hereto

Ladies and Gentlemen:

Associated Estates Realty Corporation, a corporation organized under the laws of the State of Ohio (the “Company”), and Citigroup Global Markets, Inc., as agent for one of its affiliates (“Citigroup”), Merrill Lynch, Pierce, Fenner & Smith Incorporated, as agent for one of its affiliates (“Merrill Lynch”), and Wells Fargo Securities, LLC, as agent for one of its affiliates (“Wells Fargo” and, together with Citigroup and Merrill Lynch, in such capacities, the “Forward Sellers”), at the Company's request in connection with the letter agreement dated the date hereof between the Company and Citibank, N. A., acting through Citigroup, as agent, the letter agreement dated the date hereof between the Company and Bank of America, N.A., acting through Merrill Lynch, as agent, and the letter agreement dated the date hereof between the Company and Wells Fargo Bank, National Association, acting through Wells Fargo as agent (each such letter agreement, a “Forward Agreement” and, together, the “Forward Agreements”), each relating to the forward sale by the Company of a number of common shares, without par value, of the Company (“Common Shares”) equal to the number of Common Shares to be borrowed and sold by each of the Forward Sellers pursuant to this Agreement, confirm their respective agreements with Citigroup, Merrill Lynch and Wells Fargo (together, the “Representatives”) and each of the other Underwriters named in Schedule II-A hereto (collectively with the Representatives, the “Underwriters”) with respect to (i) the sale by the Forward Sellers and the purchase by the Underwriters, acting severally and not jointly, of the respective numbers of Common Shares set forth in Schedules II-A and II-B hereto and (ii) the grant to the Underwriters, in each case acting severally and not jointly, of the option described in Section 3 hereof to purchase all or any part of 975,000 additional Common Shares (the “Option Underwritten Securities”). Citibank, N. A., Bank of America, N.A. and Wells Fargo Bank, National Association, in their capacities as forward counterparties, are hereinafter referred to as the “Forward Counterparties.” The 6,500,000 Common Shares to be initially borrowed and sold
______________________
(1) Plus an option to purchase from the Company up to 975,000 additional Securities.

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by the Forward Sellers to the Underwriters (the “Initial Underwritten Securities”) and up to 975,000 Option Underwritten Securities to be borrowed and sold by the Forward Sellers to the Underwriters upon exercise by the Underwriters of the option described in Section 3 hereof are referred to collectively as the “Underwritten Securities,” subject to Section 3(b) hereof. The Underwritten Securities to be purchased by the Underwriters and any Common Shares to be issued and sold by the Company to the Underwriters pursuant to Section 13 hereof are hereinafter called, collectively, the “Securities.”
To the extent there are no additional Underwriters listed on Schedule II-A other than you, the term Representatives as used herein shall mean you, as Underwriters, and the terms Representatives and Underwriters shall mean either the singular or plural as the context requires. Any reference herein to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of Form S‑3 which were filed under the Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be; and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference. Certain terms used herein are defined in Section 22 hereof.
1.Representations and Warranties. The Company represents and warrants to, and agrees with, each Underwriter, each Forward Seller and each Forward Counterparty, as of the date hereof, as of the Execution Time, as of the Closing Date (as defined herein) and as of each Date of Delivery (as defined herein), as set forth below in this Section 1.
(a)The Company meets the requirements for use of Form S‑3 under the Act and has prepared and filed with the Commission an automatic shelf registration statement, as defined in Rule 405 (the file number of which is set forth in Schedule I hereto) on Form S‑3, including a related Base Prospectus, for registration under the Act of the offering and sale of the Securities. Such Registration Statement, including any amendments thereto filed prior to the Execution Time, became effective upon filing. The Company may have filed with the Commission, as part of an amendment to the Registration Statement or pursuant to Rule 424(b), one or more preliminary prospectus supplements relating to the Securities, each of which has previously been furnished to you. The Company will file with the Commission a final prospectus supplement relating to the Securities in accordance with Rule 424(b). As filed, such final prospectus supplement shall contain all information required by the Act and the rules thereunder, and, except for modifications to which the Representatives do not reasonably object, shall be in all substantive respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the Base Prospectus and any Preliminary Prospectus) as the Company has advised you, prior to the Execution Time, will be included or made therein. The Registration

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Statement, at the Execution Time, meets the requirements set forth in Rule 415(a)(1)(x). The initial Effective Date of the Registration Statement was not earlier than the date three years before the Execution Time.
(b)On each Effective Date, the Registration Statement did, and when the Final Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date and on any date on which Option Underwritten Securities are purchased, if such date is not the Closing Date (each, a “Date of Delivery”), the Final Prospectus (and any supplement thereto) will, comply in all material respects with the applicable requirements of the Act and the rules thereunder; on each Effective Date and at the Execution Time, the Registration Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and on the date of any filing pursuant to Rule 424(b) and on the Closing Date and any Date of Delivery, the Final Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to the information contained in or omitted from the Registration Statement or the Final Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter, any Forward Seller or any Forward Counterparty specifically for inclusion in the Registration Statement or the Final Prospectus (or any supplement thereto), it being understood and agreed that the only such information furnished by or on behalf of any Underwriter, any Forward Seller or any Forward Counterparty consists of the information described as such in Section 9 hereof.
(c)The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus, 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 and, when read together with the other information in the Final Prospectus, (a) on each Effective Date, (b) at the Execution Time and (c) at the Closing Date and any Date of Delivery did not and will not contain an 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.
(d)(i) The Disclosure Package and the price to the public, the number of Securities to be included on the cover page of the Final Prospectus, when taken together as a whole, and (ii) each electronic road show when taken together as a whole with the Disclosure Package and the price to the public, the number of Securities to be included on the cover page of the Final Prospectus, does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Company by any Underwriter, any Forward Seller or any Forward Counterparty specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of

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any Underwriter, Forward Seller or any Forward Counterparty consists of the information described as such in Section 9 hereof.
(e)(i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Sections 13 or 15(d) of the Exchange Act or form of prospectus), (iii) 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 Securities in reliance on the exemption in Rule 163, and (iv) at the Execution Time and on each such time this representation is repeated or deemed to be made (with such date being used as the determination date for purposes of this clause (iv)), the Company was or is (as the case may be) a “well-known seasoned issuer” as defined in Rule 405. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405, that initially became effective within three years of the date hereof, and the Securities, since their registration on the Registration Statement, have been and remain eligible for registration by the Company on a Rule 405 “automatic shelf registration statement.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Act objecting to the use of the automatic shelf registration statement form.
(f)(i) At the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Securities and (ii) as of the Execution Time (with such date being used as the determination date for purposes of this clause (ii)), 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.
(g)Each Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the Registration Statement, including any document incorporated therein by reference and any prospectus supplement deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by any Underwriter, any Forward Seller or any Forward Counterparty specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter, any Forward Seller or any Forward Counterparty consists of the information described as such in Section 9 hereof.
(h)The Registration Statement is not the subject of a pending proceeding or examination under Section 8(d) or 8(e) of the Act, and the Company is not the subject of a pending proceeding under Section 8A of the Act in connection with the offering of the Securities.
(i)The Company has been duly organized and is validly existing and in good standing as a corporation under the laws of the State of Ohio, with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Disclosure Package and the Final Prospectus; and the Company is duly qualified to

