Prologis, Inc 8-K, filed Oct 30, 2026
Prologis, Inc. (PLD)
About this 8-K
Prologis, Inc filed this 8-K on October 30, 2026.
Prologis, Inc. entered a new equity distribution agreement on October 30, 2026, replacing its existing “at-the-market” program and allowing common stock sales with an aggregate offering price of up to $5,000,000,000. AI summary
Items reported
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
(Exact name of registrant as specified in charter)
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or other jurisdiction of Incorporation) |
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(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of Each Class | Trading Symbol(s) | Name of Each Exchange on Which Registered | ||||
| Prologis, Inc. | ||||||
| Prologis, L.P. | ||||||
| Prologis, L.P. |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
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| Co-Registrant Written Communications | |
| Co-Registrant Solicitating Materials | |
| Co-Registrant PreCommencement Tender Offer | |
| Co-Registrant PreCommencement Issuer Tender Offer | |
| Co-Registrant Entity Emerging Growth Company | |
| Co-Registrant AddressLine1 | |
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Item 8.01 Other Events.
ATM Program
On October 30, 2026, the Company and Prologis, L.P. (the “Operating Partnership”) entered into an Equity Distribution Agreement (the “Agreement”), which replaces the Company’s existing “at-the-market” program. The Company and the Operating Partnership entered into the Agreement with Academy Securities, Inc., BBVA Securities Inc., BNP Paribas Securities Corp., BNY Mellon Capital Markets, LLC (acting through Academy Securities, Inc., as its sales agent), BofA Securities, Inc., BTIG, LLC, Citigroup Global Markets Inc., Credit Agricole Securities (USA) Inc., Goldman Sachs & Co. LLC, HSBC Securities (USA) Inc., ING Financial Markets LLC, Jefferies LLC, J.P. Morgan Securities LLC, Loop Capital Markets LLC, Mizuho Securities USA LLC, Morgan Stanley & Co. LLC, MUFG Securities Americas Inc., Nomura Securities International, Inc. (acting through BTIG, LLC, as its sales agent), RBC Capital Markets, LLC, Regions Securities LLC, Samuel A. Ramirez & Company, Inc., Santander US Capital Markets LLC, Scotia Capital (USA) Inc., SMBC Nikko Securities America, Inc., TD Securities (USA) LLC, Truist Securities, Inc. and Wells Fargo Securities, LLC (each a “Manager” and, collectively, the “Managers”), and Banco Bilbao Vizcaya Argentaria, S.A., BNP Paribas, Bank of America, N.A., Citibank, N.A., Crédit Agricole Corporate and Investment Bank, Goldman Sachs & Co. LLC, HSBC Bank USA, National Association, Jefferies LLC, JPMorgan Chase Bank, National Association, Mizuho Markets Americas LLC, Morgan Stanley & Co. LLC, MUFG Securities EMEA plc, Nomura Global Financial Products, Inc., Royal Bank of Canada, Regions Securities LLC, Banco Santander, S.A., The Bank of New York Mellon, The Bank of Nova Scotia, The Toronto-Dominion Bank, Truist Bank and Wells Fargo Bank, National Association (each, a “Forward Purchaser” and, collectively, the “Forward Purchasers”), pursuant to which each Manager was appointed to act as the sales agent with respect to the issuance and sale from time to time of shares of the Company’s common stock, par value $0.01 per share, having an aggregate offering price of up to $5,000,000,000 (the “Shares”) in an “at the market” offering as defined in Rule 415 under the Securities Act of 1933, as amended (the “Securities Act”). A copy of the Agreement has been filed as Exhibit 1.1 to this report and is incorporated herein by reference.
The Agreement replaces and supersedes the equity distribution agreement that we entered into with BofA Securities, Inc., BNP Paribas Securities Corp., BNY Mellon Capital Markets, LLC, BTIG, LLC, Citigroup Global Markets Inc., Goldman Sachs & Co. LLC, HSBC Securities (USA) Inc., ING Financial Markets LLC, Jefferies LLC, J.P. Morgan Securities LLC, Mizuho Securities USA LLC, Morgan Stanley & Co. LLC, MUFG Securities Americas Inc., Raymond James & Associates, Inc., Regions Securities LLC, Scotia Capital (USA) Inc., SMBC Nikko Securities America, Inc., SunTrust Robinson Humphrey, Inc., TD Securities (USA) LLC and Wells Fargo Securities, LLC on May 5, 2020.
The Shares will be offered and sold pursuant to the Company’s shelf registration statement on Form S-3 (No. 333-289636) (the “Registration Statement”) that was filed with the U.S. Securities and Exchange Commission (the “SEC”) and became effective on August 15, 2025, and a prospectus supplement, dated October 30, 2026, and the accompanying base prospectus, dated August 15, 2025 (together, the “Prospectus Supplement”). The Company is filing certain exhibits to the Registration Statement as part of this Current Report on Form 8-K. See “Item 9.01 – Financial Statements and Exhibits.” For a more detailed description of the Agreement, see the Prospectus Supplement.
This Current Report on Form 8-K does not constitute an offer to sell, or a solicitation of an offer to buy, any security and shall not constitute an offer, solicitation or sale in any jurisdiction in which such offer, solicitation or sale would be unlawful.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits. The following documents have been filed as exhibits to this report and are incorporated by reference herein as described above.
| Exhibit No. | Description | |
| 1.1 | Equity Distribution Agreement, dated October 30, 2026, among Prologis, Inc., Prologis, L.P., the Managers and the Forward Purchasers. | |
| 5.1 | Opinion of Venable LLP. | |
| 23.1 | Consent of Venable LLP (including in its opinion filed as Exhibit 5.1). | |
| 104 | Cover Page Interactive Data File – the cover page iXBRL tags are embedded within the Inline XBRL document. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrants have duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| PROLOGIS, INC. | ||
| Date: October 30, 2026 | By: | /s/ David Malinger |
| Name: David Malinger | ||
| Title: Senior Vice President and Assistant Secretary | ||
| PROLOGIS, L.P. | ||
| By: Prologis, Inc., its general partner | ||
| Date: October 30, 2026 | By: | /s/ David Malinger |
| Name: David Malinger | ||
| Title: Senior Vice President and Assistant Secretary | ||
Exhibit 1.1
PROLOGIS, INC.
