Common use of Sale of Placement Shares Clause in Contracts

Sale of Placement Shares. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, upon the Agent’s acceptance of the terms of a Placement Notice, and unless the sale of the Placement Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement, the Agent, for the period specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Placement Shares up to the amount specified in, and otherwise in accordance with the terms of, such Placement Notice. The Company acknowledges and agrees that (i) there can be no assurance that the Agent will be successful in selling Placement Shares, (ii) the Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Placement Shares for any reason other than a failure by the Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Placement Shares as required under this Agreement, (iii) the Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by the Agent and the Company and (iv) Placement Shares purchased from the Company by the Agent, individually or in a syndicate, as principal shall be made in accordance with the terms agreed upon between the Agent and the Company as evidenced by a Terms Agreement; the Agent’s commitment to purchase Placement Shares from the Company as principal shall be deemed to be made on the basis of the accuracy of the representation and warranties of the Company, the Operating Partnership and the Manager, and performance by the Company, the Operating Partnership and the Manager of their covenants and other obligations, herein contained and shall be subject to the terms and conditions herein set forth; at the time of each Terms Agreement, the Agent shall specify the requirements, if any, for the officer’s certificate, opinions and letters of accountants and counsel pursuant to Section 8(l), (m) and (n) and Section 11(g) hereof. In the event of a conflict between the terms of this Agreement and a Terms Agreement, the terms of such Terms Agreement shall control.

Sale of Placement Shares. (i) On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, upon the Agent’s acceptance of the terms of a Placement Notice, and unless the sale of the Placement Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement, the Agent, for the period specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Placement Shares up to the amount specified in, and otherwise in accordance with the terms of, such Placement Notice. The Company acknowledges and agrees that (iA) there can be no assurance that the Agent will be successful in selling Placement Shares, (iiB) the Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Placement Shares for any reason other than a failure by the Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Placement Shares as required under this Agreement, Agreement and (iiiC) the Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by the Agent and the Company. (ii) Notwithstanding any other provision of this Agreement, the Company and (iv) shall not offer or sell, or instruct the Agent to offer or sell, any Placement Shares purchased from through the Agent as sales agent (and, by notice to the Agent given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for any such offer or sale of any Placement Shares prior to the commencement of the periods referenced below), and the Agent shall not be obligated to make any such offer or sale of Placement Shares, (A) during any period in which the Company is, or could be deemed to be, in possession of material non-public information or (B) except as provided in Section 5(a)(ii) hereof, at any time during the period commencing on the 10th business day prior to the time the Company issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the time that is 24 hours after the time that the Company files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement. (iii) Notwithstanding clause (B) of Section 5(a)(ii) hereof, if the Company wishes to offer or sell Shares to the Agent as sales agent at any time during the period from and including an Earnings Announcement through and including the corresponding Filing Time, the Company shall first (A) prepare and deliver to the Agent (with a copy to counsel for the Agents) a Current Report on Form 8-K that includes substantially the same financial and related information (together with management’s discussion and analysis thereof) that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Agent, individually or in a syndicateand, as principal prior to its filing, obtain the written consent of the Agent to such filing (which consent shall not be made in accordance unreasonably withheld), (B) provide the Agent with the terms agreed upon between the Agent and the Company as evidenced by a Terms Agreement; the Agent’s commitment to purchase Placement Shares from the Company as principal shall be deemed to be made on the basis of the accuracy of the representation and warranties of the Company, the Operating Partnership and the Manager, and performance by the Company, the Operating Partnership and the Manager of their covenants and other obligations, herein contained and shall be subject to the terms and conditions herein set forth; at the time of each Terms Agreement, the Agent shall specify the requirements, if any, for the officer’s officers’ certificate, opinions and letters of accountants counsel and counsel pursuant to accountants’ letter specified in Section 8(l7(l), (m) and (n), respectively, hereof, (C) afford the Agent the opportunity to conduct a due diligence review in accordance with Section 7(j) hereof prior to filing such Earnings 8-K and (D) file such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (1) the delivery of any officers’ certificate, opinion or letter of counsel or accountants’ letter pursuant to this Section 5(a) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Section 7(l), (m) and (n), respectively, hereof, and (2) this Section 11(g5(a) shall in no way affect or limit the operation of clause (A) of Section 5(a)(i) hereof, which shall have independent application. In the event of a conflict between the terms of this Agreement and a Terms Agreement, the terms of such Terms Agreement shall control.b.

