Equity Distribution Agreement dated September 10, 2021 between the Company and BMO Capital Markets Corp., BTIG, LLC, Jefferies LLC, Raymond James & Associates, Inc., BofA Securities, Inc., UBS Securities LLC, Piper Sandler & Co., and certain of their affiliates

Ladies and Gentlemen:

1.Sale and Delivery of the Shares

(i)The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed upon by the Company, the applicable Manager and, if applicable, the relevant Forward Purchaser on any day that (I) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time), (II) the Company, through any of the individuals listed as authorized representatives of the Company on Schedule 1 hereto (the “Authorized Company Representatives”), has instructed the applicable Manager by telephone (confirmed promptly by electronic mail) to make sales of Shares on terms acceptable to such Manager and (III) the Company has satisfied its obligations under Section 4 hereof. If the Company wishes to issue and sell through or to a Manager, as sales agent and/or principal, it will so designate in a notice delivered by electronic mail to the applicable Manager, substantially in

the form attached hereto as Exhibit A-1 (a “Regular Placement Notice”). If the Company wishes that a Manager, as forward seller, offer and sell Forward Hedge Shares it will so designate in a notice delivered by electronic mail to the applicable Manager and the applicable Forward Purchaser, substantially in the form attached hereto as Exhibit A-2 (a “Forward Placement Notice”). Such Regular Placement Notice or Forward Placement Notice (a “Placement Notice”) shall specify: (1) any minimum price below which sales of Shares may not be effected, (2) in the case of a Forward Placement Notice, (A) the Forward Hedge Selling Period (as defined below), (B) the maximum aggregate gross sales price or the maximum number of Forward Hedge Shares to be sold by the applicable Manager over the Forward Hedge Selling Period specified in such notice (such maximum aggregate gross sales price or share number, the “Aggregate Maximum Forward Hedge Amount”), (C) the Forward Seller Commission (as defined below), (D) the Spread, (E) the Initial Stock Loan Rate, (F) the Maximum Stock Loan Rate, (G) the Trade Date, (H) the Maturity Date, (I) the Forward Price Reduction Dates and (J) the Forward Price Reduction Amounts (each as defined in each applicable Confirmation), and (3) the maximum amount of Shares to be sold by the applicable Manager daily as agreed to by the applicable Manager and, if applicable, the relevant Forward Purchaser; provided that such amount shall not be in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the Maximum Amount; and provided, further, that, in the case of a Forward Placement Notice, (x) the sum of (1) the number of Confirmation Shares issued under all Confirmations that have settled as of the contemplated date of delivery, (2) the aggregate Capped Number (as defined in each applicable Confirmation) under all Confirmations outstanding as of the contemplated date of delivery that have not settled and (3) the proposed Capped Number for the Confirmation related to such Forward Placement Notice shall not exceed (y) 19.99% of the number of shares of Shares outstanding as of the date of this Agreement. The Placement Notice may also specify any other limitations mutually agreed to by the applicable Manager and, if applicable, the relevant Forward Purchaser. Subject to the terms and conditions of this Section 1(a), the applicable Manager may sell Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act (an “At the Market Offering”), including without limitation sales made directly on the NYSE, on any other existing trading market for the Shares to or through a market maker, or directly to any customer or client of the applicable Manager. The applicable Manager may also sell Shares by any other method permitted by law, including but not limited to in privately negotiated transactions, as shall be mutually agreed upon by the Company, such Manager and, if applicable, such Forward Purchaser. The “Forward Hedge Selling Period” means the period of such number of consecutive trading days (as specified in the applicable Forward Placement Notice), beginning on the date specified in such Forward Placement Notice or, if such date is not a trading day, the next trading day following such date and ending on the last such trading day or such earlier date on which the applicable Manager, as forward seller, shall have completed the sale of Forward Hedge Shares in connection with the relevant Confirmation; provided, however, that if, prior to the scheduled end of any Forward Hedge Selling Period (x) any event occurs that would permit the Forward Purchaser to designate a Scheduled Trading Day as an Early Valuation Date (each as defined in each applicable Confirmation) under, and pursuant to, the provisions of Section 2 of the applicable Confirmation or (y) a Bankruptcy Termination Event (as defined in each applicable Confirmation) occurs, then the Forward Hedge Selling Period shall, upon the applicable Manager, as forward seller, becoming aware of such occurrence, immediately terminate as of the