Up to $5,000,000,000 of Shares of Common Stock
(par value $0.01 per share)
Equity Distribution Agreement
October 30, 2026
Academy Securities, Inc. 622 Third Avenue, 12th Floor New York, New York 10017 |
|
| BBVA
Securities Inc. Two Manhattan West 375 9th Ave, 9th Floor New York, New York 10001 |
Banco
Bilbao Vizcaya Argentaria, S.A. Ciudad BBVA, Calle Sauceda nº 28 Edificio Oceanía, Planta 1ªMadrid 28050 |
| BNP Paribas
Securities Corp. 787 Seventh Avenue New York, New York 10019 |
BNP Paribas 787 Seventh Avenue New York, New York 10019 |
BNY Mellon Capital Markets, LLC 240 Greenwich Street New York, New York 10286 |
The Bank of New York Mellon 240 Greenwich Street New York, New York 10286 |
| BofA
Securities, Inc. One Bryant Park New York, New York 10036 |
Bank
of America, N.A. c/o BofA Securities, Inc. One Bryant Park, 8th Floor New York, New York 10036 |
BTIG, LLC 65 East 55th Street New York, New York 10022 |
|
| Citigroup
Global Markets Inc. 388 Greenwich Street New York, New York 10013 |
Citibank,
N.A. 388 Greenwich Street New York, New York 10013 |
| Credit Agricole Securities
(USA) Inc. 1301 Avenue of the Americas New York, New York 10019 |
Crédit Agricole Corporate
and Investment Bank c/o Credit Agricole Securities (USA) Inc. 1301 Avenue of the Americas New York, New York 10019 |
| Goldman
Sachs & Co. LLC 200 West Street New York, New York 10282 |
Goldman
Sachs & Co. LLC 200 West Street New York, New York 10282 |
| HSBC
Securities (USA) Inc. 66 Hudson Boulevard New York, New York 10001 |
HSBC
Bank USA, National Association 66 Hudson Boulevard New York, New York 10001 |
| ING Financial
Markets LLC 1133 Avenue of the Americas New York, New York 10036 |
|
Jefferies LLC 520 Madison Avenue New York, New York 10022
J.P. Morgan Securities LLC 270 Park Avenue New York, New York 10017 |
Jefferies LLC 520 Madison Avenue New York, New York 10022
JPMorgan Chase Bank, National Association 270 Park Avenue New York, New York 10017 |
Loop Capital Markets LLC 425 South Financial Place, Suite 2700 Chicago, Illinois 60605 |
|
| Mizuho
Securities USA LLC 1271 Avenue of the Americas New York, New York 10020 |
Mizuho Markets Americas LLC c/o Mizuho Securities USA LLC 1271 Avenue of the Americas |
| Morgan
Stanley & Co. LLC 1585 Broadway New York, New York 10036 |
Morgan
Stanley & Co. LLC 1585 Broadway New York, New York 10036 |
| MUFG
Securities Americas Inc. 1221 Avenue of the Americas, 5th Floor New York, New York 10020 |
MUFG
Securities EMEA plc Ropemaker Place 25 Ropemaker Street London EC2Y 9AJ United Kingdom |
Nomura Securities International, Inc. 309 West 49th Street New York, New York 10019 |
Nomura Global Financial Products, Inc. 309 West 49th Street New York, New York 10019 |
| RBC Capital Markets, LLC 200 Vesey Street New York, New York 10281-8098 |
Royal Bank of Canada c/o RBC Capital Markets, LLC 200 Vesey Street New York, New York 10281-8098 |
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| Regions
Securities LLC 615 South College Street, Suite 600 Charlotte, North Carolina 28202 |
Regions
Securities LLC 615 South College Street, Suite 600 Charlotte, North Carolina 28202 |
Samuel A. Ramirez & Company, Inc. 14 East 52nd Street, 5th Floor New York, New York 10022 |
|
| Santander
US Capital Markets LLC 437 Madison Avenue New York, New York 10022 |
Banco Santander, S.A. |
Scotia Capital (USA) Inc. 250 Vesey Street, 24th Floor |
The Bank of Nova Scotia 44 King Street West Toronto, Ontario M5H 1H1 Canada |
| SMBC
Nikko Securities America, Inc. 277 Park Avenue New York, New York 10172 |
|
| TD Securities
(USA) LLC 1 Vanderbilt Avenue New York, New York 10017 |
The Toronto-Dominion
Bank c/o TD Securities (USA) LLC 1 Vanderbilt Avenue New York, New York 10017 |
| Truist
Securities, Inc. 50 Hudson Yards, 69th Floor New York, New York 10001 |
Truist
Bank 50 Hudson Yards, 69th Floor New York, New York 10001 |
| Wells
Fargo Securities, LLC 500 West 33rd Street, 14th Floor New York, New York 10001 |
Wells Fargo Bank, National Association |
| As Managers | As Forward Purchasers |
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Ladies and Gentlemen:
Prologis, Inc., a Maryland corporation (the “Company”), and Prologis, L.P., a Delaware limited partnership (the “Operating Partnership”), confirm their agreement (this “Agreement”) with (i) Academy Securities, Inc., BBVA Securities Inc., BNP Paribas Securities Corp., BNY Mellon Capital Markets, LLC (acting through Academy Securities, Inc., as its sales agent), BofA Securities, Inc., BTIG, LLC, Citigroup Global Markets Inc., Credit Agricole Securities (USA) Inc., Goldman Sachs & Co. LLC, HSBC Securities (USA) Inc., ING Financial Markets LLC, Jefferies LLC, J.P. Morgan Securities LLC, Loop Capital Markets LLC, Mizuho Securities USA LLC, Morgan Stanley & Co. LLC, MUFG Securities Americas Inc., Nomura Securities International, Inc. (acting through BTIG, LLC, as its sales agent), RBC Capital Markets, LLC, Regions Securities LLC, Samuel A. Ramirez & Company, Inc., Santander US Capital Markets LLC, Scotia Capital (USA) Inc., SMBC Nikko Securities America, Inc., TD Securities (USA) LLC, Truist Securities, Inc. and Wells Fargo Securities, LLC (in such capacity, each a “Manager” and, collectively, the “Managers”), and (ii) each of Banco Bilbao Vizcaya Argentaria, S.A., BNP Paribas, Bank of America, N.A., Citibank, N.A., Crédit Agricole Corporate and Investment Bank, Goldman Sachs & Co. LLC, HSBC Bank USA, National Association, Jefferies LLC, JPMorgan Chase Bank, National Association, Mizuho Markets Americas LLC, Morgan Stanley & Co. LLC, MUFG Securities EMEA plc, Nomura Global Financial Products, Inc., Royal Bank of Canada, Regions Securities LLC, Banco Santander, S.A., The Bank of New York Mellon, The Bank of Nova Scotia, The Toronto-Dominion Bank, Truist Bank and Wells Fargo Bank, National Association (in such capacity, each a “Forward Purchaser” and, collectively, the “Forward Purchasers”), as follows:
