Common use of Issuance and Sale Clause in Contracts

Issuance and Sale. (a) Upon the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein and provided the Company provides the Subject Agent with any due diligence materials and information reasonably requested by the Subject Agent necessary for the Subject Agent to satisfy its due diligence obligations, on any Exchange Business Day (as defined below) selected by the Company, the Company and the Subject Agent shall enter into an agreement in accordance with Section 2 hereof regarding the number of Shares to be placed by the Subject Agent, as agent, and the manner in which and other terms upon which such placement is to occur (each such transaction being referred to as an “Agency Transaction”). The Company may also offer to sell the Shares directly to the Subject Agent, as principal, in which event such parties shall enter into a separate agreement (each, a “Terms Agreement”) in substantially the form of Exhibit A hereto (with such changes thereto as may be agreed upon by the Company and the Subject Agent to accommodate a transaction involving more than one Agent), relating to such sale in accordance with Section 2(g) of this Agreement (each such transaction being referred to as a “Principal Transaction”). Whenever the Company determines to sell the Shares directly to an Alternative Agent as principal, it will enter into a separate agreement (each, an “Alternative Terms Agreement”) in substantially the form of Exhibit A to the applicable Alternative Distribution Agreement (with such changes thereto as may be agreed upon by the Company and the Alternative Agent party thereto to accommodate a transaction involving more than one Agent). As used herein, (i) the “Term” shall be the period commencing on the date hereof and ending on the earliest of (x) the date on which the aggregate number of Shares issued and sold pursuant to the Distribution Agreements, any Terms Agreements and any Alternative Terms Agreements is equal to the Maximum Number and (y) any termination of this Agreement pursuant to Section 8, (ii) an “Exchange Business Day” means any day during the Term that is a trading day for the Exchange other than a day on which trading on the Exchange is scheduled to close prior to its regular weekday closing time, and (iii) “Exchange” means the New York Stock Exchange.

Issuance and Sale. (a) Upon the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein and provided the Company provides the Subject Agent with any due diligence materials and information reasonably requested by the Subject Agent necessary for the Subject Agent to satisfy its due diligence obligations, on any Exchange Business Day (as defined below) selected by the Company, the Company and the Subject Agent shall enter into an agreement in accordance with Section 2 hereof regarding the number of Shares to be placed by the Subject Agent, as agent, and the manner in which and other terms upon which such placement is to occur (each such transaction being referred to as an “Agency Transaction”). The Company may also offer to sell the Shares directly to the Subject Agent, as principal, in which event such parties shall enter into a separate agreement (each, a “Terms Agreement”) in substantially the form of Exhibit A hereto (with such changes thereto as may be agreed upon by the Company and the Subject Agent to accommodate a transaction involving more than one Agent), relating to such sale in accordance with Section 2(g) of this Agreement (each such transaction being referred to as a “Principal Transaction”). Whenever the Company determines to sell the Shares directly to an Alternative Agent as principal, it will enter into a separate agreement (each, an “Alternative Terms Agreement”) in substantially the form of Exhibit A to the applicable Amended and Restated Alternative Distribution Agreement (with such changes thereto as may be agreed upon by the Company and the Alternative Agent party thereto to accommodate a transaction involving more than one Agent). As used herein, (i) the “Term” shall be the period commencing on the date hereof and ending on the earliest earlier of (x) the date on which the aggregate number of Shares issued and sold pursuant to the Distribution Agreements, any Terms Agreements and any Alternative Terms Agreements is equal to the Maximum Number and (y) any termination of this Agreement pursuant to Section 8, (ii) an “Exchange Business Day” means any day during the Term that is a trading day for the Exchange other than a day on which trading on the Exchange is scheduled to close prior to its regular weekday closing time, and (iii) “Exchange” means the New York Stock Exchange.

Issuance and Sale. (a) Upon the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein and provided that the Company provides the Subject Agent Agents with any due diligence materials and information reasonably requested by the Subject Agent Agents necessary for the Subject Agent Agents to satisfy its their due diligence obligations, on any Exchange Business Day (as defined below) selected by the Company, the Company and the Subject Agent of the Company’s choice (i.e. the applicable Agent) shall enter into an agreement in accordance with Section 2 hereof regarding the number of Shares to be placed by the Subject applicable Agent, as agent, and the manner in which and other terms upon which such placement is to occur (each such transaction being referred to as an “Agency Transaction”). The Company may also offer to sell the Shares directly to the Subject applicable Agent, as principal, in which event such parties shall enter into a separate agreement (each, a “Terms Agreement”) in substantially the form of Exhibit A hereto (with such changes thereto as may be agreed upon by the Company and the Subject applicable Agent to accommodate a transaction involving more than one Agentadditional underwriters), relating to such sale in accordance with Section 2(g) of this Agreement (each such transaction being referred to as a “Principal Transaction”). Whenever the Company determines to sell the Shares directly to an Alternative Agent as principal, it will enter into a separate agreement (each, an “Alternative Terms Agreement”) in substantially the form of Exhibit A to the applicable Alternative Distribution Agreement (with such changes thereto as may be agreed upon by the Company and the Alternative Agent party thereto to accommodate a transaction involving more than one Agent). As used herein, (i) the “Term” shall be the period commencing on the date hereof and ending on the earliest earlier of (x) the date on which the aggregate number amount of Shares issued and sold pursuant to the Distribution Agreements, any Terms Agreements this Agreement and any Alternative Terms Agreements is equal to the Maximum Number Amount and (y) any termination of this Agreement pursuant to Section 88 hereof, (ii) an “Exchange Business Day” means any day during the Term that is a trading day for the Exchange other than a day on which trading on the Exchange is scheduled to close prior to its regular weekday closing time, and (iii) “Exchange” means the New York Stock Exchange and (iv) “Time of Sale” means (A) with respect to each offering of Shares pursuant to this Agreement, the time of the applicable Agent’s initial entry into contracts with investors for the sale of such Shares or initial sale of such Shares on the Exchange, as applicable, and (B) with respect to each offering of Shares pursuant to any relevant Terms Agreement, the time of sale of such Shares.

Issuance and Sale. (a) Upon the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein and provided the Company provides the Subject applicable Agent with any due diligence materials and information reasonably requested by the Subject such Agent or its counsel necessary for the Subject such Agent to satisfy its due diligence obligations, on any Exchange Business Day (as defined below) selected by the Company, the Company and the Subject such Agent shall enter into an agreement in accordance with Section 2 hereof regarding the number of Shares to be placed by the Subject such Agent, as agent, and the manner in which and other terms upon which such placement is to occur (each such transaction being referred to as an “Agency Transaction”). The Company may also (i) offer to sell the Shares directly to the Subject an Agent, as principal, in which event such parties shall enter into a separate agreement (each, a “Terms Agreement”) in substantially the form of Exhibit A hereto (with such changes thereto as may be agreed upon by the Company and the Subject such Agent to accommodate a transaction involving more than one Agentadditional underwriters), relating to such sale in accordance with Section 2(g) of this Agreement (each such transaction being referred to as a “Principal Transaction”). Whenever the Company determines to sell the Shares directly to an Alternative Agent as principal, it will ) or (ii) enter into a separate agreement one or more forward stock purchase transactions (each, an a “Alternative Terms AgreementForward Transaction”) with a Forward Purchaser as set forth in substantially the a separate letter agreement, a form of which is attached hereto as Exhibit A to B (each, a “Confirmation”, and together the applicable Alternative Distribution Agreement (with such changes thereto as may be agreed upon by the Company and the Alternative Agent party thereto to accommodate a transaction involving more than one Agent“Confirmations”). As used herein, (i) the “Term” shall be the period commencing on the date hereof and ending on the earliest earlier of (x) the date on which the aggregate number Gross Sales Price of Shares issued and sold pursuant to the Distribution Agreementsthis Agreement, any Terms Agreements Agreement and any Alternative Terms Agreements Confirmation is equal to the Maximum Number Amount and (y) any termination of this Agreement pursuant to Section 88 hereof, (ii) an “Exchange Business Day” means any day during the Term that is a trading day for the Exchange other than a day on which trading on the Exchange is scheduled to close prior to its regular weekday closing time, and (iii) “Exchange” means the New York Stock ExchangeNasdaq Global Select Market and (iv) “Forward Settlement Date” means, for sales in establishing the applicable Forward Purchaser’s initial hedge under any Confirmation, unless otherwise specified, the second (2nd) Exchange Business Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made.