first such occurrence; and provided, further, that any Forward Hedge Selling Period then in effect shall immediately terminate upon the termination of this Agreement. The applicable Manager may accept such Placement Notice by telephone or in writing (including electronic mail).

(e)Notwithstanding any other provision of this Agreement, no sales of Shares shall take place, the Company shall not request the sales of any Shares that would be sold and the Agents shall not be obligated to sell or offer to sell any Shares, during any period in which the

Company’s insider trading or similar policy, as in effect as of such date, would prohibit the purchase or sale of Common Shares by persons subject to such policy, or during any other period in which the Company is, or could be deemed to be, in possession of material non-public information with respect to the Company.

(p)No Consent. No consent, approval, authorization, order, license, certificate, permit, registration, designation or filing by or with any governmental agency or body is required for the authorization, delivery and performance by the Company and the Operating Partnership of their respective obligations under this Agreement and the consummation by the Company and the Operating Partnership of the transactions contemplated hereby, including the valid authorization, issuance, sale and delivery of the Shares, except such as may be required by

the federal securities laws, the NYSE, the securities or Blue Sky laws of the various states and the Financial Industry Regulatory Association (“FINRA”) in connection with the offer and sale of the Shares, all of which will be, or have been obtained, or in the case of the NYSE, will be applied for, in accordance with this Agreement.

(l)     Prior to any offer or sales of Forward Hedge Shares by an Agent, the Company shall have executed and delivered a Master Confirmation to the applicable Forward Purchaser substantially in the form set forth in Schedule D hereto relating to such Forward;

provided that the Company shall be required to only execute one Master Confirmation with each Forward Purchaser.

(m)     Prior to the first trading day following the applicable Hedge Completion Date relating to any Forward, the Company shall have executed and delivered a Supplemental Confirmation to the applicable Forward Purchaser substantially in the form set forth in Schedule D hereto relating to such Forward.

5.Indemnification.

6.Termination.

7.Miscellaneous.

 

 

Confirmed as of the date first above mentioned:

BANK OF AMERICA, N.A


By:     
    Name:
    Title:

BOFA SECURITIES, INC.


By:     
    Name:
    Title:

BTIG, LLC


By:     
    Name:
    Title:

By:     
    Name:
    Title:

By:     
    Name:
    Title:

By:                     
    Name:
    Title:

UBS AG LONDON BRANCH


By:                 
    Name:
    Title:

By:                 
    Name:
    Title:

UBS SECURITIES LLC


By:                 
    Name:
    Title:

By:                 
    Name:
    Title:

The information in the first three sentences of the first paragraph under the caption “Plan of Distribution (Conflicts of Interest) —Other Relationships” and the second and third sentences of the first paragraph under the caption “Plan of Distribution (Conflicts of Interest) —Conflict of Interest.”

None as of the date of this Equity Distribution Agreement to which this Schedule is attached.

[_______], 20[__]

[•]

VIA EMAIL

Ladies and Gentlemen:

Trading Day(s) on which Shares may be Sold:    [_______], 20[__], [_______], 20[__] . . . [_______], 20[__]

Maximum Number of Shares

to be Sold in the Aggregate:    [_______]

Maximum Number of Shares

to be Sold on each Trading Day:    [_______]

Floor Price:    USD[__.__]

Compensation:    [_______]% of the gross proceeds from the sale of Shares

Very truly yours,

 

Accepted and agreed as of
the date first above written:

[•]

By:______________________________
Name:
Title:

Ladies and Gentlemen:

1 Adjustable by the Company during the Forward Hedge Selling Period.

[•]

Ladies and Gentlemen:

Accepted and agreed as of

the date first above written:

[•]

By:_____________________________

Name:

Title:

[Price to Public:

    USD[__.__] per share]

Purchase Price by [•]:

    USD[__.__] per share

Method of and Specified Funds for Payment of Purchase Price:

[By wire transfer to a bank account specified by the Company in same-day funds.]