1. Description of Shares.
(a) The Company proposes to (i) issue and sell through or to the Managers (except for BNY Mellon Capital Markets, LLC or Nomura Securities International, Inc.), as sales agents and/or principals, shares (the “Primary Shares”) of the Company’s common stock, par value $0.01 per share (the “Common Stock”), and (ii) instruct any Manager (except for Academy Securities, Inc. or BTIG, LLC), as forward seller, to offer and sell borrowed shares (the “Forward Hedge Shares” and, together with the Primary Shares, the “Shares”), in each case, on the terms and subject to the conditions set forth in this Agreement, any Confirmation (as defined below) and any Terms Agreement (as defined below), as applicable. The parties hereto understand that the aggregate gross sales price of Shares to be sold pursuant to this Agreement and any Terms Agreement or Confirmation shall not exceed $5,000,000,000.
(b) For purposes of selling the Primary Shares through the Managers, the Company hereby appoints the Managers (other than BNY Mellon Capital Markets, LLC and Nomura Securities International, Inc.) as exclusive agents of the Company for the purpose of soliciting purchases of the Primary Shares from the Company pursuant to this Agreement, and each such Manager agrees to use its reasonable efforts to solicit purchases of the Shares on the terms and subject to the conditions stated herein. The Company and the Operating Partnership agree that whenever the Company determines to sell the Primary Shares directly to a Manager as principal, they will enter into a separate agreement (each, a “Terms Agreement”) in substantially the form of Annex I hereto, relating to such sale in accordance with Section 3(l) of this Agreement; provided, however, that BNY Mellon Capital Markets, LLC and Nomura Securities International, Inc. shall not act as principals. Certain terms used herein are defined in Section 20 hereof.
(c) The Company may also enter into one or more non-contingent forward stock purchase transactions (each, a “Non-Contingent Forward Transaction” and, collectively, the “Non-Contingent Forward Transactions”) with any of the Forward Purchasers or one or more contingent forward stock purchase transactions (each, a “Contingent Forward Transaction” and, collectively, the “Contingent Forward Transactions”) with any of the Forward Purchasers as set forth, for Non-Contingent Forward Transactions, in forward sale confirmations, each substantially in the form set forth in Annex II hereto, and for Contingent Forward Transactions, in forward confirmations, each substantially in the form set forth in Annex III hereto (each, a “Confirmation” and, collectively, the “Confirmations”). In connection therewith, the Company and each Manager understand that the Designated Manager, or an affiliate thereof, will attempt to borrow and then offer and sell, as forward seller for the applicable Forward Purchaser, the applicable Forward Hedge Shares for sale on the terms set forth under this Agreement. Any shares of Common Stock to be delivered by the Company to any Forward Purchaser in settlement of all or any portion of the Company’s obligations under any Confirmation are hereinafter sometimes called “Confirmation Shares.”
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(d) For purposes of clarity, it is understood and agreed by the parties hereto that, if Forward Hedge Shares are offered or sold through any Manager as forward seller for the respective Forward Purchaser, then such Manager, as forward seller, shall be acting as sales agent for such Forward Purchaser with respect to the offering and sale of such Forward Hedge Shares, and, except in cases where this Agreement expressly refers to a Designated Manager acting as sales agent for the Company or as forward seller or unless otherwise expressly stated or the context otherwise requires, references in this Agreement to a Designated Manager acting as sales agent shall be deemed to apply to a Designated Manager both or either sales agent for the Company and/or as forward seller, mutatis mutandis, except that BNY Mellon Capital Markets, LLC and Nomura Securities International, Inc. are not acting as sales agents for the Company and Academy Securities, Inc. and BTIG, LLC are not acting as forward sellers. Unless the context requires otherwise, references herein to the “related,” “relevant” or “applicable” Forward Purchaser mean, with respect to any Designated Manager, the affiliate of such Designated Manager that is acting as a Forward Purchaser or, if applicable, such Manager acting as a Forward Purchaser.
