Common use of Termination; Survival Following Termination Clause in Contracts

Termination; Survival Following Termination. (i) The Company or the Agent may terminate this Agreement prior to the end of the Agency Period, with respect to the issuance and sale of Shares by the Company, and the Selling Stockholder, the Agent or the Forward Purchaser may terminate this Agreement prior to the end of the Agency Period, with respect to the sale of Shares by the Selling Stockholder (including through any Forward), by giving written notice as required by this Agreement, upon ten (10) Trading Days’ notice to the other party; provided that, (A) if the Company or the Selling Stockholder terminates this Agreement after the Agent confirms to the Company any sale of Shares (or the Forward Purchaser confirms to the Selling Stockholder any sale of Forward Hedge Shares), the Company and the Selling Stockholder, as applicable, shall remain obligated to comply with Section 3(b)(v) with respect to such Shares or applicable Forward, as applicable, and (B) Section 2, Section 6, Section 7 and Section 8 shall survive termination of this Agreement. If termination shall occur prior to the Settlement Date for any sale of Shares, such sale shall nevertheless settle in accordance with the terms of this Agreement. (ii) In addition to the survival provision of Section 7(b)(i), the respective indemnities, agreements, representations, warranties and other statements of the Company, of its officers, of the Selling Stockholder, of its officers and of the Agent and the Forward Purchaser set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of the Agent, the Forward Purchaser, the Selling Stockholder or the Company or any of its or their partners, officers or directors or any controlling person, as the case may be, and, anything herein to the contrary notwithstanding, will survive delivery of and payment for the Shares sold hereunder and any termination of this Agreement. No termination shall affect or impair any party’s obligations with respect to any Shares or Forward Hedge Shares sold hereunder prior to such termination (including, in the case of any Forward Hedge Shares, the obligation to enter into the resulting Forward Contract).

Termination; Survival Following Termination. (i) The Company or the Agent Either party may terminate this Agreement prior to the end of the Agency Period, with respect to the issuance and sale of Shares by the Company, and the Selling Stockholder, the Agent or the Forward Purchaser may terminate this Agreement prior to the end of the Agency Period, with respect to the sale of Shares by the Selling Stockholder (including through any Forward), by giving written notice as required by this Agreement, upon ten (10) Trading Days’ notice to the other party; provided that, (A) if the Company or the Selling Stockholder terminates this Agreement after the Agent confirms to the Company any sale of Shares (or the Forward Purchaser confirms to the Selling Stockholder any sale of Forward Hedge Shares), the Company and the Selling Stockholder, as applicable, shall remain obligated to comply with Section ‎Section 3(b)(v) with respect to such Shares or applicable Forward, as applicable, and (B) Section ‎Section 2, Section ‎Section 6, Section ‎Section 7 and Section ‎Section 8 shall survive termination of this Agreement. If termination shall occur prior to the Settlement Date for any sale of Shares, such sale shall nevertheless settle in accordance with the terms of this Agreement. Except as set forth herein, upon termination of this Agreement, the Company shall not have any liability to the Agent for any discount, commission or other compensation with respect to any Shares not otherwise sold by the Agent under this Agreement. (ii) In addition to the survival provision of Section ‎Section 7(b)(i), the respective indemnities, agreements, representations, warranties and other statements of the Company, of its officers, of the Selling Stockholder, of its officers and of the Agent and the Forward Purchaser set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of the Agent, the Forward Purchaser, the Selling Stockholder Agent or the Company or any of its or their partners, officers or directors or any controlling person, as the case may be, and, anything herein to the contrary notwithstanding, will survive delivery of and payment for the Shares sold hereunder and any termination of this Agreement. (iii) The Agent may terminate a Terms Agreement to which it is a party, at any time at or prior to the Settlement Date, (i) if there has been, in such judgment of such Agent, since the time of execution of such Terms Agreement or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package (as defined below) or the Prospectus, any Material Adverse Change, or (ii) if there has occurred any material adverse change in the financial markets in the United States or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of such Agent, impracticable or inadvisable to proceed with the completion of the offering of Shares contemplated by such Terms Agreement or to enforce contracts for the sale of such Shares, or (iii) if trading in any securities of the Company has been suspended or materially limited by the Commission or Nasdaq, or (iv) if trading generally on the NYSE, the NYSE Amex or Nasdaq has been suspended or materially limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by order of the Commission, FINRA or any other governmental entity, or (v) if a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States or with respect to the systems of Clearstream Banking, société anonyme, or Euroclear Bank, S.A./N.V., in Europe, or (vi) if a banking moratorium has been declared by either Federal or New York authorities. No termination shall affect For purposes hereof, the term “General Disclosure Package” means each Free Writing Prospectus, if any, issued prior to the Applicable Time (as defined below), the most recent Prospectus filed with the Commission in accordance with Section 4(a), 4(b) or impair any party’s obligations 4(c) hereof that is distributed to investors prior to the Applicable Time and the number of Shares and the initial offering price per Share, all considered together. For purposes hereof, the term “Applicable Time” means, with respect to any Shares or Forward Hedge Shares sold hereunder prior to such termination (including, in the case offer and sale of any Forward Hedge Shares, the obligation time immediately prior to enter into the resulting Forward Contract)first contract of sale for such Shares, or such other time as agreed by the Company and the Agent.