Issuance and Sale. (a) Upon the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein and provided the Company provides the Subject Agent with any due diligence materials and information reasonably requested by the Subject Agent necessary for the Subject Agent to satisfy its due diligence obligations, on any Exchange Business Day (as defined below) selected by the Company, the Company and the Subject Agent JPMS shall enter into an agreement in accordance with Section 2 hereof regarding the number of Shares to be placed by the Subject Agent, as agent, JPMS and the manner in which and other terms upon which such placement is to occur (each such transaction being referred to as an “Agency Transaction”). The Company may also offer to sell the Shares directly to the Subject AgentJPMS, as principal, in which event such parties shall enter into a separate agreement (each, a “Terms Agreement”) in substantially the form of Exhibit A hereto (with such changes thereto as may be agreed upon by the Company and the Subject Agent to accommodate a transaction involving more than one Agent)hereto, relating to such sale in accordance with Section 2(g) of this Agreement (each such transaction being referred to as a “Principal Transaction”). Whenever the Company determines to sell the Shares directly to an Alternative Agent as principal, it will enter into a separate agreement (each, an “Alternative Terms Agreement”) in substantially the form of Exhibit A to the applicable Alternative Distribution Agreement (with such changes thereto as may be agreed upon by the Company and the Alternative Agent party thereto to accommodate a transaction involving more than one Agent). As used hereinin this Agreement, (i) the “Term” shall be the period commencing on the date hereof and ending on the earliest of (x) the date on which the aggregate Gross Sales Price of Shares issued and sold pursuant to the this Agreement and any Terms Agreements is equal to the Maximum Amount, (y) the date on which the number of Shares issued and sold pursuant to the Distribution Agreements, any Terms Agreements this Agreement and any Alternative Terms Agreements is equal to the Maximum Number and (yz) any termination of this Agreement pursuant to Section 8, (ii) “Exchange” means the New York Stock Exchange and (iii) an “Exchange Business Day” means any day during the Term that is a trading day for the Exchange other than a day on which trading on the Exchange is scheduled to close prior to its regular weekday closing time. (b) Subject to the terms and conditions set forth below, the Company appoints JPMS as an agent in connection with the offer and sale of Shares in any Agency Transactions entered into hereunder. JPMS will use commercially reasonable efforts to sell such Shares in accordance with the terms and conditions hereof and of the applicable Transaction Notice (as defined below). Neither the Company nor JPMS shall have any obligation to enter into an Agency Transaction. The Company shall be obligated to issue and sell through JPMS, and JPMS shall be obligated to use commercially reasonable efforts, as provided herein and in the applicable Transaction Notice, to place Shares issued by the Company only if and when a Transaction Notice related to such an Agency Transaction has been delivered by JPMS and accepted by the Company as provided in Section 2 below. (c) JPMS, as agent in any Agency Transaction, hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Agreement, other than (i) by means of ordinary brokers’ transactions between members of the Exchange that qualify for delivery of a Prospectus in accordance with Rule 153 under the Act and meet the definition of an “at the market offering” under Rule 415(a)(4) under the Act (such transactions are hereinafter referred to as “At the Market Offerings”) and (ii) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and JPMS in writing. (d) JPMS, will confirm in writing to the Company the number of Shares sold on any Exchange Business Day and the related Gross Sales Price and, if Shares are to be sold in an Agency Transaction in an At The Market Offering, the related Net Sales Price (as each of such terms is defined in Section 2(b) below) promptly after the close of trading on such Exchange Business Day, but in any event no later than the opening of trading on the immediately following Exchange Business Day. (e) If the Company shall default on its obligation to deliver Shares to JPMS pursuant to the terms of any Agency Transaction or Terms Agreement, the Company shall (i) indemnify and hold JPMS and its successors and assigns harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) notwithstanding any such default, pay to JPMS the commission to which it would otherwise be entitled in connection with such sale in accordance with Section 2(b) below. (f) The Company acknowledges and agrees that (i) there can be no assurance that JPMS will be successful in selling the Shares, (ii) JPMS shall incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by JPMS to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (iii) “Exchange” means JPMS shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as may otherwise be specifically agreed by JPMS and the New York Stock ExchangeCompany in a Terms Agreement.

Issuance and Sale. (a) Upon the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein and provided (including that the Company provides the Subject applicable Agent with any due diligence materials and information reasonably requested by the Subject Agent necessary for the Subject Agent to satisfy its due diligence obligationssuch Agent), on any Exchange Business Day (as defined below) selected by the Company, the Company and the Subject such Agent shall enter into an agreement in accordance with Section 2 hereof regarding the number of Shares to be placed by such Agent (or affiliates, successors or assigns of the Subject Agentagents), as agent, and the manner in which and other terms upon which such placement is to occur (each such transaction being referred to as an “Agency Transaction”). The Company may also offer to sell the Shares directly to an Agent (or affiliates, successors or assigns of the Subject Agentagents), to be purchased as principal, in which event such parties shall may enter into a separate agreement that sets the terms of the principal transaction (eacheach such agreement, a “Terms Agreement”) in substantially the form of Exhibit A hereto (with such changes thereto as may be agreed upon by the Company and the Subject such Agent to accommodate a transaction involving more than one Agent), relating to such sale in accordance with Section 2(g) of this Agreement (each such transaction being referred to as principal transaction, a “Principal Transaction”). Whenever the Company determines to sell the Shares directly to an Alternative Agent as principalprincipal pursuant to an Alternative Distribution Agreement, it will may enter into a separate agreement (each, an “Alternative Terms Agreement”) in substantially the form of Exhibit A to the applicable such Alternative Distribution Agreement (with such changes thereto as may be agreed upon by the Company and the Alternative Agent party thereto to accommodate a transaction involving more than one Agent)Agreement. As used herein, (i) “Gross Sales Price” means the gross sales price of the Shares sold in an Agency Transaction, in a Principal Transaction or as Forward Hedge Shares, as applicable, (ii) the “Term” shall be the period commencing on the date hereof and ending on the earliest earlier of (x) the date on which the aggregate number Gross Sales Price of Shares offered and/or issued and sold pursuant to the this Agreement, any Alternative Distribution AgreementsAgreement, any Terms Agreements and any Alternative Terms Agreements Agreement is equal to the Maximum Number Amount and (y) any termination of this Agreement pursuant to Section 8, (iiiii) an “Exchange Business Day” means any day during the Term that is a trading day for the Exchange other than a is scheduled to be open for trading for its regular trading session (which shall not include any day on which trading on the Exchange is scheduled to close prior to its regular weekday closing time), and (iiiiv) “Exchange” means the New York Stock Exchange.