Sale of Placement Shares. (i) On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, upon the Agent’s acceptance of the terms of a Placement Notice, and unless the sale of the Placement Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement, the Agent, for the period specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Placement Shares up to the amount specified in, and otherwise in accordance with the terms of, such Placement Notice. The Company acknowledges and agrees that (iA) there can be no assurance that the Agent will be successful in selling Placement Shares, (iiB) the Agent will not incur no any liability or obligation to the Company or any other person or entity if it does not sell Placement Shares for any reason other than a failure by the Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Placement Shares as required under this Agreement, (iiiC) other than to the extent set forth in the applicable Confirmation, the Forward Purchaser will not incur any liability or obligation to the Company or any other person or entity if it or its affiliate does not borrow Forward Hedge Shares for any reason other than a failure by the Forward Purchaser to use its commercially reasonable efforts to borrow or cause its affiliate to borrow such Forward Hedge Shares, and (D) the Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by the Agent and the Company. (ii) Notwithstanding any other provision of this Agreement, the Company and (iv) shall not offer or sell, or instruct the Agent to offer or sell, any Placement Shares purchased from through the Agent as sales agent (and, by notice to the Agent given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for any such offer or sale of any Placement Shares prior to the commencement of the periods referenced below), and the Agent shall not be obligated to make any such offer or sale of Placement Shares, (A) during any period in which the Company by is, or could be deemed to be, in possession of material non-public information or (B) except as provided in Section 5(a)(iii) hereof, at any time during the Agentperiod commencing on the 10th business day prior to the time the Company issues a press release containing, individually or in shall otherwise publicly announce, its earnings, revenues or other operating results for a syndicatefiscal period or periods (each, an “Earnings Announcement”) through and including the time that is 24 hours after the time that the Company files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as principal the case may be, covered by such Earnings Announcement. (iii) Notwithstanding clause (B) of Section 5(a)(ii) hereof, if the Company wishes to offer or sell Placement Shares to or through the Agent at any time during the period from and including an Earnings Announcement through and including the corresponding Filing Time, the Company shall be made in accordance with the terms agreed upon between first (A) prepare and deliver to the Agent and the Company as evidenced by Forward Purchaser (with a Terms Agreement; copy to their counsel) a Current Report on Form 8-K that includes substantially the Agentsame financial and related information (together with management’s commitment discussion and analysis thereof) that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to purchase Placement Shares from the Company as principal shall be deemed to be made on the basis of the accuracy of the representation and warranties of the Company, the Operating Partnership Agent and the ManagerForward Purchaser, and performance by the Companyand, the Operating Partnership and the Manager of their covenants and other obligations, herein contained and shall be subject prior to the terms and conditions herein set forth; at the time of each Terms Agreement, the Agent shall specify the requirements, if any, for the officer’s certificate, opinions and letters of accountants and counsel pursuant to Section 8(l), (m) and (n) and Section 11(g) hereof. In the event of a conflict between the terms of this Agreement and a Terms Agreement, the terms of such Terms Agreement shall control.its 4