2. Representations and Warranties. Each of the Company and the Operating Partnership, jointly and severally, represents and warrants to, and agrees with, each Manager and each Forward Purchaser, at the Execution Time and on each such time the following representations and warranties are repeated or deemed to be made pursuant to this Agreement, as set forth below.
(a) The Company meets the requirements for use of Form S-3 under the Act and has prepared and filed with the Commission an automatic shelf registration statement, as defined in Rule 405 (File Number 333-289636) on Form S-3, including a related Base Prospectus, for registration under the Act of the offering and sale of the Shares and other securities of the Company. Such Registration Statement, including any amendments thereto filed prior to the Execution Time or prior to any such time this representation is repeated or deemed to be made, became effective upon filing and no stop order suspending the effectiveness of the Registration Statement has been issued under the Act and no proceedings for that purpose pursuant to Section 8A of the Act have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission, and any request on the part of the Commission for additional or supplemental information has been complied with. The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Act objecting to use of the automatic shelf registration statement form. The Company shall file with the Commission the Prospectus Supplement relating to the Shares in accordance with Rule 424(b) promptly after the Execution Time (but in any event in the time period prescribed thereby). As filed, the Prospectus will contain all information required by the Act and the rules thereunder, and, except to the extent the Managers shall agree in writing to a modification, shall be in all substantive respects in the form furnished to the Managers prior to the Execution Time or prior to any such time this representation is repeated or deemed to be made. The Registration Statement, at the Execution Time, each such time this representation is repeated or deemed to be made, and at all times during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 or any similar rule) in connection with any offer or sale of Shares, meets the requirements set forth in Rule 415(a)(1)(x). The initial Effective Date of the Registration Statement was not earlier than the date three years before the Execution Time. Any reference herein to the Registration Statement, the Base Prospectus, the Prospectus Supplement, any Interim Prospectus Supplement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the Base Prospectus, the Prospectus Supplement, any Interim Prospectus Supplement or the Prospectus, as the case may be; and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus, the Prospectus Supplement, any Interim Prospectus Supplement or the Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Base Prospectus, the Prospectus Supplement, any Interim Prospectus Supplement or the Prospectus, as the case may be, deemed to be incorporated therein by reference. Notwithstanding the foregoing, the representations and warranties in this subsection shall not apply to (i) that part of the Registration Statement which constitutes the Statement of Eligibility on Form T–1 of the trustee under the Trust Indenture Act (the “Form T-1”) and (ii) statements in or omissions from the Registration Statement or any post-effective amendment or the Prospectus or any amendments or supplements thereto, made in reliance upon and in conformity with information furnished to the Company in writing by the Managers relating to the Managers expressly for use therein, it being understood and agreed that the only such information furnished by any Manager consists of the information described as such in Section 7(b) hereof (the “Manager Information”).
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(b) To the extent that the Registration Statement is not available for the sales of the Shares as contemplated by this Agreement or the Company is not a “well-known seasoned issuer” as defined in Rule 405 or otherwise is unable to make the representations set forth in Section 2(f) at any time when such representations are required, the Company shall file a new registration statement with respect to any additional shares of Common Stock necessary to complete such sales of the Shares and shall cause such registration statement to become effective as promptly as practicable. After the effectiveness of any such registration statement, all references to “Registration Statement” included in this Agreement shall be deemed to include such new registration statement, including all documents incorporated by reference therein pursuant to Item 12 of Form S-3, and all references to “Base Prospectus” included in this Agreement shall be deemed to include the final form of prospectus, including all documents incorporated therein by reference, included in any such registration statement at the time such registration statement became effective.
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(c) On each Effective Date, at the Execution Time, at each Applicable Time, at each Settlement Date, at each Time of Delivery and at all times during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 or any similar rule) in connection with any offer or sale of Shares, the Registration Statement complied and will comply in all material respects with the applicable requirements of the Act and the rules thereunder and did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and on the date of any filing pursuant to Rule 424(b), at the Execution Time, at each Applicable Time, on each Settlement Date, at each Time of Delivery and at all times during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 or any similar rule) in connection with any offer or sale of Shares, the Prospectus (together with any supplement thereto) complied and will comply in all material respects with the applicable requirements of the Act and the rules thereunder and did not and will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to the information contained in or omitted from the Registration Statement or the Prospectus (or any supplement thereto) in reliance upon and in conformity with any Manager Information.
(d) At the Execution Time, at each Applicable Time, at each Settlement Date and each Time of Delivery, the Disclosure Package did not and will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with any Manager Information.
(e) The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus (i) at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder and (ii) when read together with the other information in the Prospectus and the Disclosure Package at any Applicable Time and when read together with the other information in the Prospectus and at the date of the Prospectus and at any Settlement Date or Time of Delivery, will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Sections 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Shares in reliance on the exemption in Rule 163, and (iv) at the Execution Time, the Company was or is (as the case may be) a “well-known seasoned issuer” as defined in Rule 405. The Company agrees to pay the fees required by the Commission relating to the Shares within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
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(g) (i) At the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Shares and (ii) as of the Execution Time and on each such time this representation is repeated or deemed to be made (with such date being used as the determination date for purposes of this clause (ii)), the Company was not and is not an Ineligible Issuer, without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible Issuer.
(h) Each Issuer Free Writing Prospectus does not and will not include any information that conflicts with the information contained in the Registration Statement, including any document incorporated therein by reference and any prospectus supplement deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with any Manager Information.
(i) The Registration Statement is not the subject of a pending proceeding or examination under Section 8(d) or 8(e) of the Act, and the Company is not the subject of a pending proceeding under Section 8A of the Act in connection with the offering of the Shares.