Issuance and Sale. (a) Upon the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein and provided that each of the Company Carvana Parties provides the Subject Agent Agents with any due diligence materials and information reasonably requested by the Subject Agent Agents necessary for the Subject each Agent to satisfy its respective due diligence obligations, on any Exchange Business Day (as defined below) selected by the Company, the Company and one Agent selected by the Subject Agent Company shall enter into an agreement in accordance with Section 2 hereof regarding the number of Shares to be placed by the Subject such Agent, as agent, and the manner in which and other terms upon which such placement is to occur (each such transaction being referred to as an “Agency Transaction”). The Company may also offer to sell the Shares directly to one Agent selected by the Subject AgentCompany, as principal, in which event such parties shall enter into a separate agreement (each, a “Terms Agreement”) in substantially the form of Exhibit A hereto (with such changes thereto as may be agreed upon by the Company and the Subject such Agent to accommodate a transaction involving more than one Agentadditional underwriters), relating to such sale in accordance with Section 2(g) of this Agreement (each such transaction being referred to as a “Principal Transaction”). Whenever the Company determines to sell the Shares directly to an Alternative Agent as principal, it will enter into a separate agreement (each, an “Alternative Terms Agreement”) in substantially the form of Exhibit A to the applicable Alternative Distribution Agreement (with such changes thereto as may be agreed upon by the Company and the Alternative Agent party thereto to accommodate a transaction involving more than one Agent). As used herein, (i) the “Term” shall be the period commencing on the date hereof and ending on the earliest earlier of (x) the date on which the aggregate number of Shares issued and sold pursuant to the Distribution Agreements, this Agreement and any Terms Agreements and any Alternative Terms Agreements is are equal to the Maximum Number Amount or the Maximum Number, as applicable, and (y) any termination of this Agreement pursuant to Section 8, (ii) an “Exchange Business Day” means any day during the Term that is a trading day for the Exchange other than a day on which trading on the Exchange is scheduled to close prior to its regular weekday closing time, and (iii) “Exchange” means the New York Stock Exchange.

Issuance and Sale. (a) Upon the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein and provided that the Company provides the Subject Agent Agents and the Forward Sellers with any due diligence materials and information reasonably requested by the Subject Agent Agents and the Forward Sellers necessary for the Subject Agent Agents and the Forward Sellers to satisfy its their due diligence obligations, on any Exchange Business Day (as defined below) selected by the Company, (i) the Company and the Subject Agent of the Company’s choice (i.e. the applicable Agent) shall enter into an agreement in accordance with Section 2 hereof regarding the number of Shares to be placed by the Subject applicable Agent, as agent, and the manner in which and other terms upon which such placement is to occur (each such transaction being referred to as an “Agency Transaction”Transaction”),(ii) the Company may enter into a Confirmation with any Forward Purchaser of the Company’s choice and, in consultation with such Forward Purchaser and the applicable Forward Seller (which shall be either the same entity as the Forward Purchaser or an affiliate of the Forward Purchaser). The , to instruct such Forward Purchaser to borrow, offer and sell Shares through such Forward Seller, acting as agent for such Forward Purchaser, in each case, in accordance with the terms of Section 2 and as contemplated by such Confirmation and/or (iii) the Company may also offer to sell the Shares directly to the Subject applicable Agent, as principal, in which event such parties shall enter into a separate agreement (each, a “Terms Agreement”) in substantially the form of Exhibit A hereto (with such changes thereto as may be agreed upon by the Company and the Subject Agent to accommodate a transaction involving more than one Agent), relating to such sale in accordance with Section 2(g) of this Agreement (each such transaction being referred to as a “Principal Transaction”). Whenever the Company determines to sell the Shares directly to an Alternative Agent as principal, it will enter into a separate agreement (each, an “Alternative Terms Agreement”) in substantially the form of Exhibit A to the applicable Alternative Distribution Agreement (with such changes thereto as may be agreed upon by the Company and the Alternative Agent party thereto to accommodate a transaction involving more than one Agent). As used herein, (i) the “Term” shall be the period commencing on the date hereof and ending on the earliest earlier of (x) the date on which the aggregate number amount of Shares issued and sold pursuant to the Distribution Agreementsthis Agreement, any Terms Agreements and any Alternative Terms Agreements Confirmation is equal to the Maximum Number Amount and (y) any termination of this Agreement pursuant to Section 88 hereof, (ii) an “Exchange Business Day” means any day during the Term that is a trading day for the Exchange other than a day on which trading on the Exchange is scheduled to close prior to its regular weekday closing time, and (iii) “Exchange” means the New York Stock Exchange.the

Issuance and Sale. (a) Upon the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein and provided the Company EQR provides the Subject Agent Agents and the Forward Sellers with any due diligence materials and information reasonably requested by the Subject Agent Agents or the Forward Sellers necessary for the Subject Agent Agents and the Forward Sellers to satisfy its their due diligence obligations, on any Exchange Business Trading Day (as defined below) selected by EQR (and, with respect to any Forward, provided no event described in clause (i) or clause (ii) of the Companyproviso contained in the definition of Forward Hedge Selling Period shall have occurred), EQR and the Agent of EQR’s choice (i.e., the Company applicable Agent) (in the case of an Issuance) or the Forward Seller and Forward Purchaser of EQR’s choice (i.e., the Subject Agent applicable Forward Seller and Forward Purchaser) (in the case of a Forward) shall enter into an agreement in accordance with Section 2 hereof regarding which shall at a minimum specify whether it relates to an Issuance or a Forward and shall include the number of Shares Securities to be placed by the Subject Agent, as agent, and the manner in which and other terms upon which such placement is to occur (each such transaction being referred to as an “Agency Transaction”). The Company EQR may also offer to sell the Shares Issuance Securities directly to the Subject applicable Agent, as principal, in which event such parties shall enter into a separate agreement (each, a “Terms Agreement”) in substantially the form of Exhibit A hereto (with such changes thereto as may be agreed upon by the Company EQR and the Subject applicable Agent to accommodate a transaction involving more than one Agentadditional underwriters), relating to such sale in accordance with Section 2(g2(i) of this Agreement (each such transaction being referred to as a “Principal Transaction”). Whenever the Company determines to sell the Shares directly to an Alternative Agent as principal, it will enter into a separate agreement (each, an “Alternative Terms Agreement”) in substantially the form of Exhibit A to the applicable Alternative Distribution Agreement (with such changes thereto as may be agreed upon by the Company and the Alternative Agent party thereto to accommodate a transaction involving more than one Agent). As used herein, (i) the “Term” shall be the period commencing on the date hereof and ending on the earliest earlier of (x) the date on which the aggregate number of Shares Securities issued and sold pursuant to this Agreement, the Distribution Agreements, Master Forward Confirmation and any Terms Agreements and any Alternative Terms Agreements or Supplemental Confirmations is equal to the Maximum Number and (y) any termination of this Agreement pursuant to Section 8, (ii) an a “Exchange Business Trading Day” means any day during the Term that is a trading day for the Exchange other than a day on which trading on the Exchange is scheduled to close prior to its regular weekday closing time, and (iii) “Exchange” means the New York Stock Exchange.