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do business and in good standing as a foreign corporation in all other jurisdictions where its ownership or leasing of properties or the conduct of its business requires such qualification, except where the failure to qualify and be in good standing would not reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business.
(j)Each subsidiary of the Company has been duly incorporated or formed and is validly existing as a corporation, partnership, limited liability company or real estate investment trust in good standing or in full force and effect under the laws of the jurisdiction of its incorporation or formation, has corporate, partnership, limited liability company or real estate investment trust power and authority to own, lease and operate its properties and to conduct its business and is duly qualified as a foreign corporation, partnership, limited liability company or real estate investment trust 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 would not reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business.
(k)The issued and outstanding capital shares of the Company have been duly authorized and validly issued and are fully paid and non‑assessable and are not subject to preemptive or other similar rights. The capital shares of the Company conform in all material respects to all statements relating thereto contained in the Disclosure Package and the Final Prospectus. All of the issued and outstanding capital stock of the Company's subsidiaries have been duly authorized and validly issued, are fully paid and non‑assessable and, except as disclosed in the Disclosure Package and the Final Prospectus, are owned directly or indirectly by the Company, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for such security interests, mortgages, pledges, liens, encumbrances, claims or equities that would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business.
(l)Since the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Final Prospectus, except as otherwise stated therein, (A) there has not occurred any material adverse change or any development that is reasonably likely to involve a material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, from that set forth in the Disclosure Package and the Final Prospectus (exclusive of any supplements thereto), (B) there have been no transactions entered into by the Company or its subsidiaries which are material with respect to the Company and its subsidiaries taken as a whole other than those in the ordinary course of business and (C) except for regular quarterly distributions on the Common Shares, and regular distributions declared, paid or made in accordance with the terms of any class or series of the Company's preferred shares,

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there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital shares.
(m)The consolidated historical financial statements and schedules of the Company and its consolidated subsidiaries included in the Registration Statement, the Preliminary Prospectus and the Final Prospectus present fairly the financial condition, results of operations and cash flows of the Company as of the dates and for the periods indicated, comply in all material respects as to form with the applicable accounting requirements of the Act and have been prepared in conformity with generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as otherwise noted therein). The selected financial data and the summary financial information included in the Registration Statement, the Preliminary Prospectus and the Final Prospectus fairly present, in all material respects, on the basis stated in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, the information included therein. The statements of certain revenues and expenses of the properties acquired or proposed to be acquired included in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, if any, present fairly in all material respects the information set forth therein, have been prepared in conformity with GAAP applied on a consistent basis and otherwise have been prepared in accordance with the applicable financial statement requirements of Rule 3‑14 of the Exchange Act with respect to real estate operations acquired or to be acquired. The pro forma financial statements included in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, if any, include assumptions that provide a reasonable basis for presenting the significant effects directly attributable to the transactions and events described therein, the related pro forma adjustments give appropriate effect to those assumptions, and the pro forma adjustments reflect the proper application of those adjustments to the historical financial statement amounts in the pro forma financial statements included in the Registration Statement, the Preliminary Prospectus and the Final Prospectus. The pro forma financial statements included in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, if any, comply as to form in all material respects with the applicable accounting requirements of Regulation S‑X under the Act and the pro forma adjustments have been properly applied to the historical amounts in the compilation of those statements. All disclosures contained in the Registration Statement, the Disclosure Package and the Final Prospectus regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission), if any, comply in all material respects with Regulation G under the Exchange Act and Item 10 of Regulation S-K under the Act, to the extent applicable. The interactive data in eXtensible Business Reporting Language included in the Disclosure Package and the Final Prospectus 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.
(n)PricewaterhouseCoopers LLP, who have certified certain financial statements of the Company and its consolidated subsidiaries and delivered their report with respect to the audited consolidated financial statements and schedules included in the Registration Statement, the Disclosure Package and the Final Prospectus, are independent public accountants with respect to the Company within the meaning of the Act and the applicable published rules and regulations thereunder.

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(o)The Company has full right, power and authority to enter into this Agreement and each Forward Agreement, and this Agreement and each Forward Agreement has been duly authorized, executed and delivered by the Company.
(p)Each of the Forward Agreements constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally or by equitable principles relating to enforceability; and the Forward Agreements conform in all material respects to the descriptions thereof in the Registration Statement, the Disclosure Package and the Final Prospectus.
(q)Any Common Shares to be issued and sold by the Company pursuant to Section 13 hereof have been duly authorized by the Company for issuance and sale pursuant to this Agreement and, when issued and delivered pursuant to this Agreement against payment of the consideration therefor specified herein, will be validly issued, fully paid and non‑assessable. The Securities conform in all material respects to all statements relating thereto contained in the Disclosure Package and the Final Prospectus; and the certificates for the Securities are in valid and sufficient form. The issuance of any Common Shares pursuant to Section 13 hereof is not subject to preemptive or other similar rights; and, except as set forth in the Disclosure Package and the Final Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, capital shares of or ownership interests in the Company are outstanding.
(r)The Common Shares (if any) to be purchased by the Forward Counterparties from the Company pursuant to the Forward Agreements have been duly authorized and reserved for issuance to the Forward Counterparties pursuant thereto and, when issued and delivered pursuant to the Forward Agreements against payment of the consideration therefor specified therein, will be validly issued, fully paid and non-assessable; and the issuance of such Common Shares will not be subject to any preemptive or other similar rights.
(s)Starting with its taxable year ended December 31, 1993, the Company has elected under Section 856(c) of the Internal Revenue Code of 1986, as amended (the “Code”), to be taxed as a real estate investment trust (“REIT”), and such election has not been revoked or terminated. The Company has qualified as a REIT for its taxable years ended December 31, 1993 through December 31, 2012 and the Company has operated and intends to continue to operate so as to qualify as a REIT thereafter.
(t)Neither the Company nor any of its subsidiaries is, or will be immediately after the consummation of the transactions contemplated by this Agreement and the Forward Agreements, required to be registered as an investment company under the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(u)No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated by this Agreement or the Forward Agreements, except such as have been obtained or made by the Company under the Act, the Exchange Act, applicable state securities or blue sky

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laws, real estate syndication laws or the rules of the Financial Industry Regulatory Authority (“FINRA”) in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated by this Agreement and the Forward Agreements and in the Disclosure Package and the Final Prospectus.
(v)Neither the Company nor any of its subsidiaries is in violation of its respective charter or by-laws or other organizational document, or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or its properties may be bound, where such defaults in the aggregate would reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, and compliance by the Company with its obligations under this Agreement and the Forward Agreements will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its subsidiaries pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such action result in any violation of the provisions of the charter or by-laws or other organizational document of the Company or its subsidiaries or, to the best of its knowledge, any law, administrative regulation or administrative or court order or decree.
(w)No holders of securities of the Company have rights to the registration of such securities under the Registration Statement.
(x)No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property is pending or, to the best knowledge of the Company, threatened that (i) would reasonably be expected to have a material adverse effect on the performance of this Agreement or the Forward Agreements or the consummation of any of the transactions contemplated hereby or thereby or (ii) would reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto). All pending legal or governmental proceedings to which the Company or any of its subsidiaries is a party or of which any of their respective property is the subject which are not described in the Disclosure Package and the Final Prospectus, including routine litigation incidental to the business, are, considered in the aggregate, not material; and there are no material contracts or documents of the Company or its subsidiaries which are required to be filed as exhibits to the Registration Statement by the Act or the rules thereunder which have not been so filed.
(y)(A) The Company or its subsidiaries have good and marketable title or leasehold interest, as the case may be, to the portfolio properties (the “Portfolio Properties”)