(j) The Common Stock is an “actively-traded security” exempted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
(k) The Company has not entered into any other sales agency agreements or other similar arrangements with any agent or any other representative in respect of at the market offerings of the Shares in accordance with Rule 415(a)(4).
(l) Neither the Company nor any of its subsidiaries has or will (i) take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares or (ii) sell, bid for, purchase or pay any person (other than as contemplated by this Agreement) any compensation for soliciting purchases of the Shares.
(m) Other than the Managers, there is no broker, finder or other party that is entitled to receive from the Company any brokerage or finder’s fee or other fee or commission as a result of any transactions contemplated by this Agreement.
(n) This Agreement has been, and any applicable Terms Agreement will be, duly authorized, executed and delivered by the Company and the Operating Partnership. Each Confirmation has been duly authorized and, when executed and delivered by the Company, will constitute a valid and binding obligation of the Company, enforceable in accordance with its terms.
(o) The Primary Shares have been duly authorized, and when issued, delivered and paid for in accordance with this Agreement and any applicable Terms Agreement, will be validly issued, fully paid and non-assessable, free and clear of any lien, charge or encumbrance, and the issuance of such Primary Shares will not be subject to any preemptive or similar rights. The Confirmation Shares have been duly authorized and reserved for issuance under any Confirmation. When Confirmation Shares are issued and delivered by the Company to the applicable Forward Purchaser pursuant to the applicable Confirmation, such Confirmation Shares will be validly issued, fully paid and non-assessable, and the issuance thereof will not be subject to the preemptive or other similar rights.
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(p) The Shares conform in all material respects to the descriptions thereof contained in the Registration Statement and the Shares will conform to the description thereof contained in the Disclosure Package and the Prospectus as amended or supplemented.
(q) Except as otherwise disclosed in the Disclosure Package and the Prospectus, subsequent to the respective dates as of which information is given in the Disclosure Package and the Prospectus: (i) there has been no material adverse change, or any development involving the Company, the Operating Partnership or any of their respective subsidiaries that could reasonably be expected to result in a material adverse change, in the condition, financial or otherwise, or in the earnings, business, operations or prospects, whether or not arising from transactions in the ordinary course of business, of the Company, the Operating Partnership or any of their respective subsidiaries, considered as one entity (any such change is called a “Material Adverse Change”); (ii) the Company, the Operating Partnership and their respective subsidiaries, considered as one entity, have not incurred any material liability or obligation, indirect, direct or contingent, not in the ordinary course of business or entered into any material transaction or agreement not in the ordinary course of business; and (iii) except for regular quarterly dividends on the Common Stock or shares of preferred stock or shares in amounts per share that are consistent with past practice or any special dividends on the Common Stock that are the subject of a press release (whether in cash, Common Stock or a combination of both), there has been no dividend or distribution of any kind declared, paid or made by the Company or the Operating Partnership or, except for dividends paid to the Company, the Operating Partnership or their respective subsidiaries, any subsidiaries of the Company and the Operating Partnership on any class of capital stock or shares or repurchase or redemption by the Company, the Operating Partnership or any of their respective subsidiaries of any class of capital stock or shares.
(r) (i) KPMG LLP, who have expressed their opinion with respect to the audited financial statements of (1) the Company and its consolidated subsidiaries and (2) the Operating Partnership and its consolidated subsidiaries, all incorporated by reference in the Registration Statement and the Prospectus, are independent public or certified public accountants within the meaning of Regulation S-X under the Act and the Exchange Act with respect to the Company and its consolidated subsidiaries and the Operating Partnership and a registered public accounting firm within the meaning of the Sarbanes-Oxley Act of 2002, as amended and (ii) if applicable, the accountants who have expressed their opinions with respect to any audited financial statements other than those of the Company or one of its subsidiaries, that are incorporated by reference in the Registration Statement and the Prospectus are independent public or certified public accountants within the meaning of Regulation S-X under the Act and the Exchange Act with respect to the related entity, and a registered public accounting firm within the meaning of the Sarbanes-Oxley Act of 2002, as amended.
(s) The financial statements of the Company and the Operating Partnership, together with the related notes thereto and related schedules incorporated by reference in the Registration Statement and the Prospectus, present fairly the consolidated financial position of the Company, or the consolidated financial position of the Operating Partnership, as applicable, as of and at the dates indicated and the results of their respective operations and cash flows for the periods specified. Such financial statements and related schedules have been prepared in conformity with generally accepted accounting principles as applied in the United States applied on a consistent basis throughout the periods involved, except as may be expressly stated in the related notes thereto. The summary financial information, if any, included in the Prospectus present fairly in all material respects the information shown therein and have been compiled on a basis consistent with that of the financial statements incorporated by reference in the Registration Statement and the Prospectus. In addition, if applicable, any proforma condensed combined financial statements of the Company and the Operating Partnership and the related notes thereto incorporated by reference in the Registration Statement and the Prospectus present fairly, in all material respects, the information shown therein, have been prepared in accordance with the Commission’s rules and guidelines with respect to pro forma financial statements and have been properly compiled on the bases described therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein. Except as included or incorporated by reference in the Registration Statement or Prospectus, no other financial statements or supporting schedules are required to be included or incorporated by reference in the Registration Statement or the Prospectus.
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(t) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland and has all power and authority necessary to own, lease and operate its properties and to conduct its business as described in the Disclosure Package and the Prospectus, and to enter into and perform its obligations under this Agreement and any applicable Terms Agreement and any Confirmation. The Company is duly qualified to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except for such jurisdictions where the failure to so qualify or to be in good standing would not, individually or in the aggregate, result in a Material Adverse Change. The Company is the sole general partner (in such capacity, the “General Partner”) of the Operating Partnership and owns the percentage interest in the Operating Partnership as set forth or incorporated by reference in the Disclosure Package and the Prospectus.