Issuance and Sale. (a) Upon the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein and provided the Company provides the Subject Agent with any due diligence materials and information reasonably requested by the Subject Agent necessary for the Subject Agent to satisfy its due diligence obligations, on any Exchange Business Day (as defined below) selected by the Company, the Company and the Subject Agent Xxxxxxx Xxxxx shall enter into an agreement in accordance with Section 2 hereof regarding the number of Shares to be placed by the Subject Agent, as agent, Xxxxxxx Xxxxx and the manner in which and other terms upon which such placement is to occur (each such transaction being referred to as an “Agency Transaction”). The Company may also offer to sell the Shares directly to the Subject AgentXxxxxxx Xxxxx, as principal, in which event such parties shall enter into a separate agreement (each, a “Terms Agreement”) in substantially the form of Exhibit A hereto (with such changes thereto as may be agreed upon by the Company and the Subject Agent to accommodate a transaction involving more than one Agent)hereto, relating to such sale in accordance with Section 2(g) of this Agreement (each such transaction being referred to as a “Principal Transaction”). Whenever the Company determines to sell the Shares directly to an Alternative Agent as principal, it will enter into a separate agreement (each, an “Alternative Terms Agreement”) in substantially the form of Exhibit A to the applicable Alternative Distribution Agreement (with such changes thereto as may be agreed upon by the Company and the Alternative Agent party thereto to accommodate a transaction involving more than one Agent). As used hereinin this Agreement, (i) the “Term” shall be the period commencing on the date hereof and ending on the earliest of (x) the date on which the aggregate number Gross Sales Price of Shares issued and sold pursuant to the Distribution Agreements, any Terms Agreements this Agreement and any Alternative Terms Agreements is equal to the Maximum Number Amount and (y) any termination of this Agreement pursuant to Section 8, (ii) “Exchange” means the New York Stock Exchange and (iii) an “Exchange Business Day” means any day during the Term that is a trading day for the Exchange other than a day on which trading on the Exchange is scheduled to close prior to its regular weekday closing time. (b) Subject to the terms and conditions set forth below, the Company appoints Xxxxxxx Xxxxx as an agent in connection with the offer and sale of Shares in any Agency Transactions entered into hereunder. Xxxxxxx Xxxxx will use commercially reasonable efforts to sell such Shares in accordance with the terms and conditions hereof and of the applicable Transaction Notice (as defined below). Neither the Company nor Xxxxxxx Xxxxx shall have any obligation to enter into an Agency Transaction. The Company shall be obligated to issue and sell through Xxxxxxx Xxxxx, and Xxxxxxx Xxxxx shall be obligated to use commercially reasonable efforts, as provided herein and in the applicable Transaction Notice, to place Shares issued by the Company only if and when a Transaction Notice related to such an Agency Transaction has been delivered by Xxxxxxx Xxxxx and accepted by the Company as provided in Section 2 below. (c) Xxxxxxx Xxxxx, as agent in any Agency Transaction, hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Agreement, other than (i) by means of ordinary brokers’ transactions between members of the Exchange that qualify for delivery of a Prospectus in accordance with Rule 153 under the Act and meet the definition of an “at the market offering” under Rule 415(a)(4) under the Act (such transactions are hereinafter referred to as “At the Market Offerings”) and (ii) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and Xxxxxxx Xxxxx in writing. (d) Xxxxxxx Xxxxx will confirm in writing to the Company the number of Shares sold on any Exchange Business Day and the related Gross Sales Price and, if Shares are to be sold in an Agency Transaction in an At The Market Offering, the related Net Sales Price (as each of such terms is defined in Section 2(b) below) promptly after the close of trading on such Exchange Business Day, but in any event no later than the opening of trading on the immediately following Exchange Business Day. (e) If the Company shall default on its obligation to deliver Shares to Xxxxxxx Xxxxx pursuant to the terms of any Agency Transaction or Terms Agreement, the Company shall (i) indemnify and hold Xxxxxxx Xxxxx and its successors and assigns harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) notwithstanding any such default, pay to Xxxxxxx Xxxxx the commission to which it would otherwise be entitled in connection with such sale in accordance with Section 2(b) below. (f) The Company acknowledges and agrees that (i) there can be no assurance that Xxxxxxx Xxxxx will be successful in selling the Shares, (ii) Xxxxxxx Xxxxx shall incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by Xxxxxxx Xxxxx to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (iii) “Exchange” means Xxxxxxx Xxxxx shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as may otherwise be specifically agreed by Xxxxxxx Xxxxx and the New York Stock ExchangeCompany in a Terms Agreement.

Issuance and Sale. (a) Upon the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein and provided the Company provides Partnership and the Subject General Partner provide the applicable Agent with any due diligence materials and information reasonably requested by the Subject such Agent necessary for the Subject such Agent to satisfy its due diligence obligations, on any Exchange Business Day (as defined below) selected by the CompanyPartnership, the Company Partnership and the Subject such Agent shall enter into an agreement in accordance with Section 2 hereof regarding the number of Shares Securities to be placed by the Subject such Agent, as agent, and the manner in which and other terms upon which such placement is to occur (each such transaction being referred to as an “Agency Transaction”). The Company Partnership may also offer to sell the Shares Securities directly to the Subject an Agent, as principal, in which event such parties shall enter into a separate agreement (each, a “Terms Agreement”) in substantially the form of Exhibit A hereto (with such changes thereto as may be agreed upon by the Company Partnership and the Subject such Agent to accommodate a transaction involving more than one Agent), relating to such sale in accordance with Section 2(g) of this Agreement (each such transaction being referred to as a “Principal Transaction”). Whenever the Company determines to sell the Shares directly to an Alternative Agent as principal, it will enter into a separate agreement (each, an “Alternative Terms Agreement”) in substantially the form of Exhibit A to the applicable Alternative Distribution Agreement (with such changes thereto as may be agreed upon by the Company and the Alternative Agent party thereto to accommodate a transaction involving more than one Agent). As used herein, (i) the “Term” shall be the period commencing on the date hereof and ending on the earliest earlier of (x) the date on which the aggregate number Gross Sales Price of Shares Securities issued and sold pursuant to the Distribution Agreements, any Terms Agreements this Agreement and any Alternative Terms Agreements is equal to the Maximum Number Amount and (y) any termination of this Agreement pursuant to Section 8, (ii) an “Exchange Business Day” means any day during the Term that is a trading day for the Exchange other than a day on which trading on the Exchange is scheduled to close prior to its regular weekday closing time, and (iii) “Exchange” means the New York Stock Exchange.