Termination; Survival Following Termination. (i) The Company or the Agent Either party may terminate this Agreement prior to the end of the Agency Period, with respect to the issuance and sale of Shares by the Company, and the Selling Stockholder, the Agent or the Forward Purchaser may terminate this Agreement prior to the end of the Agency Period, with respect to the sale of Shares by the Selling Stockholder (including through any Forward), by giving written notice as required by this Agreement, upon ten (10) Trading Days’ notice to the other party; provided that, (A) if the Company or the Selling Stockholder terminates this Agreement after the Agent confirms to the Company any sale of Shares (or the Forward Purchaser confirms to the Selling Stockholder any sale of Forward Hedge Shares), the Company and the Selling Stockholder, as applicable, shall remain obligated to comply with Section ‎Section 3(b)(v) with respect to such Shares or applicable Forward, as applicable, and (B) Section ‎Section 2, Section ‎Section 6, Section ‎Section 7 and Section ‎Section 8 shall survive termination of this Agreement. If termination shall occur prior to the Settlement Date for any sale of Shares, such sale shall nevertheless settle in accordance with the terms of this Agreement. (ii) In addition to the survival provision of Section ‎Section 7(b)(i), the respective indemnities, agreements, representations, warranties and other statements of the Company, of its officers, of the Selling Stockholder, of its officers and of the Agent and the Forward Purchaser set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of the Agent, the Forward Purchaser, the Selling Stockholder Agent or the Company or any of its or their partners, officers or directors or any controlling person, as the case may be, and, anything herein to the contrary notwithstanding, will survive delivery of and payment for the Shares sold hereunder and any termination of this Agreement. No termination shall affect . (iii) The Agent may terminate a Terms Agreement to which it is a party, at any time at or impair prior to the Settlement Date, (i) if there has been, in such judgment of the Agent, since the time of execution of such Terms Agreement or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package (as defined below) or the Prospectus, any party’s obligations Material Adverse Effect, or (ii) if there has occurred any material adverse change in the financial markets in the United States or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Agent, impracticable or inadvisable to proceed with the completion of the offering of Shares contemplated by such Terms Agreement or to enforce contracts for the sale of such Shares, or (iii) if trading in any securities of the Company has been suspended or materially limited by the Commission or Nasdaq, or (iv) if trading generally on the NYSE, the NYSE Amex or Nasdaq has been suspended or materially limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by order of the Commission, FINRA or any other Governmental Entity, or (v) if a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States or with respect to any Shares the systems of Clearstream Banking, société anonyme, or Forward Hedge Shares sold hereunder prior to such termination (includingEuroclear Bank, S.A./N.V., in the case of any Forward Hedge SharesEurope, or (vi) if a banking moratorium has been declared by either Federal or New York authorities. For purposes hereof, the obligation to enter into the resulting Forward Contract).term “General