Sale of Placement Shares. On the basis of the representations and warranties herein contained and subject Subject to the terms and conditions herein set forth, upon the Agent’s acceptance of the terms of a Placement Notice, and unless the sale of the Placement Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement, the Agent, for the period specified in the a Placement Notice, the Agent will use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable state and federal laws, rules and regulations and the rules of the Nasdaq Stock Market (the “Exchange”), to sell such the Placement Shares up to the amount specified in, and otherwise in accordance with the terms of, such Placement Notice. The Agent will provide written confirmation to the Company no later than the opening of the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Placement Shares hereunder setting forth the number of Placement Shares sold on such day, the compensation payable by the Company to the Agent pursuant to Section 2 with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the Agent (as set forth in Section 5(a)) from the gross proceeds that it receives from such sales. Subject to the terms of a Placement Notice, the Agent may sell Placement Shares by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415 of the Securities Act. The Company acknowledges and agrees that (i) there can be no assurance that the Agent will be successful in selling Placement Shares, (ii) the Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Placement Shares for any reason other than a failure by the Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law state and federal laws, rules and regulations and the rules of the Exchange to sell such Placement Shares as required under this Agreement, Agreement and (iii) the Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by the Agent and the Company Company. “Trading Day” means any day on which shares of Common Stock are purchased and (iv) Placement Shares purchased from the Company by the Agent, individually or in a syndicate, as principal shall be made in accordance with the terms agreed upon between the Agent and the Company as evidenced by a Terms Agreement; the Agent’s commitment to purchase Placement Shares from the Company as principal shall be deemed to be made sold on the basis of the accuracy of the representation and warranties of the Company, the Operating Partnership and the Manager, and performance by the Company, the Operating Partnership and the Manager of their covenants and other obligations, herein contained and shall be subject to the terms and conditions herein set forth; at the time of each Terms Agreement, the Agent shall specify the requirements, if any, for the officer’s certificate, opinions and letters of accountants and counsel pursuant to Section 8(l), (m) and (n) and Section 11(g) hereof. In the event of a conflict between the terms of this Agreement and a Terms Agreement, the terms of such Terms Agreement shall controlExchange.

Sale of Placement Shares. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, upon the Agent’s acceptance of the terms of a Placement NoticeNotice pursuant to Section 2 hereof, and unless the sale of the Placement Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement, the Agent, for the period specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable state and federal laws, rules and regulations and the rules of the Exchange to sell such Placement Shares up to the amount specified in, and otherwise in accordance with the terms of, such Placement Notice. The Company acknowledges and agrees that (i) there can be no assurance that the Agent will be successful in selling Placement Shares, (ii) the Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Placement Shares for any reason other than a failure by the Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law state and federal laws, rules and regulations and the rules of the Exchange to sell such Placement Shares as required under this Agreement, Agreement and (iii) the Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by the Agent and the Company. Notwithstanding any other provision of this Agreement, during any period in which the Company is in possession of material non-public information, the Company and the Agent agree that (ivi) no sale of Placement Shares purchased from will take place, (ii) the Company by shall not request the Agent, individually or in a syndicate, as principal shall be made in accordance with the terms agreed upon between the Agent and the Company as evidenced by a Terms Agreement; the Agent’s commitment to purchase sale of any Placement Shares from the Company as principal shall be deemed to be made on the basis of the accuracy of the representation and warranties of the Company, the Operating Partnership and the ManagerShares, and performance by the Company, the Operating Partnership and the Manager of their covenants and other obligations, herein contained and shall be subject to the terms and conditions herein set forth; at the time of each Terms Agreement, (iii) the Agent shall specify the requirements, if any, for the officer’s certificate, opinions and letters of accountants and counsel pursuant not be obligated to Section 8(l), (m) and (n) and Section 11(g) hereof. In the event of a conflict between the terms of this Agreement and a Terms Agreement, the terms of such Terms Agreement shall controlsell or offer to sell any Placement Shares.