Issuance and Sale. (a) Upon the basis of the representations, representations and warranties and agreements and subject to the terms and conditions set forth herein and provided the Company provides the Subject Agent [Distribution Agent] with any due diligence materials and information reasonably requested by the Subject Agent [Distribution Agent] necessary for the Subject Agent [Distribution Agent] to satisfy its due diligence obligations, on any Exchange Business Day (as defined below) selected by the Company, (A) with respect to purchases by [Distribution Agent] as principal, the Company and the Subject Agent [Distribution Agent] shall enter into an agreement in accordance with Section 2 3 hereof regarding the number of Shares to be purchased by [Distribution Agent] and the manner in which and the other terms upon which such sale is to occur (each such transaction being referred to as a “Principal Transaction”), and (B) with respect to sales by [Distribution Agent] as agent, the Company and [Distribution Agent] shall enter into an agreement in accordance with Section 3 hereof regarding the number of Shares to be placed by the Subject [Distribution Agent, as agent, ] and the manner in which and other terms upon which such placement is to occur (each such transaction being referred to as an “Agency Transaction”). The Company may also offer References herein to sell the Shares directly to the Subject Agenta “Transaction” shall mean a Principal Transaction or an Agency Transaction, as principal, in which event such parties shall enter into a separate agreement (each, a “Terms Agreement”) in substantially the form of Exhibit A hereto (with such changes thereto as context may be agreed upon by the Company and the Subject Agent to accommodate a transaction involving more than one Agent), relating to such sale in accordance with Section 2(g) of this Agreement (each such transaction being referred to as a “Principal Transaction”). Whenever the Company determines to sell the Shares directly to an Alternative Agent as principal, it will enter into a separate agreement (each, an “Alternative Terms Agreement”) in substantially the form of Exhibit A to the applicable Alternative Distribution Agreement (with such changes thereto as may be agreed upon by the Company and the Alternative Agent party thereto to accommodate a transaction involving more than one Agent)require. As used hereinin this Agreement, (i) the “Term” shall be the period commencing on the date hereof and ending on the earliest of (x) [Month] __, 20__, (y) the date on which the aggregate number Maximum Number of Shares have been issued and sold pursuant to the Distribution Agreementsthis Agreement, any Terms Agreements and any Alternative Terms Agreements is equal to the Maximum Number and (yz) any the termination of this Agreement pursuant to Section 89 or 10 (the “Termination Date”), (ii) an “Exchange Business Day” means any day during the Term that is a trading day for the Exchange other than a day on which trading on the Exchange is scheduled to close prior to its regular weekday closing time, and (iii) “Exchange” means the New York [Stock Exchange].

Issuance and Sale. (a) Upon the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein and provided the Company provides the Subject Agent DBS with any all due diligence materials and information reasonably requested by the Subject Agent DBS or its counsel necessary for the Subject Agent DBS to satisfy its due diligence obligations, on any Exchange Business Day (as defined below) selected by the Company, the Company and the Subject Agent shall enter into an agreement deliver a Transaction Notice in accordance with Section 2 hereof regarding the number of Shares to be placed by the Subject Agent, as agent, DBS and the manner in which and other terms upon which such placement is to occur (each such transaction being referred to as an “Agency Transaction”). The Company may also offer to sell the Shares directly to the Subject AgentDBS, as principal, in which event such parties shall enter into a separate agreement (each, a “Terms Agreement”) in substantially the form of Exhibit A hereto (with such changes thereto as may be agreed upon by the Company and the Subject Agent to accommodate a transaction involving more than one Agent)hereto, relating to such sale in accordance with Section 2(g) of this Agreement (each such transaction being referred to as a “Principal Transaction”). Whenever the Company determines to sell the Shares directly to an Alternative Agent as principal, it will enter into a separate agreement (each, an “Alternative Terms Agreement”) in substantially the form of Exhibit A to the applicable Alternative Distribution Agreement (with such changes thereto as may be agreed upon by the Company and the Alternative Agent party thereto to accommodate a transaction involving more than one Agent)Agreements. As used herein, (i) the “Term” shall be the period commencing on the date hereof and ending on the earliest of (x) the date on which the aggregate number Gross Sales Price of Shares issued and sold pursuant to the Distribution Agreements, any Terms Agreements and any Alternative Terms Agreements is equal to the Maximum Number and Amount, (y) any termination of this Agreement pursuant to Section 88 and (z) the expiration of the Registration Statement on May 15, 2021, (ii) an “Exchange Business Day” means any day during the Term that is a trading day for the Exchange other than a day on which trading on the Exchange is scheduled to close prior to its regular weekday closing time, and (iii) “”Exchange” means the New York Stock Exchange, Inc. (b) Subject to the terms and conditions set forth below, the Company appoints DBS as agent in connection with the offer and sale of Shares in any Agency Transaction entered into hereunder. DBS will use commercially reasonable efforts to sell such Shares in accordance with the terms and conditions hereof and of the applicable Transaction Notice (as defined below). Neither the Company nor DBS shall have any obligation to enter into an Agency Transaction. The Company shall be obligated to issue and sell through DBS, and DBS shall be obligated to use its commercially reasonable efforts, as provided herein and in the applicable Transaction Notice, to place Shares issued by the Company only if and when a Transaction Notice related to such an Agency Transaction has been delivered by the Company and accepted by DBS through written notice delivered to the Company or deemed accepted by DBS if DBS begins to sell Shares pursuant to such Transaction Notice, both as provided in Section 2 below. (c) DBS, as agent in any Agency Transaction, hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Agreement, other than (A) by means of ordinary brokers’ transactions between members of the Exchange that qualify for delivery of a Prospectus in accordance with Rule 153 under the Act and meet the definition of an “at the market offering” under Rule 415(a)(4) under the Act (such transactions are hereinafter referred to as “At the Market Offerings”) and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and DBS in writing. (d) If Shares are to be sold in an Agency Transaction in an At The Market Offering, DBS will confirm in writing to the Company the number of Shares sold on any Exchange Business Day and the related Gross Sales Price and Net Sales Price (as each of such terms is defined in Section 2(b) below) no later than the opening of trading on the immediately following Exchange Business Day. (e) If the Company shall default on its obligation to deliver Shares to DBS pursuant to the terms of any Agency Transaction or Terms Agreement, other than as a result of the bad faith or willful misconduct of DBS, each of the Transaction Entities, shall, jointly and severally, (i) indemnify and hold DBS and its successors and assigns harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) notwithstanding any such default, pay to DBS the commission to which it would otherwise be entitled in connection with such sale in accordance with Section 2(b) below. (f) The Company acknowledges and agrees that (i) there can be no assurance that DBS will be successful in selling the Shares, (ii) DBS shall incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by DBS to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (iii) DBS shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as may otherwise be specifically agreed by DBS and the Company in a Terms Agreement.

Issuance and Sale. (a) Upon the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein and provided the Company provides the Subject Agent Agents with any due diligence materials and information reasonably requested by the Subject Agent Agents necessary for the Subject Agent Agents to satisfy its their due diligence obligations, on any Exchange Business Day (as defined below) selected by the Company, the Company may from time to time seek to sell Shares through an Agent that the Company has designated as sales agent to sell Shares pursuant to the terms of this Agreement from time to time (each, a “Designated Agent”), acting as sales agent, and the Subject Company and such Designated Agent shall enter into an agreement in accordance with Section 2 hereof regarding the number of Shares to be placed by the Subject such Designated Agent, as sales agent, and the manner in which and other terms upon which such placement is to occur (each such transaction being referred to as an “Agency Transaction”). The Company may also offer to sell the Shares directly to the Subject Agentone or more Agents, acting as principal, in which event the Company will notify the Agent or Agents, and such parties shall enter into a separate agreement (each, a “Terms Agreement”) in substantially the form of Exhibit A B hereto (with such changes thereto as may be agreed upon by the Company and the Subject such Agent or Agents to accommodate a transaction involving more than one Agentadditional underwriters), relating to such sale in accordance with Section 2(g) of this Agreement (each such transaction being referred to as a “Principal Transaction”). Whenever the Company determines to sell the Shares directly to an Alternative Agent as principal, it will enter into a separate agreement (each, an “Alternative Terms Agreement”) in substantially the form of Exhibit A to the applicable Alternative Distribution Agreement (with such changes thereto as may be agreed upon by the Company and the Alternative Agent party thereto to accommodate a transaction involving more than one Agent). As used herein, (i) the “Term” shall be the period commencing on the date hereof and ending on the earliest earlier of (x) the date on which the aggregate number Gross Sales Price of Shares issued and sold pursuant to the Distribution Agreements, this Agreement and any Terms Agreements and any Alternative Terms Agreements is equal to the Maximum Number Amount and (y) any termination of this Agreement pursuant to Section 8, (ii) an “Exchange Business Day” means any day during the Term that is a trading day for the Exchange other than a day on which trading on the Exchange is scheduled to close prior to its regular weekday closing time, and (iii) “Exchange” means the New York Stock ExchangeNasdaq Global Select Market.