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described in the Disclosure Package and the Final Prospectus as being owned by the Company or its subsidiaries (except with respect to properties described in the Disclosure Package and the Final Prospectus as being held by the Company through joint ventures), in each case free and clear of all liens, encumbrances, claims, security interests and defects (collectively, “Defects”), except such as do not materially interfere with the use made and proposed to be made of such property or interests by the Company or such subsidiaries, as the case may be; (B) the joint venture interest in each property described in the Disclosure Package and the Final Prospectus as being held by the Company through a joint venture is owned free and clear of all Defects except for such Defects that will not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business; (C) all liens, charges, encumbrances, claims or restrictions on or affecting the properties and assets of the Company or its subsidiaries are disclosed in the Disclosure Package and the Final Prospectus, subject to the exception set forth in clause (A) above; (D) except as disclosed in the Disclosure Package and the Final Prospectus, none of the Company or its subsidiaries is in default under any of the leases governing the Portfolio Properties and the Company does not know of any event which, but for the passage of time or the giving of notice, or both, would constitute a default under any of such leases, except such defaults that would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business; (E) no tenant under any of the leases pursuant to which the Company or its subsidiaries leases any of the Portfolio Properties has an option or right of first refusal to purchase the premises demised under such lease except (i) as otherwise described in the Disclosure Package and the Final Prospectus and (ii) for such options or rights of first refusal that, if exercised, would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business; (F) to the best knowledge of the Company, each of the Portfolio Properties complies with all applicable codes and zoning laws and regulations, except for such failures to comply which would not individually or in the aggregate have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business; and (G) the Company does not have knowledge of any pending or threatened condemnation, zoning change or other proceeding or action that will in any manner affect the size of, use of, improvements on, construction on or access to the Portfolio Properties, except such proceedings or actions that would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business.
(z)The Company or its subsidiaries have title insurance on each of the Portfolio Properties (except with respect to each property described in the Disclosure Package and the Final Prospectus as held by the Company through a joint venture) in an amount at least equal to the cost of acquisition of such Portfolio Property except, in each case, where the

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failure to maintain such title insurance would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business; the joint venture owning each property described in the Disclosure Package and the Final Prospectus as held by the Company through a joint venture has title insurance on such property in an amount at least equal to the greater of (A) the cost of acquisition of such Portfolio Property by such joint venture and (B) the cost of construction of the improvements located on such Portfolio Property, except in each case, where the failure to maintain such title insurance would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business.
(aa) The mortgages and deeds of trust encumbering the Portfolio Properties are not convertible and neither the Company nor any of its subsidiaries holds a participating interest therein and said mortgages and deeds of trust are not cross‑defaulted or cross‑collateralized to any property not owned by the Company or its subsidiaries.
(bb) Company and its subsidiaries (i) are in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received and are in compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) have not received notice of any actual or potential liability under any Environmental Law, except where such non‑compliance with Environmental Laws, failure to receive required permits, licenses or other approvals, or liability would not, individually or in the aggregate, have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto). Except as set forth in the Disclosure Package and the Final Prospectus, neither the Company nor any of the subsidiaries has been named as a “potentially responsible party” under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended.
(cc) In the ordinary course of its business, the Company periodically reviews the effect of Environmental Laws on the business, operations, Portfolio Properties and other assets of the Company and its subsidiaries, in the course of which it identifies and evaluates associated costs and liabilities (including, without limitation, any capital or operating expenditures required for clean‑up, closure of properties or compliance with Environmental Laws, or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties). On the basis of such review, the Company has reasonably concluded that such associated costs and liabilities would not, singly or in the aggregate, have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of

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any supplement thereto).
(dd) The Company has filed all tax returns that are required to be filed or has requested extensions thereof (except in any case in which the failure so to file would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)) and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(ee) No labor problem or dispute with the employees of the Company or any of its subsidiaries exists or, to the best knowledge of the Company, is threatened or imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or its subsidiaries' principal suppliers, contractors or customers, that would reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(ff) No subsidiary of the Company is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such subsidiary's capital stock, from repaying to the Company any loans or advances to such subsidiary from the Company, except as described in or contemplated by the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(gg) The Company and its subsidiaries possess all licenses, certificates, permits and other authorizations issued by all applicable authorities necessary to conduct their respective businesses, and neither the Company nor any such subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(hh) Neither the Company nor any of its subsidiaries is, or will be immediately after the consummation of the transactions contemplated by this Agreement or the Forward Agreements, required to own or possess any trademarks, service marks, trade names or copyrights in order to conduct the business now operated by them.

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(ii) No relationship, direct or indirect, exists between or among any of the Company or its subsidiaries, on the one hand, and any director, officer, shareholder, customer or supplier of the Company or its subsidiaries, on the other hand, which is required by the Act, the Exchange Act or the respective rules thereunder to be described in the Registration Statement or the Final Prospectus which is not so described or is not described as required. There are no outstanding loans, advances (except normal advances for business expenses in the ordinary course of business) or guarantees of indebtedness by the Company to or for the benefit of any of the officers or directors of the Company or any of their respective family members, except as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus.
(jj) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance, as to itself and its subsidiaries, that (i) transactions are executed in accordance with management's general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management's general or specific authorization; (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; (v) the interactive data in eXtensible Business Reporting Language included in the Disclosure Package and the Final Prospectus fairly presents the information called for in all material respects and is prepared in accordance with the Commission's rules and guidelines applicable thereto; and (vi) the principal executive officer and principal financial officer of the Company have made all certifications required by Sections 302 and 906 of the Sarbanes-Oxley Act of 2002 and any related rules and regulations promulgated by the Commission, and the statements contained in any such certification are complete and correct. The Company's internal controls over financial reporting are effective and the Company is not aware of any material weakness in its internal controls over financial reporting.
(kk) The Company maintains “disclosure controls and procedures” (as such term is defined in Rule 13a‑15(e) under the Exchange Act) for itself and its subsidiaries; such disclosure controls and procedures are effective.
(ll) The Company has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(mm) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate 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

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party or official thereof or any candidate for foreign political office, in contravention of the FCPA.
(nn) Neither the Company nor any of its subsidiaries is aware of, has taken or will take any action, directly or indirectly, that would result in a violation of applicable money laundering statutes and the rules and regulations thereunder or any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”); and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(oo) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is currently subject to any sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of this offering or of the settlement of the Forward Agreements, as the case may be, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
Any certificate signed by any officer of the Company and delivered to the Representatives or counsel for the Underwriters or counsel for the Forward Sellers and the Forward Counterparties in connection with the offering of the Securities shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Underwriter, each Forward Seller and each Forward Counterparty as of the date of such certificate.
2.Representations and Warranties by the Forward Sellers. Each of the Forward Sellers severally represents and warrants to each Underwriter and the Company as of the date hereof, as of the Execution Time, as of the Closing Date, and, if the Forward Sellers are selling Option Underwritten Securities on a Date of Delivery, as of each such Date of Delivery, as follows:
(a)This Agreement has been duly authorized, executed and delivered by such Forward Seller and, at the Closing Date and at each Date of Delivery, such Forward Seller will have full right, power and authority to sell, transfer and deliver the Initial Underwritten Securities or the Option Underwritten Securities, as the case may be.
(b)The Forward Agreement between the Company and the applicable Forward Counterparty has been duly authorized, executed and delivered by such Forward Counterparty and constitutes a valid and binding agreement of such Forward Counterparty, enforceable against such Forward Counterparty in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally or by equitable principles relating to enforceability.
(c)Such Forward Seller will, at the Closing Date and at each Date of Delivery, have the free and unqualified right to transfer the Initial Underwritten Securities or the