(u) The Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware, with partnership power and authority to own, lease and operate its properties, to conduct the business in which it is engaged or proposes to engage as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. The Operating Partnership is duly qualified to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except for such jurisdictions where the failure to so qualify or to be in good standing would not, individually or in the aggregate, result in a Material Adverse Change.
(v) Each subsidiary and joint venture of the Company listed on Schedule II hereto (collectively, the “Significant Subsidiaries”) has been duly incorporated or organized, as the case may be, and is validly existing as a corporation, trust, partnership, limited liability company or other entity, as the case may be, and (except as to any general partnership) in good standing under the laws of the jurisdiction of its incorporation or organization, as the case may be, and has the power (corporate or other) and authority to own, lease and operate its properties and to conduct its business as described in the Disclosure Package and the Prospectus. Each Significant Subsidiary is duly qualified as a foreign corporation, trust, partnership, limited liability company or other entity to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except for such jurisdictions where the failure to so qualify or to be in good standing would not, individually or in the aggregate, result in a Material Adverse Change. All of the issued and outstanding capital stock and other equity interests of each Significant Subsidiary have been duly authorized and validly issued, and are fully paid and (except for general partnership interests and directors’ qualifying shares) non-assessable; all shares of outstanding capital stock and other equity interests of each Significant Subsidiary held by the Company, directly or through subsidiaries, are owned free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim, except for the pledge of such capital stock or other interests to secure borrowings of the Company or one of its wholly owned subsidiaries.
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(w) All of the issued and outstanding shares of capital stock of the Company have been duly authorized and validly issued, are fully paid and non-assessable and have been issued in compliance with federal and state securities laws.
(x) There are no outstanding options to purchase, or any rights or warrants to subscribe for, or any securities or obligations convertible into, or any contracts or commitments to issue or sell, any shares of Common Stock, any shares of capital stock of any subsidiary, or any such warrants, convertible securities or obligations, except as set forth in the Disclosure Package and the Prospectus and except for options granted under, or contracts or commitments pursuant to, the previous or currently existing option and other similar officer, director, trustee or employee benefit plans of the Company, the Operating Partnership or any of their respective subsidiaries; and there are no contracts, commitments, agreements, arrangements, understandings or undertakings of any kind to which the Company or the Operating Partnership is a party, or by which either of them is bound, granting to any person the right to require either of the Company or the Company and the Operating Partnership to file a registration statement under the Act with respect to any securities of the Company or requiring the Company to include such securities with the Shares registered pursuant to any registration statement, except as set forth in the Disclosure Package and the Prospectus.
(y) All of the issued and outstanding partnership units of the Operating Partnership (the “Units”) have been duly and validly authorized and issued and conform to the description thereof contained or incorporated by reference in the Disclosure Package and the Prospectus. The Units owned by the Company are owned directly by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(z) None of the Company, the Operating Partnership nor any of their respective subsidiaries is in violation of its charter or by-laws or other similar constitutive documents, except, in the case of subsidiaries of the Company and the Operating Partnership, for such violations as would not, individually or in the aggregate, result in a Material Adverse Change. Neither the Company, the Operating Partnership nor any of their respective subsidiaries is in default (or, with the giving of notice or lapse of time or both, would be in default) (“Default”) under any indenture, mortgage, loan or credit agreement, note, contract, franchise, lease or other instrument to which the Company, the Operating Partnership or any of their respective subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any of their respective subsidiaries is subject (each, an “Existing Instrument”), except for such Defaults as would not, individually or in the aggregate, result in a Material Adverse Change. The Company’s and the Operating Partnership’s execution, delivery and performance of this Agreement or any applicable Terms Agreement or Confirmation, the issuance, sale and/or delivery of the Shares or Confirmation Shares, as applicable, and the consummation of the transactions contemplated hereby and by the Disclosure Package and the Prospectus (i) have been duly authorized by all necessary corporate or other action, as the case may be, and will not result in any violation of the provisions of the charter or by-laws or other similar constitutive documents of the Company, the Operating Partnership or any of their respective subsidiaries, except in the case of subsidiaries of the Company that are not Significant Subsidiaries, for such violations as would not, individually or in the aggregate, materially adversely affect the Company’s and the Operating Partnership’s ability to consummate the transactions contemplated by this Agreement or any applicable Terms Agreement or Confirmation, (ii) will not conflict with or constitute a breach of, or Default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any of their respective subsidiaries pursuant to, or require the consent of any other party to, any Existing Instrument, except for such conflicts, breaches, Defaults, liens, charges or encumbrances as would not, individually or in the aggregate, result in a Material Adverse Change or materially adversely affect the Company’s and the Operating Partnership’s ability to consummate the transactions contemplated by this Agreement or any applicable Terms Agreement or Confirmation and (iii) will not result in any violation of any law, administrative regulation or administrative or court decree applicable to the Company, the Operating Partnership or any of their respective subsidiaries, except for such violation as would not, individually or in the aggregate, result in a Material Adverse Change or materially adversely affect the Company’s and the Operating Partnership’s ability to consummate the transactions contemplated by this Agreement or any applicable Terms Agreement or Confirmation. No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental or regulatory authority or agency, is required for the Company’s or the Operating Partnership’s execution, delivery and performance of this Agreement or any applicable Terms Agreement or Confirmation, the issuance, sale and/or delivery of the Shares or Confirmation Shares, as applicable, or consummation of the transactions contemplated hereby and by the Disclosure Package and the Prospectus, except for the filing of the Prospectus Supplement as contemplated by Section 2(a) and such as have been obtained or made by the Company and are in full force and effect under the Act and applicable state securities or blue sky laws and from the Financial Industry Regulatory Authority (“FINRA”) or the failure of which to obtain would not have a material adverse effect on the consummation of the transactions contemplated by this Agreement or any applicable Terms Agreement or Confirmation.