Issuance and Sale. (a) Upon the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein and provided the Company provides the Subject Agent with any due diligence materials and information reasonably requested by the Subject Agent necessary for the Subject Agent to satisfy its due diligence obligations, on any Exchange Business Day (as defined below) selected by the Company, the Company and the Subject Agent shall enter into an agreement in accordance with Section 2 hereof regarding the number of Shares to be placed by the Subject Agent, as agent, and the manner in which and other terms upon which such placement is to occur (each such transaction being referred to as an “Agency Transaction”). The Company may also offer to sell the Shares directly to the Subject Agent, as principal, in which event such parties shall enter into a separate agreement (each, a “Terms Agreement”) in substantially the form of Exhibit A hereto (with such changes thereto as may be agreed upon by the Company and the Subject Agent to accommodate a transaction involving more than one Agent)hereto, relating to such sale in accordance with Section 2(g) of this Agreement (each such transaction being referred to as a “Principal Transaction”). Whenever the Company determines to sell the Shares directly to an Alternative Agent as principalprincipal pursuant to an Alternative Distribution Agreement, it will may enter into a separate agreement (each, an “Alternative Terms Agreement”) in substantially the form of Exhibit A to the applicable such Alternative Distribution Agreement (with such changes thereto as may be agreed upon by the Company and the Alternative Agent party thereto to accommodate a transaction involving more than one Agent)Agreement. As used herein, (i) “Gross Sales Price” means the gross sales price of the Shares sold in any Agency Transaction, in a Principal Transaction or as Forward Hedge Shares, as applicable, (ii) the “Term” shall be the period commencing on the date hereof and ending on the earliest earlier of (x) the date on which the aggregate number Gross Sales Price of Shares offered and/or issued and sold pursuant to the Distribution Agreements, any Terms Agreements and any Alternative Terms Agreements Agreement is equal to the Maximum Number Amount and (y) any termination of this Agreement pursuant to Section 8, (iiiii) an “Exchange Business Day” means any day during the Term that is a trading day for the Exchange other than a day on which trading on the Exchange is scheduled to close prior to its regular weekday closing time, and (iiiiv) “Exchange” means the New York Stock Exchange.

Issuance and Sale. (a) Upon the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein herein, and provided the Company provides the Subject Agent Agent, the Forward Seller and the Forward Purchaser with any due diligence materials and information reasonably requested by the Subject Agent Agent, the Forward Seller and the Forward Purchaser necessary for the Subject Agent Agent, the Forward Seller and the Forward Purchaser, as applicable, to satisfy its due diligence obligations, on any Exchange Business Day (as defined below) selected by the Company, (i) the Company and the Subject Agent shall enter into an agreement in accordance with Section 2 hereof regarding the number of Shares to be placed by the Subject Agent, as agent, and the manner in which and other terms upon which such placement is to occur (each such transaction being referred to as an “Agency Transaction”) and (ii) the Company, the Forward Seller and the Forward Purchaser shall enter into an agreement in accordance with Section 2 with respect to any Forward Related Transaction (as defined in Section 1(b)). The Company may also offer to sell the Shares directly to the Subject Agent, as principal, in which event such parties shall enter into a separate agreement (each, a “Terms Agreement”) in substantially the form of Exhibit A hereto (with such changes thereto as may be agreed upon by the Company and the Subject Agent to accommodate a transaction involving more than one Agent), relating to such sale in accordance with Section 2(g) of this Agreement (each such transaction being referred to as a “Principal Transaction”). Whenever the Company determines to sell the Shares directly to an Alternative Agent as principal, it will enter into a separate agreement (each, an “Alternative Terms Agreement”) in substantially the form of Exhibit A to the applicable Alternative Distribution Agreement (with such changes thereto as may be agreed upon by the Company and the Alternative Agent party thereto to accommodate a transaction involving more than one Agent). As used herein, (i) the “Term” shall be the period commencing on the date hereof and ending on the earliest earlier of (x) the date on which the aggregate number of Shares issued and sold pursuant to the Distribution Agreements, any Terms Agreements and any Alternative Terms Agreements is equal to the Maximum Number and (y) any termination of this Agreement pursuant to Section 8, (ii) an “Exchange Business Day” means any day during the Term that is a trading day for the Exchange (as defined below) other than a day on which trading on the Exchange is scheduled to close prior to its regular weekday closing time, and (iii) “Exchange” means the New York Stock Exchange.

Issuance and Sale. (a) Upon the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein and provided the Company EQR provides the Subject Agent Agents and the Forward Sellers with any due diligence materials and information reasonably requested by the Subject Agent Agents or the Forward Sellers necessary for the Subject Agent Agents and the Forward Sellers to satisfy its their due diligence obligations, on any Exchange Business Trading Day (as defined below) selected by EQR (and, with respect to any Forward, provided no event described in clause (i) or clause (ii) of the Companyproviso contained in the definition of Forward Hedge Selling Period shall have occurred), EQR and the Agent of EQR’s choice (i.e., the Company applicable Agent) (in the case of an Issuance) or the Forward Seller and Forward Purchaser of EQR’s choice (i.e., the Subject Agent applicable Forward Seller and Forward Purchaser) (in the case of a Forward) shall enter into an agreement in accordance with Section 2 hereof regarding which shall at a minimum specify whether it relates to an Issuance or a Forward and shall include the number of Shares Securities to be placed by the Subject Agent, as agent, and the manner in which and other terms upon which such placement is to occur (each such transaction being referred to as an “Agency Transaction”). The Company EQR may also offer to sell the Shares Issuance Securities directly to the Subject applicable Agent, as principal, in which event such parties shall enter into a separate agreement (each, a “Terms Agreement”) in substantially the form of Exhibit A hereto (with such changes thereto as may be agreed upon by the Company EQR and the Subject applicable Agent to accommodate a transaction involving more than one Agentadditional underwriters), relating to such sale in accordance with Section 2(g2(i) of this Agreement (each such transaction being referred to as a “Principal Transaction”). Whenever the Company determines to sell the Shares directly to an Alternative Agent as principal, it will enter into a separate agreement (each, an “Alternative Terms Agreement”) in substantially the form of Exhibit A to the applicable Alternative Distribution Agreement (with such changes thereto as may be agreed upon by the Company and the Alternative Agent party thereto to accommodate a transaction involving more than one Agent). As used herein, (i) the “Term” shall be the period commencing on the date hereof and ending on the earliest earlier of (x) the date on which the aggregate number of Shares Securities issued and sold pursuant to the Distribution Agreements, any Terms Agreements and any Alternative Terms Agreements this Agreement is equal to the Maximum Number Number, and (y) any termination of this Agreement pursuant to Section 8, (ii) an a “Exchange Business Trading Day” means any day during the Term that is a trading day for the Exchange other than a day on which trading on the Exchange is scheduled to close prior to its regular weekday closing time, and (iii) “Exchange” means the New York Stock Exchange.