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Option Underwritten Securities, as the case may be, to be sold by such Forward Seller, and the Initial Underwritten Securities or the Option Underwritten Securities, at the Closing Date or the relevant Date of Delivery, as the case may be, will be free and clear of any security interest, mortgage, pledge, lien, charge, claim, equity or encumbrance of any kind; and upon delivery of such Initial Underwritten Securities or such Option Underwritten Securities, as the case may be, and payment of the purchase price therefor as herein contemplated, assuming each of the Underwriters has no notice of any adverse claim, each of the Underwriters will have the free and unqualified right to transfer the Initial Underwritten Securities or the Option Underwritten Securities, as the case may be, purchased by it from such Forward Seller, free and clear of any security interest, mortgage, pledge, lien, charge, claim, equity or encumbrance of any kind.
3.Purchase and Sale. (a) (i) Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, each Forward Seller and the Company (with respect to any Common Shares issued and sold by the Company pursuant to Section 13 hereof), severally and not jointly, hereby agrees to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from each Forward Seller and the Company (with respect to any Common Shares issued and sold by the Company pursuant to Section 13 hereof) the respective numbers of Initial Underwritten Securities set forth in Schedule II-A hereto opposite its name (or the proportionate number of Common Shares to be issued and sold by the Company pursuant to Section 13 hereof, as the case may be) at $16.56 per share (the “Purchase Price”).
(ii)    Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, each Forward Seller (as set forth in Schedule II-B) and the Company (with respect to any Common Shares to be issued and sold by the Company pursuant to Section 13 hereto), severally and not jointly, agrees to sell to the Underwriters the Option Underwritten Securities, and the Underwriters shall have the right to purchase, severally and not jointly, up to 975,000 Option Underwritten Securities at the Purchase Price less an amount equal to any dividend paid or payable on the Initial Underwritten Securities and not payable on the Option Underwritten Securities. Said option may be exercised in whole or in part at any time on or before the 30th day after the date of the Final Prospectus upon written or telegraphic notice by the Representatives to the Company setting forth the number of Option Underwritten Securities as to which the several Underwriters are exercising the option and the Date of Delivery. The number of Option Underwritten Securities to be purchased by each Underwriter shall be the same percentage of the total number of Option Underwritten Securities to be purchased by the several Underwriters as such Underwriter is purchasing of the Initial Underwritten Securities, subject to such adjustments as you in your absolute discretion shall make to eliminate any fractional shares.
(b)    In the event that a Forward Seller does not borrow and deliver for sale the number of Common Shares set forth in Schedule I-B opposite the name of such Forward Seller (i) under the column captioned “Number of Initial Underwritten Securities To Be Sold” on the Closing Date or (ii) if applicable, under the column captioned “Number of Option Underwritten Securities To Be Sold” (or such proportionately reduced number of Option Underwritten Securities to be borrowed and delivered for sale by such Forward Seller

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based upon the number of Option Underwritten Securities as to which the option described in Section 3(a)(ii) hereof is being exercised with respect to such Date of Delivery) on the applicable Date of Delivery, in each case pursuant to the terms of the applicable Forward Agreement, the Company shall, in accordance with Section 13 hereof, issue and sell in whole but not in part a number of Common Shares equal to the number of Common Shares that such Forward Seller does not deliver. In such event, the aggregate number of Common Shares that such Forward Seller does so deliver for sale shall be the “Initial Underwritten Securities” or “Option Underwritten Securities,” as the case may be, with respect to such Forward Seller.
(c)    If a Forward Seller does not borrow and deliver for sale the number of Common Shares set forth in Schedule I-B opposite the name of such Forward Seller (i) under the column captioned “Number of Initial Underwritten Securities To Be Sold” or (ii) if applicable, under the column captioned “Number of Option Underwritten Securities To Be Sold” (or such proportionately reduced number of Option Underwritten Securities to be borrowed and delivered for sale by such Forward Seller based upon the number of Option Underwritten Securities as to which the option described in Section 3(a)(ii) hereof is being exercised with respect to such Date of Delivery), as the case may be, such Forward Seller will use its best efforts to notify the Company no later than 5:00 p.m., New York City time, on the first business day prior to the Closing Date or the relevant Date of Delivery, as the case may be.
(4)    Delivery and Payment. Delivery of and payment for the Underwritten Securities shall be made by the Underwriters to each Forward Seller (or, in the case of delivery of any Common Shares to be issued and sold by the Company in accordance with Section 13 hereof, to the Company) in Federal or other funds immediately available in New York City against delivery of such Underwritten Securities (or any Common Shares to be issued and sold by the Company pursuant to Section 13 hereof, as the case may be) for the respective accounts of the Underwriters on the date and at the time specified in Schedule I hereto or at such time on such later date not more than three business days after the foregoing date as the Representatives shall designate, which date and time may be postponed by agreement between the Representatives and the Company or as provided in Section 13 hereof (such date and time of delivery and payment for the Securities being herein called the “Closing Date”). Delivery of the Initial Underwritten Securities and the Option Underwritten Securities (if the option provided for in Section 3(a)(ii) hereof shall have been exercised on or before the third Business Day preceding the Closing Date), as well as any Common Shares issued and sold by the Company on the Closing Date. Delivery of the Initial Underwritten Securities and the Option Underwritten Securities, as well as any Common Shares issued and sold by the Company pursuant to Section 13 hereof in lieu of such Underwritten Securities or Option Underwritten Securities, shall be made through the facilities of the Depository Trust Company unless the Representatives shall otherwise instruct.
If the option provided for in Section 3(a)(ii) hereof is exercised after the third Business Day immediately preceding the Closing Date, delivery of the Option Underwritten Securities shall be made to the Underwriters on the date specified by the Representatives (which shall be within three Business Days after exercise of said option) for the respective accounts of the several Underwriters. Payment for any Option Underwritten Securities shall be made by the Underwriters to each Forward Seller (or, in the case of delivery of any Common Shares to be issued

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and sold by the Company pursuant to Section 13 hereof, to the Company) in Federal or other funds immediately available in New York City against delivery of such Option Underwritten Securities (or any Common Shares to be issued and sold by the Company pursuant to Section 13 hereof, as the case may be) for the respective accounts of the Underwriters on the Date of Delivery for the Option Underwritten Securities. If settlement for the Option Underwritten Securities (or any Common Shares to be issued and sold by the Company pursuant to Section 13 hereof) occurs after the Closing Date, the Company will deliver to the Representatives, the Forward Sellers and the Forward Counterparties on each Date of Delivery for the Option Underwritten Securities, and the obligation of the Underwriters to purchase the Option Underwritten Securities (or any Common Shares to be issued and sold by the Company pursuant to Section 13 hereof) shall be conditioned upon receipt of, supplemental opinions, certificates and letters confirming as of such date the opinions, certificates and letters delivered on the Closing Date pursuant to Section 7 hereof.
(5)    Offering by Underwriters. It is understood that the several Underwriters propose to offer the Securities for sale to the public as set forth in the Final Prospectus.
(6)    Agreements. The Company agrees with the Forward Sellers, the Forward Counterparties and the Underwriters that:
(a)Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives and the Forward Sellers with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives and the Forward Sellers (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and, if such amendment or new registration statement is not an automatic shelf registration statement, using its best efforts to have such amendment or new registration statement declared effective

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as soon as practicable. The Company shall have paid the required Commission filing fees relating to the Securities within the time period required by Rule 456(b)(1)(i) of the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(b)If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, the Company will (i) notify promptly the Representatives and the Forward Sellers so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(c)If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with the use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives and the Forward Sellers of any such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 6, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement (if such amendment or new registration statement is not an automatic shelf registration statement) declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.
(d)As soon as practicable, the Company will make generally available to its security holders and to the Representatives and the Forward Sellers an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(e)The Company will furnish to the Representatives, the Forward Sellers, counsel for the Underwriters and counsel for the Forward Sellers without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many