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(aa) Except as otherwise disclosed in the Disclosure Package and the Prospectus, there are no legal or governmental actions, suits or proceedings pending or, to the best of the Company’s and the Operating Partnership’s knowledge, threatened (i) against or affecting the Company, the Operating Partnership or any of their respective subsidiaries, (ii) which has as the subject thereof any officer or director of, or property owned or leased by, the Company, the Operating Partnership or any of their respective subsidiaries or (iii) relating to environmental or discrimination matters, where in any such case (A) there is a reasonable possibility that such action, suit or proceeding might be determined adversely to the Company, the Operating Partnership or any such subsidiary and (B) any such action, suit or proceeding, if so determined adversely, would reasonably be expected to result in a Material Adverse Change or materially adversely affect the consummation of the transactions contemplated by this Agreement or any applicable Terms Agreement or Confirmation.
(bb) No material labor dispute with the employees of the Company, the Operating Partnership or any of their respective subsidiaries exists or, to the best of the Company’s and the Operating Partnership’s knowledge, is threatened or imminent, except for such disputes as would not, individually or in the aggregate, result in a Material Adverse Change.
(cc) The Company, the Operating Partnership and their respective subsidiaries own or possess sufficient trademarks, trade names, patent rights, copyrights, domain names, licenses, approvals, trade secrets and other similar rights (collectively, “Intellectual Property Rights”) reasonably necessary to conduct their businesses as now conducted, except as would not result in a Material Adverse Change; and the expected expiration of any of such Intellectual Property Rights would not result in a Material Adverse Change. None of the Company, the Operating Partnership nor any of their respective subsidiaries has received any notice of infringement or conflict with asserted Intellectual Property Rights of others, which infringement or conflict, if the subject of an unfavorable decision, would result in a Material Adverse Change. Neither the Company nor the Operating Partnership is a party to or bound by any options, licenses or agreements with respect to the Intellectual Property Rights of any other person or entity that are required to be set forth in the Registration Statement or the Prospectus, and that are not described in all material respects in such documents. None of the technology employed by the Company or the Operating Partnership has been obtained or is being used by the Company or the Operating Partnership in violation of any contractual obligation binding on the Company and the Operating Partnership or, to the knowledge of the Company and the Operating Partnership, any of their officers, directors or employees or otherwise in violation of the rights of any persons, except for such violations as would not, individually or in the aggregate, result in a Material Adverse Change.
(dd) The Company, the Operating Partnership and their respective subsidiaries possess such valid and current certificates, authorizations, permits, licenses, approvals, consents and other authorizations issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct their respective businesses, except for such certificates, authorizations, permits, licenses, approvals, consents and other authorizations as would not, individually or in the aggregate, result in a Material Adverse Change, and none of the Company, the Operating Partnership nor any of their respective subsidiaries has received any notice of proceedings relating to the revocation or modification of, or non-compliance with, any such certificate, authorization, permit, license, approval, consent or other authorization which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could result in a Material Adverse Change.
(ee) Except as otherwise disclosed in the Disclosure Package and the Prospectus, the Company, the Operating Partnership and their respective subsidiaries have good and marketable title to all the properties and assets reflected as owned in the financial statements referred to in Section 2(s) above (or elsewhere in the Disclosure Package and the Prospectus), in each case free and clear of any security interests, mortgages, liens, encumbrances, equities, claims and other defects, except such as do not materially and adversely affect the value of such property and do not materially interfere with the use made or proposed to be made of such property by the Company, the Operating Partnership or such subsidiary. The real property, improvements, equipment and personal property held under lease by the Company, the Operating Partnership or any of their respective subsidiaries are held under valid and enforceable leases, with such exceptions as are not material and do not materially interfere with the use made or proposed to be made of such real property, improvements, equipment or personal property by the Company, the Operating Partnership or their respective subsidiaries.
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(ff) The Company, the Operating Partnership and their respective subsidiaries have filed all material federal, state and foreign income and franchise tax returns or have properly requested extensions thereof and have paid all taxes required to be paid by any of them and, if due and payable, any related or similar assessment, fine or penalty levied against any of them except as may be being contested in good faith and by appropriate proceedings. Each of the Company and the Operating Partnership has made adequate charges, accruals and reserves in the applicable financial statements referred to in Section 2(s) above in respect of all federal, state and foreign income and franchise taxes for all periods as to which the tax liability of the Company, the Operating Partnership or any of their respective subsidiaries has not been finally determined. With respect to all tax periods in respect of which the Internal Revenue Service is or will be entitled to any claim, the Company has met the requirements for qualification as a real estate investment trust under Sections 856 through 860 of the Internal Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder (the “Internal Revenue Code”) and the Company’s present and contemplated organizational ownership, method of operation, assets and income are such that the Company will continue to meet such requirements.
(gg) Neither the Company nor the Operating Partnership is, and upon the issuance and sale of the Shares as contemplated by this Agreement and the Confirmations and the application of the proceeds as described in the Disclosure Package and the Prospectus under “Use of Proceeds” will be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(hh) Each of the Company, the Operating Partnership and their respective subsidiaries taken as a whole carry or are covered by insurance in such amounts covering such risks as are generally deemed adequate and customary for their businesses. Each of the Company and the Operating Partnership has no reason to believe that it or any of their respective subsidiaries will not be able (i) to renew its existing insurance coverage as and when such policies expire or (ii) to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not result in a Material Adverse Change.