Issuance and Sale. (a) Upon the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein and provided the Company provides the Subject Agent JPMS with any all due diligence materials and information reasonably requested by the Subject Agent JPMS or its counsel necessary for the Subject Agent JPMS to satisfy its due diligence obligations, on any Exchange Business Day (as defined below) selected by the Company, the Company and the Subject Agent shall enter into an agreement deliver a Transaction Notice in accordance with Section 2 hereof regarding the number of Shares to be placed by the Subject Agent, as agent, JPMS and the manner in which and other terms upon which such placement is to occur (each such transaction being referred to as an “Agency Transaction”). The Company may also offer to sell the Shares directly to the Subject AgentJPMS, as principal, in which event such parties shall enter into a separate agreement (each, a “Terms Agreement”) in substantially the form of Exhibit A hereto (with such changes thereto as may be agreed upon by the Company and the Subject Agent to accommodate a transaction involving more than one Agent)hereto, relating to such sale in accordance with Section 2(g) of this Agreement (each such transaction being referred to as a “Principal Transaction”). Whenever the Company determines to sell the Shares directly to an Alternative Agent as principal, it will enter into a separate agreement (each, an “Alternative Terms Agreement”) in substantially the form of Exhibit A to the applicable Alternative Distribution Agreement (with such changes thereto as may be agreed upon by the Company and the Alternative Agent party thereto to accommodate a transaction involving more than one Agent)Agreements. As used herein, (i) the “Term” shall be the period commencing on the date hereof and ending on the earliest of (x) the date on which the aggregate number Gross Sales Price of Shares issued and sold pursuant to the Distribution Agreements, any Terms Agreements and any Alternative Terms Agreements is equal to the Maximum Number and Amount, (y) any termination of this Agreement pursuant to Section 88 and (z) the expiration of the Registration Statement on May 15, 2021, (ii) an “Exchange Business Day” means any day during the Term that is a trading day for the Exchange other than a day on which trading on the Exchange is scheduled to close prior to its regular weekday closing time, and (iii) “”Exchange” means the New York Stock Exchange, Inc. (b) Subject to the terms and conditions set forth below, the Company appoints JPMS as agent in connection with the offer and sale of Shares in any Agency Transaction entered into hereunder. JPMS will use commercially reasonable efforts to sell such Shares in accordance with the terms and conditions hereof and of the applicable Transaction Notice (as defined below). Neither the Company nor JPMS shall have any obligation to enter into an Agency Transaction. The Company shall be obligated to issue and sell through JPMS, and JPMS shall be obligated to use its commercially reasonable efforts, as provided herein and in the applicable Transaction Notice, to place Shares issued by the Company only if and when a Transaction Notice related to such an Agency Transaction has been delivered by the Company and accepted by JPMS through written notice delivered to the Company or deemed accepted by JPMS if JPMS begins to sell Shares pursuant to such Transaction Notice, both as provided in Section 2 below. (c) JPMS, as agent in any Agency Transaction, hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Agreement, other than (A) by means of ordinary brokers’ transactions between members of the Exchange that qualify for delivery of a Prospectus in accordance with Rule 153 under the Act and meet the definition of an “at the market offering” under Rule 415(a)(4) under the Act (such transactions are hereinafter referred to as “At the Market Offerings”) and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and JPMS in writing. (d) If Shares are to be sold in an Agency Transaction in an At The Market Offering, JPMS will confirm in writing to the Company the number of Shares sold on any Exchange Business Day and the related Gross Sales Price and Net Sales Price (as each of such terms is defined in Section 2(b) below) no later than the opening of trading on the immediately following Exchange Business Day. (e) If the Company shall default on its obligation to deliver Shares to JPMS pursuant to the terms of any Agency Transaction or Terms Agreement, other than as a result of the bad faith or willful misconduct of JPMS, each of the Transaction Entities, shall, jointly and severally, (i) indemnify and hold JPMS and its successors and assigns harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) notwithstanding any such default, pay to JPMS the commission to which it would otherwise be entitled in connection with such sale in accordance with Section 2(b) below. (f) The Company acknowledges and agrees that (i) there can be no assurance that JPMS will be successful in selling the Shares, (ii) JPMS shall incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by JPMS to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (iii) JPMS shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as may otherwise be specifically agreed by JPMS and the Company in a Terms Agreement.

Issuance and Sale. (a) Upon the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein and provided the Company provides Partnership and the Subject General Partner provide the applicable Agent with any due diligence materials and information reasonably requested by the Subject such Agent necessary for the Subject such Agent to satisfy its due diligence obligations, on any Exchange Business Day (as defined below) selected by the CompanyPartnership, the Company Partnership and the Subject such Agent shall may enter into an agreement in accordance with Section 2 hereof regarding the number of Shares Units to be placed by the Subject such Agent, as agent, and the manner in which and other terms upon which such placement is to occur (each such transaction being referred to as an “Agency Transaction”). The Company Partnership may also offer to sell the Shares Units directly to the Subject an Agent, as principal, in which event such parties shall enter into a separate agreement (each, a “Terms Agreement”) in substantially the form of Exhibit A hereto (with such changes thereto as may be agreed upon by the Company Partnership and the Subject such Agent to accommodate a transaction involving more than one Agent), relating to such sale in accordance with Section 2(g) of this Agreement (each such transaction being referred to as a “Principal Transaction”). Whenever the Company determines to sell the Shares directly to an Alternative Agent as principal, it will enter into a separate agreement (each, an “Alternative Terms Agreement”) in substantially the form of Exhibit A to the applicable Alternative Distribution Agreement (with such changes thereto as may be agreed upon by the Company and the Alternative Agent party thereto to accommodate a transaction involving more than one Agent). As used herein, (i) the “Term” shall be the period commencing on the date hereof and ending on the earliest earlier of (x) the date on which the aggregate number Gross Sales Price of Shares Units issued and sold pursuant to the Distribution Agreements, any Terms Agreements this Agreement and any Alternative Terms Agreements is equal to the Maximum Number Amount and (y) any termination of this Agreement pursuant to Section 8, (ii) an “Exchange Business Day” means any day during the Term that is a trading day for the Exchange other than a day on which trading on the Exchange is scheduled to close prior to its regular weekday closing time, and (iii) “Exchange” means the New York Stock Exchange.the