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copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives or the Forward Sellers may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(f)The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(g)The Company agrees that, unless it has or shall have obtained the prior written consent of the Representatives and the Forward Sellers, and each Underwriter, severally and not jointly, agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, the Representatives and the Forward Sellers it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto and any electronic road show. Any such free writing prospectus consented to by the Representatives, the Forward Sellers or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(h)The Company will not, without the prior written consent of Citigroup, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any other Common Shares or any securities convertible into, or exercisable, or exchangeable for, Common Shares; or publicly announce an intention to effect any such transaction, until the Business Day set forth on Schedule I hereto; provided, however, that the Company may: (i) issue and sell Common Shares pursuant to any employee equity based plan, share ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time; (ii) issue Common Shares issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time; and (iii) issue equity securities in connection with acquisition transactions, including the acquisition of real

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property or interests therein, including mortgage or leasehold interests or in conjunction with any joint venture transaction to which the Company is or becomes a party. Notwithstanding the foregoing, if (x) during the last 17 days of the restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs, or (y) prior to the expiration of the restricted period, the Company announces that it will release earnings results during the 16‑day period beginning on the last day of the restricted period, the restrictions imposed in this clause shall continue to apply until the expiration of the 18‑day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, except that such extension will not apply if, within three Business Days prior to the 15th calendar day before the last day of the restricted period, the Company delivers a certificate, signed by the Chief Financial Officer or Chief Executive Officer of the Company, certifying on behalf of the Company that the Common Shares are “actively traded securities” (as defined in Regulation M). The Company will provide the Representatives and any co‑managers and each individual subject to the restricted period pursuant to the lockup letters described in Section 7(j) with prior notice of any such announcement that gives rise to an extension of the restricted period.
(i)The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j)The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the New York Stock Exchange, Inc. (the “NYSE”) and the Nasdaq Global Market; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) any filings required to be made with FINRA (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (ix) the fees and expenses of the Company's accountants and the fees and expenses of counsel (including

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local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k)The Company will use its reasonable best efforts to meet the requirements to qualify, for the taxable year ending December 31, 2013 and for each of its succeeding taxable years for so long as the Board of Directors of the Company deems it in the best interests of the Company's shareholders to remain so qualified, for taxation as a REIT under the Code.
7.Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities (or any Common Shares to be issued and sold by the Company pursuant to Section 13 hereof in lieu thereof) and the Option Underwritten Securities (or any Common Shares to be issued and sold by the Company pursuant to Section 13 hereof in lieu thereof), as the case may be, and the obligations of the Forward Sellers to deliver and sell the Initial Underwritten Securities and the Option Underwritten Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any Date of Delivery pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a)    The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b)    The Company shall have requested and caused Baker & Hostetler LLP, counsel for the Company, to have furnished to the Representatives and the Forward Sellers their opinion, dated the Closing Date and addressed to the Representatives, the Forward Sellers and the Forward Counterparties, to the effect that:
(i)The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Ohio.
(ii)The Company has all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Disclosure Package and the Final Prospectus and to enter into and perform its obligations under this Agreement and the Forward Agreements.
(iii)The Company is duly qualified to transact business and is in good standing in each jurisdiction in which it owns real property except where the failure to qualify and be in good standing would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise.

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(iv)If the Company has one or more significant subsidiaries, as defined in Rule 405 of the Act (each, a “Significant Subsidiary”), each Significant Subsidiary has been duly incorporated or formed and is validly existing as a corporation, partnership, limited liability company or real estate investment trust in good standing or in full force and effect, as the case may be, under the laws of the jurisdiction of its incorporation or formation, has corporate, partnership, limited liability company or real estate investment trust power and authority to own, lease and operate its properties and to conduct its business, and is duly qualified as a foreign corporation, partnership, limited liability company or real estate investment trust to transact business and is in good standing or full force and effect, as the case may be, in each jurisdiction in which it owns real property, except where the failure to so qualify or be in good standing or full force and effect would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise.
(v)The number of issued and outstanding capital shares of the Company is as set forth in the Disclosure Package and the Final Prospectus under “Capitalization,” and the outstanding capital shares of the Company have been duly authorized, validly issued, and are fully paid and non-assessable. The capital shares of the Company conform to the description thereof contained in the Disclosure Package and the Final Prospectus. All of the issued and outstanding capital stock of the Company's Significant Subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable and, to the best of such counsel's knowledge, except as disclosed in the Disclosure Package and the Final Prospectus, are owned by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for such security interests, mortgages, pledges, liens, encumbrances, claims or equities that would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise.
(vi)This Agreement has been duly authorized, executed and delivered by the Company.
(vii)Each of the Forward Agreements has been authorized by all necessary corporate action of, and executed and delivered by, the Company and constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally or by equitable principles relating to enforceability; and the Forward Agreements conform in all material respects to the descriptions thereof in the Registration Statement, the Disclosure Package and the Final Prospectus.
(viii)The Common Shares, if any, to be purchased by the Forward Counterparties pursuant to the Forward Agreements from the Company (whether upon Physical Settlement, Net Share Settlement and/or Private Placement Settlement thereof (each as defined in the Forward Agreements)) have been duly and validly authorized by all necessary corporate action and such Common Shares have been

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duly authorized for issuance and sale pursuant to this Agreement and the Forward Agreements. Such Common Shares, when issued and delivered pursuant to this Agreement and the Forward Agreements against payment of the consideration therefor specified herein and therein, will be validly issued, fully paid and non-assessable.
(ix)The issuance of the Common Shares, if any, to be purchased by the Forward Counterparties pursuant to the Forward Agreements from the Company will not be subject to any preemptive or other similar rights of any shareholder of the Company arising by operation of law or under the charter or by-laws of the Company or, to the best of their knowledge, otherwise; and, except as set forth in the Disclosure Package and the Final Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, capital shares of or ownership interests in the Company are outstanding.
(x)The Securities conform in all material respects to the statements relating thereto contained in the Disclosure Package and the Final Prospectus; and the certificates for the Securities are in valid and sufficient form.
(xi)The Registration Statement is effective under the Act and, to the best of their knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act or proceedings therefor initiated or threatened by the Commission. Any required filing of the Base Prospectus, any Preliminary Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b).
(xii)The Registration Statement and the Final Prospectus (other than the documents incorporated by reference therein and the financial statements, related notes and schedules and other financial and statistical data included or incorporated by reference in the Registration Statement or the Final Prospectus or omitted therefrom, as to which no opinion need be rendered) as of their respective effective or issue dates, complied as to form in all material respects with the requirements for registration statements on Form S-3 under the Act and the rules thereunder.
(xiii)Each document filed pursuant to the Exchange Act (other than the financial statements, related schedules and other financial and statistical data included or incorporated by reference therein, as to which no opinion need be rendered) and incorporated or deemed to be incorporated by reference in the Disclosure Package and the Final Prospectus complied when so filed as to form in all material respects with the Exchange Act and the rules thereunder.
(xiv)No facts have come to such counsel's attention that have caused such counsel to believe that (i) the Registration Statement or any amendment thereto, as of each Effective Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Disclosure Package and the price to the public, the