Sale of Placement Shares. (i) On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, upon the Agent’s acceptance of the terms of a Placement Notice, and unless the sale of the Placement Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement, the Agent, for the period specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Placement Shares up to the amount specified in, and otherwise in accordance with the terms of, such Placement Notice. The Company acknowledges and agrees that (iA) there can be no assurance that the Agent will be successful in selling Placement Shares, (iiB) the Agent will not incur no any liability or obligation to the Company or any other person or entity if it does not sell Placement Shares for any reason other than a failure by the Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Placement Shares as required under this Agreement, (iiiC) other than to the extent set forth in the applicable Confirmation, the Forward Purchaser will not incur any liability or obligation to the Company or any other person or entity if it or its affiliate does not borrow Forward Hedge Shares for any reason other than a failure by the Forward Purchaser to use its commercially reasonable efforts to borrow or cause its affiliate to borrow such Forward Hedge Shares, and (D) the Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by the Agent and the Company. (ii) Notwithstanding any other provision of this Agreement, the Company and (iv) shall not offer or sell, or instruct the Agent to offer or sell, any Placement Shares purchased from through the Agent as sales agent (and, by notice to the Agent given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for any such offer or sale of any Placement Shares prior to the commencement of the periods referenced below), and the Agent shall not be obligated to make any such offer or sale of Placement Shares, (A) during any period in which the Company by is, or could be deemed to be, in possession of material non-public information or (B) except as provided in Section 5(a)(iii) hereof, at any time during the Agentperiod commencing on the 10th business day prior to the time the Company issues a press release containing, individually or in shall otherwise publicly announce, its earnings, revenues or other operating results for a syndicatefiscal period or periods (each, an “Earnings Announcement”) through and including the time that is 24 hours after the time that the Company files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as principal the case may be, covered by such Earnings Announcement. (iii) Notwithstanding clause (B) of Section 5(a)(ii) hereof, if the Company wishes to offer or sell Placement Shares to or through the Agent at any time during the period from and including an Earnings Announcement through and including the corresponding Filing Time, the Company shall be made in accordance with the terms agreed upon between first (A) prepare and deliver to the Agent and the Company as evidenced by Forward Purchaser (with a Terms Agreement; copy to their counsel) a Current Report on Form 8-K that includes substantially the Agentsame financial and related information (together with management’s commitment discussion and analysis thereof) that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to purchase Placement Shares from the Company as principal shall be deemed Agent and the Forward Purchaser, and, prior to be made on its filing, obtain the basis written consent of the accuracy of the representation and warranties of the Company, the Operating Partnership Agent and the ManagerForward Purchaser to such filing (which consent shall not be unreasonably withheld), and performance by (B) provide the Company, the Operating Partnership Agent and the Manager of their covenants and other obligations, herein contained and shall be subject to Forward Purchaser with the terms and conditions herein set forth; at the time of each Terms Agreement, the Agent shall specify the requirements, if any, for the officer’s officers’ certificate, opinions and letters of accountants counsel and counsel pursuant to accountants’ letter specified in Section 8(l7(l), (m) and (n), respectively, hereof, (C) afford the Agent and Section 11(g) hereof. In the event of a conflict between the terms of this Agreement and a Terms Agreement, the terms of such Terms Agreement shall control.4

Sale of Placement Shares. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, upon the Agent’s acceptance of the terms of a Placement Notice, and unless the sale of the Placement Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement, the Agent, for the period specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable state and federal laws, rules and regulations and the rules of the Exchange to sell such Placement Shares with respect to which the Agent has agreed to act as sales agent and up to the amount specified in, and otherwise in accordance with the terms of, such Placement Notice. The Company acknowledges and agrees that (i) there can be no assurance that the Agent will be successful in selling Placement Shares, (ii) the Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Placement Shares for any reason other than a failure by the Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law state and federal laws, rules and regulations and the rules of the Exchange to sell such Placement Shares as required under this Agreement, Agreement and (iii) the Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by the Agent and the Company. Subject to such further limitations on offers and sales of Placement Shares or delivery of instructions to offer and sell Placement Shares as are set forth herein and as may be mutually agreed upon by the Company and (iv) Placement Shares purchased from the Company by the Agent, individually or in a syndicate, as principal shall be made in accordance with the terms agreed upon between the Agent and the Company as evidenced by a Terms Agreement; shall not request the Agent’s commitment to purchase sale of any Placement Shares from the Company as principal shall that would be deemed to be made on the basis of the accuracy of the representation and warranties of the Company, the Operating Partnership and the Managersold, and performance by the Company, the Operating Partnership and the Manager of their covenants and other obligations, herein contained and shall be subject to the terms and conditions herein set forth; at the time of each Terms Agreement, the Agent shall specify not be obligated to sell, (i) during any period in which the requirementsCompany’s xxxxxxx xxxxxxx policy, if anyas it exists on the date of this Agreement, would prohibit the purchase or sale of any Placement Shares by any of its officers or directors, (ii) any time during the period commencing on the tenth business day prior to the time Company shall issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of operations (each, an “Earnings Announcement”) through and including the time that is 24 hours after the time that the Company files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the officer’s certificatesame period or periods, opinions and letters as the case may be, covered by such Earnings Announcement, or (iii) during any other period in which the Company is in possession of accountants and counsel pursuant material non-public information related to Section 8(l), (m) and (n) and Section 11(g) hereof. In the event of a conflict between Company or the terms of this Agreement and a Terms Agreement, the terms of such Terms Agreement shall controlCommon Stock.