Method of Delivery:

[To [•]’s account, or the account of [•]’s designee, at The Depository Trust Company via DWAC in return for payment of the purchase price.]

Settlement Date:

    [_______], 20[__]

Closing Location:

    [_______]

Documents To Be Delivered:

The following documents referred to in the Equity Distribution Agreement shall be delivered as a condition to the closing (which documents shall be dated on or as of the date of the Terms Agreement to which this Schedule is annexed):

•the officer’s certificate referred to in Section 4(c);

•the legal opinions referred to in Sections 4(d) and (e);

•the “comfort letter” referred to in Section 4(f); and

•such other documents as [•] shall reasonably request.

[Indemnity:

    [_______]]

[Lockup:

    In addition to, and without limiting the generality of, the covenant set forth in Section 3(q) of the Equity Distribution Agreement, [________].]

1.The Company is a real estate investment trust duly formed under the laws of the State of North Dakota.

2.The Operating Partnership is a limited partnership duly formed under the laws of the State of North Dakota.

3.We have no knowledge that there are any actions, suits, claims, investigations or proceedings pending or threatened in writing to which the Company, the Operating Partnership or any of the Subsidiaries or any of their respective directors or officers is or would be a party or to which any of their respective properties is or would be subject at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement or the Prospectus but are not so described as required.

Ladies and Gentlemen:

3.    Effectiveness.

4.    Additional Mutual Representations and Warranties.

5.    Additional Representations and Warranties of Counterparty.

6.    Additional Covenants of Counterparty.

7.    Termination on Bankruptcy.

The parties hereto agree that, notwithstanding anything to the contrary in the Agreement or the Equity Definitions, each Transaction constitutes a contract to issue a security of Counterparty as contemplated by Section 365(c)(2) of the Bankruptcy Code and that each Transaction and the obligations and rights of Counterparty and Dealer (except for any liability as a result of breach of any of the representations or warranties provided by Counterparty in Section 4 or Section 5 of this Master Confirmation) shall immediately terminate, without the necessity of any notice, payment (whether directly, by netting or otherwise) or other action by Counterparty or Dealer, if, on or prior to the relevant final Settlement Date, Cash Settlement Payment Date or Net Share Settlement Date, an Insolvency Filing occurs or any other proceeding commences with respect to Counterparty under the Bankruptcy Code (a “Bankruptcy Termination Event”).

8.    Additional Provisions.

(i)each Transaction to be a “securities contract” as defined in Section 741(7) of the Bankruptcy Code, and the parties hereto to be entitled to the protections afforded by, among other Sections, Sections 362(b)(6), 362(b)(27), 362(o), 546(e), 546(j), 555 and 561 of the Bankruptcy Code;

(ii)the rights given to Dealer pursuant to “Early Valuation” in Section 2 of this Master Confirmation to constitute “contractual rights” to cause the liquidation of a “securities contract” and to set off mutual debts and claims in connection with a “securities contract”, as such terms are used in Sections 555 and 362(b)(6) of the Bankruptcy Code;

(iii)any cash, securities or other property provided as performance assurance, credit support or collateral with respect to any Transaction to constitute “margin payments” and “transfers” under a “securities contract” as defined in the Bankruptcy Code;

(iv)all payments for, under or in connection with any Transaction, all payments for Shares and the transfer of Shares to constitute “settlement payments” and “transfers” under a “securities contract” as defined in the Bankruptcy Code; and

(v)any or all obligations that either party has with respect to any Confirmation or the Agreement to constitute property held by or due from such party to margin, guaranty or settle obligations of the other party with respect to the transactions under the Agreement (including each Transaction) or any other agreement between such parties.