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number of Securities to be included on the cover page of the Final Prospectus, when taken together as a whole, at the time of the first contract of sale of Securities within the meaning of Rule 430B(f)(1) under the Act, included an untrue statement of a material fact or omitted 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; or (iii) the Final Prospectus, or any amendment or supplement thereto, as of its date or on the Closing Date, included or includes an untrue statement of a material fact or omitted or omits 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 (in each case, other than the financial statements, related notes and schedules and other financial and statistical data included or incorporated by reference therein or omitted therefrom, as to which such counsel need express no statement). With respect to statements contained in the Disclosure Package, any statement contained in any of the constituent documents shall be deemed to be modified or superseded to the extent that any information contained in subsequent constituent documents modifies or replaces such statement.
(xv)To the best of their knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Final Prospectus, other than those disclosed therein, and, to the best of their knowledge, all pending legal or governmental proceedings to which the Company or its Significant Subsidiaries is a party or of which any of the property of the Company or its subsidiaries is the subject that are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material to the business of the Company and its subsidiaries considered as one enterprise.
(xvi)To the best of their knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto, and the descriptions thereof or references thereto are correct in all material respects.
(xvii)No authorization, approval or consent of any court or governmental authority or agency is required that has not been obtained in connection with the consummation by the Company of the transactions contemplated by this Agreement and the Forward Agreements, except such as may be required under the Act, the Exchange Act, and state securities laws or blue sky laws or real estate syndication laws; and to the best of their knowledge, the execution and delivery of this Agreement and the Forward Agreements and the consummation of the transactions contemplated herein and therein and compliance by the Company with its obligations hereunder and thereunder will not (A) constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Significant Subsidiary pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument that is filed or incorporated by reference as an exhibit to the Registration Statement to which the Company or any Significant Subsidiary is a party or by which they are bound or to

23



which any of the property or assets of the Company or any Significant Subsidiary is subject, except (i) where such breach, default, creation or imposition would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise and (ii) that we express no opinion with respect to compliance with financial covenants or tests, or (B) result in a violation of the provisions of any administrative or court order or decree to which the Company or any of its subsidiaries is subject and which is known to such counsel, the charter or by-laws or other organizational document of the Company or any Significant Subsidiary or any applicable law or administrative regulation.
(xviii)Neither the Company nor any Significant Subsidiary is, or will be immediately after the consummation of the transactions contemplated by this Agreement and the Forward Agreements, required to be registered under the Investment Company Act.
(xix)The information in the Disclosure Package and the Final Prospectus under the captions “Description of Common Shares,” “Certain Anti-Takeover Provisions” and “Material Federal Income Tax Considerations,” to the extent that it constitutes matters of law or legal conclusions, has been reviewed by them and is correct in all material respects.
(xx)The Company has qualified as a REIT for each of its taxable years ended December 31, 1993 through 2012 and the Company is organized in conformity with the requirements for qualification as a REIT, and the Company's current and proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code for its taxable year ending 2013 and for future taxable years.
(xxi)No holders of securities of the Company have rights to the registration of such securities under the Registration Statement.
(c)    The Representatives and the Forward Sellers shall have received from Sidley Austin LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, the Forward Sellers and the Forward Counterparties, with respect to the sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives and the Forward Sellers may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
In giving their opinions, Sidley Austin LLP may rely as to matters involving the laws of the State of Ohio upon the opinion of Baker & Hostetler LLP, and Baker & Hostetler LLP may rely as to matters involving the laws of the State of New York upon the opinion of Sidley Austin LLP. Baker & Hostetler LLP and Sidley Austin LLP may rely (i) as to the qualification of the Company or its subsidiaries to do business in any state or jurisdiction, upon certificates of appropriate government officials, telephonic confirmation by representatives of such states or confirmation from information contained on the websites of such states and (ii) as to matters of fact, upon

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certificates and written statements of officers and employees of and accountants for the Company or its subsidiaries.
(d)    The Company shall have furnished to the Representatives, the Forward Sellers and the Forward Counterparties a certificate of the Company, signed by the Chairman of the Board, President and Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i)the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii)no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company's knowledge, threatened; and
(iii)since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), earnings, prospects, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e)    The Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Representatives and the Forward Sellers, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date and addressed to the Representatives, the Forward Sellers and the Forward Counterparties, in form and substance satisfactory to the Representatives and the Forward Sellers, containing statements and information of the type ordinarily included in accountants' “comfort letters” to underwriters with respect to the Company's financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus.
(f)    At the Execution Time, the Company shall have furnished to the Representatives, the Forward Sellers and the Forward Counterparties a certificate of the Chief Financial Officer of the Company, dated as of the Execution Time, in form and substance reasonably satisfactory to the Representatives and the Forward Sellers.
(g)    Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 7

25



or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h)    Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company's debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i)    The Common Shares reserved for listing upon issuance following Physical Settlement or Net Share Settlement (as each such term is defined in the Forward Agreements) of each Forward Agreement and the Common Shares (if any) to be sold by the Company pursuant to Section 13 hereof shall have been approved for listing on the NYSE and the Nasdaq Global Market, subject only to official notice of issuance, and satisfactory evidence of such actions shall have been provided to the Representatives and the Forward Sellers.
(j)    At the Execution Time, the Company shall have furnished to the Representatives a letter substantially in the form of Exhibit A hereto from each officer and director of the Company listed on Schedule IV hereto addressed to the Representatives.
(k)    Prior to the Closing Date, the Company shall have furnished to the Representatives and the Forward Sellers such further information, certificates and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and the Forward Sellers and counsel for the Underwriters and counsel for the Forward Sellers and the Forward Counterparties, this Agreement and all obligations of the Underwriters and the Forward Sellers hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 7 shall be delivered at the office of Sidley Austin LLP, counsel for the Underwriters, at 787 Seventh Avenue, New York, New York 10019, on the Closing Date.
8.Reimbursement of Expenses. If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 7 hereof is not satisfied, because of any termination pursuant to Section 11 hereof or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriters, the

26



Company will reimburse the Underwriters, the Forward Sellers and the Forward Counterparties severally through the Representatives on demand for all expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the Securities.
9.Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless each Underwriter, its affiliates and their directors, officers, employees and agents of each Underwriter and each person who controls any Underwriter within the meaning of either the Act or the Exchange Act and each Forward Seller and Forward Counterparty and each person, if any, who controls any Forward Seller or Forward Counterparty within the meaning of either the 1933 Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in (A) the registration statement for the registration of the Securities as originally filed or in any amendment thereof, or in the Base Prospectus, any Preliminary Prospectus or any other preliminary prospectus supplement relating to the Securities, the Final Prospectus or any Issuer Free Writing Prospectus, or in any amendment thereof or supplement thereto, or (B) in any materials or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Securities, including any roadshow or investor presentations made to investors by the Company (whether in person or electronically), or, in each case, arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter any Forward Seller or any Forward Counterparty specifically for inclusion therein. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b)    Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signed the Registration Statement, and each person who controls the Company within the meaning of either the Act or the Exchange Act, and each Forward Seller and Forward Counterparty and each person, if any, who controls any Forward Seller or Forward Counterparty within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, to the same extent as the foregoing indemnity from the Company to each Underwriter, Forward Seller and Forward Counterparty but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that the statements set forth (i) in the last paragraph of the cover page regarding delivery of the Securities and, under the heading “Underwriting”, (ii) the list of Underwriters

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and their respective participation in the sale of the Securities, (iii) the sentences related to concessions and (iv) the paragraphs related to stabilization and syndicate covering transactions in any Preliminary Prospectus and the Final Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in any Preliminary Prospectus, the Final Prospectus or any Issuer Free Writing Prospectus.
(c)    Promptly after receipt by an indemnified party under this Section 9 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 9, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party's choice at the indemnifying party's expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying party's election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding.
(d)    In the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 9 is unavailable to or insufficient to hold harmless an indemnified party for any reason, indemnifying parties severally agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending the same) (collectively “Losses”) to which an indemnified