Termination; Survival Following Termination. (i) The Company or the Agent may terminate this Agreement prior to the end of the Agency Period, with respect to the issuance and sale of Shares by the Company, and the Selling StockholderStockholders, the Agent or the Forward Purchaser may terminate this Agreement prior to the end of the Agency Period, with respect to the sale of Shares by the Selling Stockholder Stockholders (including through any Forward), by giving written notice as required by this Agreement, upon ten (10) Trading Days’ notice to the other party; provided that, (A) if the Company or the Selling Stockholder terminates Stockholders terminate this Agreement after the Agent confirms to the Company Selling Stockholders any sale of Shares (or the Forward Purchaser confirms to the Selling Stockholder Stockholders any sale of Forward Hedge Shares), the Company and the Selling Stockholder, as applicable, Stockholders shall remain obligated to comply with Section 3(b)(v) with respect to such Shares or applicable Forward, as applicable, and (B) Section 2, Section 6, Section 7 and Section 8 shall survive termination of this Agreement. If termination shall occur prior to the Settlement Date for any sale of Shares, such sale shall nevertheless settle in accordance with the terms of this Agreement. (ii) In addition to the survival provision of Section 7(b)(i), the respective indemnities, agreements, representations, warranties and other statements of the Company, of its officers, of the Selling StockholderStockholders, of its their officers and of the Agent and the Forward Purchaser set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of the Agent, the Forward Purchaser, the Selling Stockholder Stockholders or the Company or any of its or their partners, officers or directors or any controlling person, as the case may be, and, anything herein to the contrary notwithstanding, will survive delivery of and payment for the Shares sold hereunder and any termination of this Agreement. No termination shall affect or impair any party’s obligations with respect to any Shares or Forward Hedge Shares sold hereunder prior to such termination (including, in the case of any Forward Hedge Shares, the obligation to enter into the resulting Forward Contract).

Termination; Survival Following Termination. (i) Each Agent or Forward Purchaser may terminate this Agreement with respect to itself in its sole discretion at any time upon giving a one Trading Day’s prior written notice to the Company and the Operating Partnership. The Company or and the Agent Operating Partnership may terminate this Agreement prior to the end of the Agency Period, with respect to the issuance and sale of Shares by the Company, and the Selling Stockholder, the Agent or the Forward Purchaser may terminate this Agreement prior to the end of the Agency Period, with respect to the sale of Shares by the Selling Stockholder (including through any Forward), by giving written notice as required by this Agreement, upon ten (10) one Trading Days’ Day’s written notice to the each other party; provided that, (A) if the Company or and the Selling Stockholder terminates Operating Partnership terminate this Agreement after the any Agent confirms to the Company any sale of Shares (or the Forward Purchaser confirms to the Selling Stockholder any sale of Forward Hedge Shares)on an agency basis, the Company and the Selling Stockholder, as applicable, shall remain obligated to comply with the covenants set forth in Section 3(b)(v3 hereof and such covenants shall remain in effect until such Shares are resold or so delivered, as the case may be, (B) with respect to any pending sale to an Agent pursuant to a Terms Agreement and any offering or resale of any Primary Shares purchased or to be purchased by an Agent pursuant to a Terms Agreement, the obligations of the Company, including in respect of compensation of the Agent, shall remain in full force and effect notwithstanding such Shares or applicable Forwardtermination, as applicable, (C) ‎Section 2 and (B) Section 2, Section 6, Section 7 and Section 8 ‎Section 6 shall survive termination of this AgreementAgreement and (D) if a Pricing Supplement required to be executed and delivered by the Forward Purchaser pursuant to Section 3(b)(iv) hereof has not been executed and delivered on or prior to such date, then the provisions of this Agreement as they relate to the applicable Confirmation and the Forward Instruction Notice shall survive such termination until such time as such Pricing Supplement has been executed and delivered pursuant to such Confirmation. If termination shall occur prior to the Settlement Date for any sale of Shares, such sale shall nevertheless settle in accordance with the terms of this Agreement. Without limiting the foregoing, upon any termination of this Agreement by the Company and the Operating Partnership pursuant to this Section 7(b), any outstanding Instruction Notice or Forward Instruction Notice (as the case may be) shall also be terminated to the extent the relevant Agent has not confirmed a sale of Shares thereunder. (ii) In addition to the survival provision of Section ‎Section 7(b)(i), the respective indemnities, agreements, representations, warranties and other statements of the Company, of its officers, each of the Selling StockholderCompany and the Operating Partnership, of its officers and of the Agent and the Forward Purchaser set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of the Agent, the Forward Purchaser, the Selling Stockholder Purchaser or the Company and the Operating Partnership or any of its or their partners, officers or directors or any controlling person, as the case may be, and, anything herein to the contrary notwithstanding, will survive delivery of and payment for the Shares sold hereunder and any termination of this Agreement. No termination shall affect or impair any party’s obligations with respect to any Shares or Forward Hedge Shares sold hereunder prior to such termination (including, in the case of any Forward Hedge Shares, the obligation to enter into the resulting Forward Contract).