Sale of Placement Shares. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, upon the AgentEvercore’s acceptance of the terms of a Placement NoticeNotice or upon receipt by Evercore of an Acceptance, as the case may be, and unless the sale of the Placement Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement, the AgentEvercore, for the period specified in the Placement NoticeNotice (as amended by the corresponding Acceptance, if applicable), will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Placement Shares up to the amount specified inspecified, and otherwise in accordance with the terms of, of such Placement NoticeNotice (as amended by the corresponding Acceptance, if applicable). Evercore will provide written confirmation to the Company no later than the opening of the Trading Day immediately following the Trading Day on which it has made sales of Placement Shares hereunder setting forth the number of Placement Shares sold on such day, the compensation payable by the Company to Evercore pursuant to Section 4 with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by Evercore (as set forth in Section 5(a)) from the gross proceeds that it receives from such sales. Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), Evercore may sell Placement Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, including without limitation sales made directly on the Exchange, on any other existing trading market for the Common Stock or to or through a market maker. Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable) and the rules and regulations of the Exchange or such other exchange or market on which the Common Stock is listed, Evercore may also sell Placement Shares by any other method permitted by law, including but not limited to privately negotiated transactions. The Company acknowledges and agrees that (i) there can be no assurance that the Agent Evercore will be successful in selling Placement Shares, (ii) the Agent Evercore will incur no liability or obligation to the Company or any other person or entity if it does not sell Placement Shares for any reason other than a failure by the Agent Evercore to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Placement Shares as required under this Agreement, Section 3 and (iii) the Agent Evercore shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by Evercore in the Agent and the Company and Placement Notice (iv) Placement Shares purchased from the Company as amended by the Agentcorresponding Acceptance, individually or in a syndicateif applicable). For the purposes hereof, as principal shall be made in accordance with the terms agreed upon between the Agent “Trading Day” means any day on which shares of Common Stock are purchased and the Company as evidenced by a Terms Agreement; the Agent’s commitment to purchase Placement Shares from the Company as principal shall be deemed to be made sold on the basis of principal market on which the accuracy of the representation and warranties of the Company, the Operating Partnership and the Manager, and performance by the Company, the Operating Partnership and the Manager of their covenants and other obligations, herein contained and shall be subject to the terms and conditions herein set forth; at the time of each Terms Agreement, the Agent shall specify the requirements, if any, for the officer’s certificate, opinions and letters of accountants and counsel pursuant to Section 8(l), (m) and (n) and Section 11(g) hereof. In the event of a conflict between the terms of this Agreement and a Terms Agreement, the terms of such Terms Agreement shall controlCommon Stock is listed or quoted.