28



party may be subject in such proportion as is appropriate to reflect the relative benefits received by the indemnifying parties on the one hand and by the indemnified parties on the other from the offering of the Securities; provided, however, that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the indemnifying parties and the indemnified parties severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the indemnifying parties on the one hand and of the indemnified parties on the other in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. The relative benefits received by the Company, the Underwriters and the Forward Sellers in connection with the offering of the Securities shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Securities (before deducting expenses) received by the Company (which benefits shall be deemed equal to the proceeds that would be received by the Company upon Physical Settlement of the Forward Agreements assuming a Forward Price (as such term is defined in the Forward Agreements) equal to the Purchase Price of all of the Securities), the total underwriting discounts and commissions received by the Underwriters as set forth in the table on the cover page of the Final Prospectus and, in the case of the Forward Sellers, the Fixed Charge deducted from the Forward Price (as each such term is defined in the Forward Agreements), net of any costs associated therewith, respectively, bear to the aggregate public offering price of the Securities. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company, the Underwriters or the Forward Sellers, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company, the Underwriters and the Forward Sellers agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 9, each person who controls an Underwriter within the meaning of either the Act or the Exchange Act and each person, if any, who controls any Forward Seller or Forward Counterparty within the meaning of either the 1933 Act or the Exchange Act and each director, officer, employee and agent of an Underwriter, Forward Seller or Counterparty shall have the same rights to contribution as such Underwriter Forward Seller or Forward Counterparty, and each person who controls the Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this paragraph (d).

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10.Default by an Underwriter. If any one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the amount of Securities set forth opposite their names in Schedule II-A hereto bears to the aggregate amount of Securities set forth opposite the names of all the remaining Underwriters) the Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event that the aggregate amount of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate amount of Securities set forth in Schedule II-A hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting Underwriter, the Forward Sellers, the Forward Counterparties or the Company. In the event of a default by any Underwriter as set forth in this Section 10, the Closing Date shall be postponed for such period, not exceeding five Business Days, as the Representatives shall determine in order that the required changes in the Registration Statement and the Final Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and any nondefaulting Underwriter, any Forward Seller or any Forward Counterparty for damages occasioned by its default hereunder.
11.Termination. This Agreement shall be subject to termination in the absolute discretion of the Representatives, by notice given to the Company and such Forward Seller prior to delivery of and payment for the Securities, if at any time prior to such delivery and payment (i) trading in the Company's Common Shares shall have been suspended by the Commission, the NYSE or the Nasdaq Global Market or trading in securities generally on the NYSE or the Nasdaq Global Market shall have been suspended or limited or minimum prices shall have been established on such exchange or the Nasdaq Global Market, (ii) a banking moratorium shall have been declared either by Federal or New York State authorities or (iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis the effect of which on financial markets is such as to make it, in the sole judgment of the Representatives, impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by any Preliminary Prospectus or the Final Prospectus (exclusive of any amendment or supplement thereto).
12.Representations and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements of the Company or its officers and of the Underwriters and Forward Sellers set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter, any Forward Seller, any Forward Counterparty or the Company or any of the officers, directors, employees, agents or controlling persons referred to in Section 9 hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 8 and 9 hereof shall survive the termination or cancellation of this Agreement.
13.Additional Issuance and Sale by the Company. In the event that a Forward Seller does not to deliver for sale the number of Common Shares set forth in Schedule II-B opposite the name of such Forward Seller (i) under the column captioned “Number of Initial Underwritten

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Securities To Be Sold” on the Closing Date or (ii) if applicable, under the column captioned “Number of Option Underwritten Securities To Be Sold” (or such proportionately reduced number of Option Underwritten Securities to be borrowed and delivered for sale by such Forward Seller based upon the number of Option Underwritten Securities as to which the option described in Section 3(a)(ii) hereof is being exercised on such Date of Delivery) under the column captioned “Number of Option Underwritten Securities to be Sold,” as the case may be, the Company shall issue and sell in whole but not in part a number of Common Shares equal to the number of Shares that such Forward Seller does not deliver. The Representatives shall have the right to postpone the Closing Date or the relevant Date of Delivery for a period not exceeding one (1) Business Day in order to effect any required changes in any documents or arrangements. A Forward Seller shall have no liability whatsoever for any Securities it does not deliver to the Underwriters or any other party if the applicable Forward Agreement does not become effective because all of the conditions to effectiveness set forth in Section 10(a) of the applicable Forward Agreement have not been satisfied or if the applicable Forward Agreement becomes effective but, pursuant to Section 10(a) thereof, relates to a Number of Shares (as defined therein) as of such Closing Date or an increase in the Number of Shares (as defined therein) in respect of such Date of Delivery, as the case may be, that is less than the number of Common Shares set forth in Schedule II-B opposite the name of such Forward Seller (i) under the column captioned “Number of Initial Underwritten Securities To Be Sold” on the Closing Date or (ii) if applicable, under the column captioned “Number of Option Underwritten Securities To Be Sold” (or such proportionately reduced number of Option Underwritten Securities to be borrowed and delivered for sale by such Forward Seller based upon the number of Option Underwritten Securities as to which the option described in Section 3(a)(ii) hereof is being exercised with respect to such Date of Delivery) under the column captioned “Number of Option Underwritten Securities to be Sold,” as the case may be.
14.Notices. All communications hereunder will be in writing and effective only on receipt, and, if sent to the Representatives and/or the Forward Sellers to: Citigroup Global Markets, Inc., General Counsel, Facsimile: (212) 816-7912 and confirmed to the General Counsel, Citigroup Global Markets Inc., at 388 Greenwich Street, New York, New York, 10013, Attention: General Counsel; Merrill Lynch Pierce, Fenner & Smith Incorporated at One Bryant Park, New York, New York 10036, Attention of Syndicate Department (Facsimile: (646) 855-3073), with a copy to ECM Legal (facsimile: (212) 230-8730); or Wells Fargo Securities, LLC, 375 Park Avenue, New York, New York 10152, Attention of Equity Syndicate, Facsimile: 212-214-5918, and confirmed by telephone to 212-214-6144; or, if sent to the Company, will be mailed, delivered or telefaxed to (216) 289‑6400 and confirmed to it at Associated Estates Realty Corporation, 1 AEC Parkway, Richmond Heights, Ohio 44143, attention of the Legal Department.
15.Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers, directors, employees, agents and controlling persons referred to in Section 9 hereof, and no other person will have any right or obligation hereunder.
16.No Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale of the Securities pursuant to this Agreement is an arm's‑length commercial transaction among the Company, the Underwriters and the Forward Sellers and any affiliate through which it may be acting, on the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of the Company and (c) the Company's engagement of the Underwriters in connection

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with the offering and the process leading up to the offering is as independent contractors and not in any other capacity. Furthermore, the Company agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective of whether any of the Underwriters has advised or is currently advising the Company on related or other matters). The Company agrees that it will not claim that the Underwriters have rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto.
17.Integration. This Agreement supersedes all prior agreements and understandings (whether written or oral) among the Company, the Underwriters and the Forward Sellers, or any of them, with respect to the subject matter hereof.
18.Applicable Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York.
19.Waiver of Jury Trial. The Company 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.
20.Counterparts. This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement.
21.Headings. The section headings used herein are for convenience only and shall not affect the construction hereof.
22.Definitions. The terms that follow, when used in this Agreement, shall have the meanings indicated.
“Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Base Prospectus” shall mean the base prospectus referred to in paragraph 1(a) above contained in the Registration Statement at the Execution Time.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City.
“Commission” shall mean the Securities and Exchange Commission.
“Disclosure Package” shall mean (i) the Base Prospectus, (ii) the Preliminary Prospectus used most recently prior to the Execution Time, (iii) the Issuer Free Writing Prospectuses, if any, identified in Schedule III hereto and (iv) any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package.
“Effective Date” shall mean each date and time that the Registration Statement, any post‑effective amendment or amendments thereto became or becomes effective, including,