9.    [INTENTIONALLY OMITTED]

10.    Beneficial Ownership.

11.    Non-Confidentiality.

12.    Use of Shares.

13.    Restricted Shares.

14.    Set-Off.

15.    Staggered Settlement.

18.    Submission to Jurisdiction.

Section 13(b) of the Agreement is deleted in its entirety and replaced by the following:

19.    Counterparts.

20.    Taxes.

i.[It [(or its regarded owner for U.S. federal income tax purposes)] is a “U.S. person” (as that term is used in section 1.1441-4(a)(3)(ii) of the United States Treasury Regulations) for U.S. federal income tax purposes.] [It is a “U.S. person” (as that term is used in section 7701(a)(30) of the Code (as defined below) and in section.1441-4(a)(3)(ii) of the United States Treasury Regulations) for U.S. federal income tax purposes.]

ii. [It is a national banking association organized and existing under the laws of the United States of America, and is an exempt recipient under section 1.6049-4(c)(1)(ii)(M) of the United States Treasury Regulations.]

iii.    [It is acting through a dependent agent located in the United States (including only the States thereof and the District of Columbia); it is a “foreign person” (as that term is used in section 1.6041-4(a)(4) of the United States Treasury Regulations) for U.S. federal income tax purposes; and each payment received or to be received by it in connection with any Confirmation will be effectively connected with its conduct of a trade or business in the United States.]

iv. [●]

i.(i)    It is a “U.S. person” (as that term is used in section 1.1441-4(a)(3)(ii) of the United States Treasury Regulations) for U.S. federal income tax purposes.

ii.(ii)    It is a real estate investment trust for U.S. federal income tax purposes, it is organized under the laws of the State of Maryland, and it is an exempt recipient under section 1.6049-4(c)(1)(ii)(J) of the United States Treasury Regulations.

21.    US Resolution Stay Protocol.

“QFC Stay Rules” mean the regulations codified at 12 C.F.R. 252.2, 252.81–8, 12 C.F.R. 382.1- 7 and 12 C.F.R. 47.1-8, which, subject to limited exceptions, require an express recognition of the stay-and-transfer powers of the FDIC under the Federal Deposit Insurance Act and the Orderly Liquidation Authority under Title II of the Dodd Frank Wall Street Reform and Consumer Protection Act and the override of default rights related directly or indirectly to the entry of an affiliate into certain insolvency proceedings and any restrictions on the transfer of any covered affiliate credit enhancements.

Please confirm that the foregoing correctly sets forth the terms of the agreement between Dealer and Counterparty by executing one original copy of this Master Confirmation and returning such copy to Dealer and retaining the other original copy bearing the signature of Dealer for your records.

Ladies and Gentlemen:

The terms of the Transaction to which this Supplemental Confirmation relates are as follows:

(a)    the Trade Date is [ ];

(b)    the Maturity Date is [ ];

(c)    the Hedge Completion Date is [ ];

(d)    the Initial Number of Shares is [ ];

(e)    the Volume-Weighted Hedge Price is USD [ ];

(f)    the Net Percentage is [ ]%;

(g)    the Spread is [ ]%;

(h)    the Initial Forward Price is USD [ ];

(i)    the Initial Stock Loan Rate is [ ] basis points per annum; and

(j)    the Maximum Stock Loan Rate is [ ] basis points per annum.

Forward Price Reduction Dates and Forward Price Reduction Amounts are as set forth in Schedule I hereto.

Please confirm that the foregoing correctly sets forth the terms of the agreement between Dealer and Counterparty by executing one original copy of this Supplemental Confirmation and returning such copy to Dealer and retaining the other original copy bearing the signature of Dealer for your records.

Yours faithfully,

By:    

Name:

Title:

Agreed and accepted by:

By:                    

Name:

Title:

1 Insert Forward Price Reduction Date that falls after the Maturity Date.