Issuance and Sale. (a) Upon the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein and provided the Company provides the Subject Agent KeyBanc with any all due diligence materials and information reasonably requested by the Subject Agent KeyBanc or its counsel necessary for the Subject Agent KeyBanc to satisfy its due diligence obligations, on any Exchange Business Day (as defined below) selected by the Company, the Company and the Subject Agent shall enter into an agreement deliver a Transaction Notice in accordance with Section 2 hereof regarding the number of Shares to be placed by the Subject Agent, as agent, KeyBanc and the manner in which and other terms upon which such placement is to occur (each such transaction being referred to as an “Agency Transaction”). The Company may also offer to sell the Shares directly to the Subject AgentKeyBanc, as principal, in which event such parties shall enter into a separate agreement (each, a “Terms Agreement”) in substantially the form of Exhibit A hereto (with such changes thereto as may be agreed upon by the Company and the Subject Agent to accommodate a transaction involving more than one Agent)hereto, relating to such sale in accordance with Section 2(g) of this Agreement (each such transaction being referred to as a “Principal Transaction”). Whenever the Company determines to sell the Shares directly to an Alternative Agent as principal, it will enter into a separate agreement (each, an “Alternative Terms Agreement”) in substantially the form of Exhibit A to the applicable Alternative Distribution Agreement (with such changes thereto as may be agreed upon by the Company and the Alternative Agent party thereto to accommodate a transaction involving more than one Agent)Agreements. As used herein, (i) the “Term” shall be the period commencing on the date hereof and ending on the earliest of (x) the date on which the aggregate number Gross Sales Price of Shares issued and sold pursuant to the Distribution Agreements, any Terms Agreements and any Alternative Terms Agreements is equal to the Maximum Number and Amount, (y) any termination of this Agreement pursuant to Section 88 and (z) the expiration of the Registration Statement on May 15, 2021, (ii) an “Exchange Business Day” means any day during the Term that is a trading day for the Exchange other than a day on which trading on the Exchange is scheduled to close prior to its regular weekday closing time, and (iii) “”Exchange” means the New York Stock Exchange, Inc. (b) Subject to the terms and conditions set forth below, the Company appoints KeyBanc as agent in connection with the offer and sale of Shares in any Agency Transaction entered into hereunder. KeyBanc will use commercially reasonable efforts to sell such Shares in accordance with the terms and conditions hereof and of the applicable Transaction Notice (as defined below). Neither the Company nor KeyBanc shall have any obligation to enter into an Agency Transaction. The Company shall be obligated to issue and sell through KeyBanc, and KeyBanc shall be obligated to use its commercially reasonable efforts, as provided herein and in the applicable Transaction Notice, to place Shares issued by the Company only if and when a Transaction Notice related to such an Agency Transaction has been delivered by the Company and accepted by KeyBanc through written notice delivered to the Company or deemed accepted by KeyBanc if KeyBanc begins to sell Shares pursuant to such Transaction Notice, both as provided in Section 2 below. (c) KeyBanc, as agent in any Agency Transaction, hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Agreement, other than (A) by means of ordinary brokers’ transactions between members of the Exchange that qualify for delivery of a Prospectus in accordance with Rule 153 under the Act and meet the definition of an “at the market offering” under Rule 415(a)(4) under the Act (such transactions are hereinafter referred to as “At the Market Offerings”) and (B) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and KeyBanc in writing. (d) If Shares are to be sold in an Agency Transaction in an At The Market Offering, KeyBanc will confirm in writing to the Company the number of Shares sold on any Exchange Business Day and the related Gross Sales Price and Net Sales Price (as each of such terms is defined in Section 2(b) below) no later than the opening of trading on the immediately following Exchange Business Day. (e) If the Company shall default on its obligation to deliver Shares to KeyBanc pursuant to the terms of any Agency Transaction or Terms Agreement, other than as a result of the bad faith or willful misconduct of KeyBanc, each of the Transaction Entities, shall, jointly and severally, (i) indemnify and hold KeyBanc and its successors and assigns harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii) notwithstanding any such default, pay to KeyBanc the commission to which it would otherwise be entitled in connection with such sale in accordance with Section 2(b) below. (f) The Company acknowledges and agrees that (i) there can be no assurance that KeyBanc will be successful in selling the Shares, (ii) KeyBanc shall incur no liability or obligation to the Company or any other person or entity if it does not sell Shares for any reason other than a failure by KeyBanc to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares in accordance with the terms of this Agreement, and (iii) KeyBanc shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as may otherwise be specifically agreed by KeyBanc and the Company in a Terms Agreement.

Issuance and Sale. (a) a. Upon the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein and provided the Company provides the Subject Agent Agents with any due diligence materials and information reasonably requested by the Subject Agent Agents and necessary for the Subject Agent Agents to satisfy its their respective due diligence obligations, on any Exchange Business Day (as defined below) selected by the Company, the Company and the Subject an Agent shall enter into an agreement in accordance with Section 2 hereof regarding the number of Shares to be placed by the Subject such Agent, as agent, and the manner in which and other terms upon which such placement is to occur (each such transaction being referred to as an “Agency Transaction”). On any Exchange Business Day, the Company shall sell Shares through only one of the Agents, but in no event through more than one, and the Company shall give at least one business day prior written notice by email or other method mutually agreed to by the parties to such Agent to notify it of any changes to the Agent through whom the sale of Shares will be effected. For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or security holders of the Company, the Operating Partnership or their respective subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons in which any of Citigroup, Goldman, JPM, Xxxxxx Xxxxxxx or Xxxxxxx Xxxxx is acting for the Company in a capacity other than as Agent under this Agreement. The Company may also offer to sell the Shares directly to the Subject any Agent, as principal, in which event such parties shall enter into a separate agreement (each, a “Terms Agreement”) in substantially the form of Exhibit A hereto (with such changes thereto as may be agreed upon by the Company and the Subject Agent to accommodate a transaction involving more than one Agent)hereto, relating to such sale in accordance with Section 2(g) 2 of this Agreement (each such transaction being referred to as a “Principal Transaction”). Whenever the Company determines to sell the Shares directly to an Alternative Agent as principal, it will enter into a separate agreement (each, an “Alternative Terms Agreement”) in substantially the form of Exhibit A to the applicable Alternative Distribution Agreement (with such changes thereto as may be agreed upon by the Company and the Alternative Agent party thereto to accommodate a transaction involving more than one Agent). As used herein, (i) the “Term” shall be the period commencing on the date hereof and ending on the earliest earlier of (x) the date on which the aggregate number Gross Sales Price (as defined below) of Shares issued and sold pursuant to the Distribution Agreements, any Terms Agreements this Agreement and any Alternative Terms Agreements is equal to the Maximum Number Amount and (y) any termination of this Agreement pursuant to Section 8, (ii) an “Exchange Business Day” means any day during the Term that is a trading day for the Exchange (as defined below) other than a day on which trading on the Exchange is scheduled to close prior to its regular weekday closing time, and (iii) “Exchange” means the New York Stock ExchangeExchange (“NYSE”).

Issuance and Sale. (a) Upon the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein and provided the Company provides Partnership and the Subject General Partner provide the applicable Agent with any due diligence materials and information reasonably requested by the Subject such Agent necessary for the Subject such Agent to satisfy its due diligence obligations, on any Exchange Business Day (as defined below) selected by the CompanyPartnership, the Company Partnership and the Subject such Agent shall enter into an agreement in accordance with Section 2 hereof regarding the number of Shares Units to be placed by the Subject such Agent, as agent, and the manner in which and other terms upon which such placement is to occur (each such transaction being referred to as an “Agency Transaction”). The Company Partnership may also offer to sell the Shares Units directly to the Subject an Agent, as principal, in which event such parties shall enter into a separate agreement (each, a “Terms Agreement”) in substantially the form of Exhibit A hereto (with such changes thereto as may be agreed upon by the Company Partnership and the Subject such Agent to accommodate a transaction involving more than one Agent), relating to such sale in accordance with Section 2(g) of this Agreement (each such transaction being referred to as a “Principal Transaction”). Whenever the Company determines to sell the Shares directly to an Alternative Agent as principal, it will enter into a separate agreement (each, an “Alternative Terms Agreement”) in substantially the form of Exhibit A to the applicable Alternative Distribution Agreement (with such changes thereto as may be agreed upon by the Company and the Alternative Agent party thereto to accommodate a transaction involving more than one Agent). As used herein, (i) the “Term” shall be the period commencing on the date hereof and ending on the earliest earlier of (x) the date on which the aggregate number Gross Sales Price of Shares Units issued and sold pursuant to the Distribution Agreements, any Terms Agreements this Agreement and any Alternative Terms Agreements is equal to the Maximum Number Amount and (y) any termination of this Agreement pursuant to Section 8, (ii) an “Exchange Business Day” means any day during the Term that is a trading day for the Exchange other than a day on which trading on the Exchange is scheduled to close prior to its regular weekday closing time, and (iii) “Exchange” means the New York Stock Exchange.