Sale of Placement Shares. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, upon the Agent’s Rxxx’x acceptance of the terms of a Placement NoticeNotice or upon receipt by Rxxx of an Acceptance, as the case may be, and unless the sale of the Placement Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement, the AgentRxxx, for the period specified in the Placement NoticeNotice (as amended by the corresponding Acceptance, if applicable), will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Placement Shares up to the amount specified inspecified, and otherwise in accordance with the terms of, of such Placement NoticeNotice (as amended by the corresponding Acceptance, if applicable). Rxxx will provide written confirmation to the Company no later than the opening of the Trading Day immediately following the Trading Day on which it has made sales of Placement Shares hereunder setting forth the number of Placement Shares sold on such day, the compensation payable by the Company to Rxxx pursuant to Section 4 with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by Rxxx (as set forth in Section 5(a)) from the gross proceeds that it receives from such sales. Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), Rxxx may sell Placement Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, including without limitation sales made directly on the Exchange, on any other existing trading market for the Common Stock or to or through a market maker. Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable) and the rules and regulations of the Exchange or such other exchange or market on which the Common Stock is listed, Rxxx may also sell Placement Shares by any other method permitted by law, including but not limited to in privately negotiated transactions. The Company acknowledges and agrees that (i) there can be no assurance that the Agent Rxxx will be successful in selling Placement Shares, (ii) the Agent Rxxx will incur no liability or obligation to the Company or any other person or entity if it does not sell Placement Shares for any reason other than a failure by the Agent Rxxx to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Placement Shares as required under this Agreement, Section 5 and (iii) the Agent Rxxx shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by Rxxx in the Agent and the Company and Placement Notice (iv) Placement Shares purchased from the Company as amended by the Agentcorresponding Acceptance, individually or in a syndicateif applicable). For the purposes hereof, as principal shall be made in accordance with the terms agreed upon between the Agent “Trading Day” means any day on which shares of Common Stock are purchased and the Company as evidenced by a Terms Agreement; the Agent’s commitment to purchase Placement Shares from the Company as principal shall be deemed to be made sold on the basis of principal market on which the accuracy of the representation and warranties of the Company, the Operating Partnership and the Manager, and performance by the Company, the Operating Partnership and the Manager of their covenants and other obligations, herein contained and shall be subject to the terms and conditions herein set forth; at the time of each Terms Agreement, the Agent shall specify the requirements, if any, for the officer’s certificate, opinions and letters of accountants and counsel pursuant to Section 8(l), (m) and (n) and Section 11(g) hereof. In the event of a conflict between the terms of this Agreement and a Terms Agreement, the terms of such Terms Agreement shall controlCommon Stock is listed or quoted.

Sale of Placement Shares. On (i)On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, upon the Designated Agent’s acceptance of the terms of a Placement Notice, and unless the sale of the Placement Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement, the Designated Agent, for the period specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Placement Shares up to the amount specified in, and otherwise in accordance with the terms of, such Placement Notice. The Company acknowledges and agrees that (iA) there can be no assurance that the Designated Agent will be successful in selling Placement Shares, (iiB) the Designated Agent will not incur no any liability or obligation to the Company or any other person or entity if it does not sell Placement Shares for any reason other than a failure by the Designated Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Placement Shares as required under this Agreement, (iiiC) other than to the extent set forth in the applicable Confirmation, the Designated Forward Purchaser will not incur any liability or obligation to the Company or any other person or entity if it or its affiliate does not borrow Forward Hedge Shares for any reason other than a failure by the Designated Forward Purchaser to use its commercially reasonable efforts to borrow or cause its affiliate to borrow such Forward Hedge Shares, and (D) the Designated Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by the Designated Agent and the Company and (iv) Placement Shares purchased from the Company by the Agent, individually or in a syndicate, as principal shall be made in accordance with the terms agreed upon between the Agent and the Company as evidenced by a Terms Agreement; the Agent’s commitment to purchase Placement Shares from the Company as principal shall be deemed to be made on the basis of the accuracy of the representation and warranties of the Company, the Operating Partnership and the Manager, and performance by the Company, the Operating Partnership and the Manager of their covenants and other obligations, herein contained and shall be subject to the terms and conditions herein set forth; at the time of each Terms Agreement, the Agent shall specify the requirements, if any, for the officer’s certificate, opinions and letters of accountants and counsel pursuant to Section 8(l), (m) and (n) and Section 11(g) hereof. In the event of a conflict between the terms of this Agreement and a Terms Agreement, the terms of such Terms Agreement shall control.