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without limitation, each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) under the Act.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Execution Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto.
“Final Prospectus” shall mean the prospectus supplement relating to the Securities that was first filed pursuant to Rule 424(b) after the Execution Time, together with the Base Prospectus.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.
“Preliminary Prospectus” shall mean any preliminary prospectus supplement to the Base Prospectus referred to in paragraph 1(a) above which is used prior to the filing of the Final Prospectus, together with the Base Prospectus.
“Registration Statement” shall mean the registration statement referred to in paragraph 1(a) above, including exhibits and financial statements and any prospectus supplement relating to the Securities that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the event any post‑effective amendment thereto becomes effective prior to the Closing Date, shall also mean such registration statement as so amended, as the case may be.
“Rule 158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”, “Rule 424”, “Rule 430B” and “Rule 433” refer to such rules under the Act.
If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company, the Forward Sellers and the several Underwriters.
Very truly yours,


Associated Estates Realty Corporation

By:/s/ Lou Fatica                
Name: Lou Fatica
Title:Vice President, Treasurer & CFO

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Citigroup Global Markets, Inc.
Acting in its capacity as Forward Seller and as agent for Citibank, N. A.
By: /s/ Matthew J. Greenberger        
Name: Matthew J. Greenberger
Title: Managing Director


Citibank, N.A.
Acting in its capacity as Forward Counterparty, solely as the recipient and/or beneficiary of certain representations, warranties, covenants and indemnities set forth in this Agreement

By: /s/ Matthew J. Greenberger        
Name: Matthew J. Greenberger
Title: Managing Director

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Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Acting in its capacity as Forward Seller and as agent for Bank of America, N.A.
By: /s/Jake Mendelsohn            
Name: Jake Mendelsohn
Title: Managing Director



Bank of America, N.A.
Acting in its capacity as Forward Counterparty, solely as the recipient and/or beneficiary of certain representations, warranties, covenants and indemnities set forth in this Agreement

By: /s/ Jake Mendelsohn            
Name: Jake Mendelsohn
Title: Managing Director

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Wells Fargo Securities, LLC
Acting in its capacity as Forward Seller and as agent for Wells Fargo Bank, National Association
By: /s/ Michael D. Collins        
Name: Michael D. Collins
Title: Managing Director


Wells Fargo Bank, National Association
Acting in its capacity as Forward Counterparty, solely as the recipient and/or beneficiary of certain representations, warranties, covenants and indemnities set forth in this Agreement

By: /s/ Michael D. Collins        
Name: Michael D. Collins
Title: Managing Director



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The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.

MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
WELLS FARGO SECURITIES, LLC



By:/s/ Matthew J. Greenberger    
Name: Matthew J. Greenberger
Title: Managing Director

By: Merrill Lynch, Pierce, Fenner & Smith
Incorporated


By:/s/ Greg Wright            
Name: Greg Wright
Title: Managing Director, Co-Head of Americas Real Estate Investment Banking

By: Wells Fargo Securities, LLC


By:/s/ David Herman            
Name: David Herman
Title: Director

For themselves and the other
several Underwriters, if any,
named in Schedule II-A to the
foregoing Agreement.







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SCHEDULE I


Underwriting Agreement dated May 29, 2013
Registration Statement No. 333‑187885
Representatives: Citigroup Global Markets Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Wells Fargo Securities, LLC

Title, Purchase Price and Description of Securities:
Title: Common Shares, without par value
Number of Initial Underwritten Securities to be sold: 6,500,000
Number of Option Underwritten Securities to be sold: 975,000
Price per Share to Public (include accrued dividends, if any): $17.25
Price per Share to the Underwriters - total: $16.56
Other provisions: N/A
Closing Date, Time and Location: June 3, 2013 at 10:00 a.m. at the office of Sidley Austin LLP, 787 Seventh Avenue, New York, New York 10019.
Type of Offering: Non‑Delayed
Date referred to in Section 6(h) after which the Company may offer or sell securities issued by the Company without the consent of the Representative(s): July 28, 2013

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SCHEDULE II-A


Underwriters
Number of Initial Underwritten
Securities to be Purchased
1,950,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
1,300,000
Wells Fargo Securities, LLC
975,000
Jefferies LLC
715,000
Raymond James & Associates, Inc.
715,000
Barclays Capital Inc.
325,000
Cantor Fitzgerald & Co.
195,000
Sandler O'Neill & Partners, L.P
195,000
Compass Point Research & Trading, LLC
65,000
RBS Securities Inc.
65,000
       Total
6,500,000
 
 


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SCHEDULE II-B


Forward Seller
Number of Initial Underwritten Securities to be Sold
Number of Option Underwritten
Securities To Be Sold
 
 
 
2,990,000
448,500
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
2,015,000
302,250
Wells Fargo Securities, LLC
1,495,000
224,250
       Total
6,500,000
975,000

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SCHEDULE III


Schedule of Free Writing Prospectuses included in the Disclosure Package
None

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SCHEDULE IV
List of Persons to Sign Lock‑Up Agreements

Jeffrey I. Friedman
Lou Fatica
Albert T. Adams
Michael E. Gibbons
Mark L. Milstein
James J. Sanfilippo
James A. Schoff
Richard T. Schwarz
John T. Shannon
Jason A. Friedman
Scott D. Irwin

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EXHIBIT A

Form of Lock‑Up Agreement

Associated Estates Realty Corporation
Public Offering of Common Shares

May 29, 2013

Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Wells Fargo Securities, LLC
As Representatives of the several Underwriters
388 Greenwich Street
New York, New York 10013

Ladies and Gentlemen:

This letter is being delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”), among Associated Estates Realty Corporation, an Ohio corporation (the “Company”), the Forward Sellers (as defined therein), the Forward Counterparties (as defined therein) and each of you as representatives of a group of Underwriters named therein (the “Underwriters”), relating to an underwritten public offering of Common Shares, without par value (the “Common Shares”), of the Company. Capitalized terms used herein and not otherwise defined herein shall have the respective meanings ascribed to them in the Underwriting Agreement.
In order to induce you and the other Underwriters to enter into the Underwriting Agreement, the undersigned will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned or any person in privity with the undersigned or any affiliate of the undersigned), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Securities and Exchange Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder with respect to, any capital shares of the Company or any securities convertible into or exercisable or exchangeable for such capital shares, or publicly announce an intention to effect any such transaction, for a period

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of 60 days after the date of the Underwriting Agreement, other than Common Shares disposed of as bona fide gifts approved by Citigroup Global Markets Inc.
If (i) the Company issues an earnings release or material news, or a material event relating to the Company occurs, during the last 17 days of the lock‑up period, or (ii) prior to the expiration of the lock‑up period, the Company announces that it will release earnings results during the 16‑day period beginning on the last day of the lock‑up period, the restrictions imposed by this agreement shall continue to apply until the expiration of the 18‑day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless Citigroup Global Markets Inc. waives, in writing, such extension; provided, that such extension will not apply if, within three business days prior to the 15th calendar day before the last day of the lock-up period, the Company delivers a certificate, signed by the Chief Financial Officer or Chief Executive Officer of the Company, certifying on behalf of the Company that the Common Shares are “actively traded securities” (as defined in Regulation M). The undersigned hereby acknowledges that the Company has agreed in the Underwriting Agreement to provide written notice of any event that would result in an extension of the lock‑up period and agrees that any such notice properly delivered will be deemed to have been given to, and received by, the undersigned.
If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date, the agreement set forth above shall likewise be terminated.
Yours very truly,


Signature:________________________________
Name:___________________________________
Title:____________________________________








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