(ii) None of the Company, the Operating Partnership nor any of their respective subsidiaries nor, to the knowledge of the Company and the Operating Partnership, any director, officer, agent, employee or affiliate of the Company, the Operating Partnership or any of their respective subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of (i) the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA or (ii) the Bribery Act 2010, as amended, of the United Kingdom (the “UK”); and the Company, the Operating Partnership, their respective subsidiaries and, to the knowledge of the Company and the Operating Partnership their respective affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures reasonably designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
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(jj) The operations of the Company, the Operating Partnership and their respective subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements and the money laundering statutes and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company, the Operating Partnership or any of their respective subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company and the Operating Partnership, threatened.
(kk) Neither the Company, the Operating Partnership nor any of their respective subsidiaries nor, to the knowledge of the Company and the Operating Partnership, any director, officer, agent, employee or affiliate of the Company, the Operating Partnership or any of their respective subsidiaries is currently subject to any sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company and the Operating Partnership will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds, to any subsidiary, joint venture partner or other person or entity for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC. Each of Banco Bilbao Vizcaya Argentaria, S.A., Banco Santander, S.A., Crédit Agricole Corporate and Investment Bank and MUFG Securities EMEA plc agrees and confirms that it is entitled to the benefit of the representation, warranty and agreement contained in this Section 2(kk) to the extent that those provisions would not result in a violation of, or conflict with, Council Regulation (EC) No 2271/96, as amended, and/or any law or regulation implementing such Regulation in any member state of the European Union or, as applicable, Council Regulation (EC) No 2271/96 as it forms part of domestic law in the United Kingdom and/or any associated and applicable United Kingdom law, instrument or regulation related thereto.
(ll) Except as would not, individually or in the aggregate, result in a Material Adverse Change (i) none of the Company, the Operating Partnership nor any of their respective subsidiaries is in violation of any federal, state, local or foreign law or regulation relating to pollution or protection of human health or the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including without limitation, laws and regulations relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum and petroleum products (collectively, “Materials of Environmental Concern”), or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Materials of Environmental Concern (collectively, “Environmental Laws”), which violation includes, but is not limited to, noncompliance with any permits or other governmental authorizations required for the operation of the business of the Company, the Operating Partnership or their respective subsidiaries under applicable Environmental Laws, or noncompliance with the terms and conditions thereof, nor has any of the Company, the Operating Partnership or their respective subsidiaries received any written communication, whether from a governmental authority, citizens group, employee or otherwise, that alleges that the Company, the Operating Partnership or any of their respective subsidiaries is in violation of any Environmental Law; (ii) there is no claim, action or cause of action filed with a court or governmental authority with respect to which the Company, the Operating Partnership or any of their respective subsidiaries has received written notice, no investigation with respect to which the Company or the Operating Partnership has received written notice, and no written notice by any person or entity alleging potential liability for investigatory costs, cleanup costs, governmental responses costs, natural resources damages, property damages, personal injuries, attorneys’ fees or penalties arising out of, based on or resulting from the presence, or release into the environment, of any Material of Environmental Concern at any location owned, leased or operated by the Company, the Operating Partnership or any of their respective subsidiaries, now or in the past (collectively, “Environmental Claims”), pending or, to the best of the Company’s and the Operating Partnership’s knowledge, threatened against the Company, the Operating Partnership or any of their respective subsidiaries or any person or entity whose liability for any Environmental Claim the Company, the Operating Partnership or any of their respective subsidiaries has retained or assumed either contractually or by operation of law; and (iii) to the best of the Company’s and the Operating Partnership’s knowledge, there are no past or present actions, activities, circumstances, conditions, events or incidents, including, without limitation, the release, emission, discharge, presence or disposal of any Material of Environmental Concern, that reasonably could result in a violation of any Environmental Law or form the basis of a potential Environmental Claim against the Company, the Operating Partnership or any of their respective subsidiaries or against any person or entity whose liability for any Environmental Claim the Company, the Operating Partnership or any of their respective subsidiaries has retained or assumed either contractually or by operation of law.
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(mm) The Company, the Operating Partnership and their respective subsidiaries and any “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, and the regulations and published interpretations thereunder (collectively, “ERISA”)) established or maintained by the Company, the Operating Partnership and their respective subsidiaries or their “ERISA Affiliates” (as defined below) are in compliance in all material respects with ERISA. “ERISA Affiliate” means, with respect to any person or any subsidiary of such person, any member of any group of organizations described in Sections 414(b), (c), (m) or (o) of the Internal Revenue Code, of which such person or such subsidiary is a member. No “reportable event” (as defined under ERISA) has occurred or is reasonably expected to occur with respect to any “employee benefit plan” established or maintained by the Company, the Operating Partnership and their respective subsidiaries or any of their ERISA Affiliates. No “employee benefit plan” established or maintained by the Company, the Operating Partnership, their respective subsidiaries or any of their ERISA Affiliates, if such “employee benefit plan” were terminated, would have any “amount of unfunded benefit liabilities” (as defined under ERISA). None of the Company, the Operating Partnership or any of their respective subsidiaries nor any of their ERISA Affiliates has incurred or reasonably expects to incur any liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “employee benefit plan,” (ii) Sections 412, 4971 or 4975 of the Internal Revenue Code, or (iii) Section 4980B of the Internal Revenue Code with respect to the excise tax imposed thereunder. Each “employee benefit plan” established or maintained by the Company, the Operating Partnership or any of their respective subsidiaries or any of their ERISA Affiliates that is intended to be qualified under Section 401(a) of the Internal Revenue Code has received a favorable determination letter from the Internal Revenue Service and nothing has occurred, whether by action or failure to act, which is reasonably likely to cause disqualification of any such employee benefit plan under Section 401(a) of the Internal Revenue Code.
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(nn) The Company, the Operating Partnership and their respective subsidiaries maintain effective internal control over financial reporting, as such term is defined in Rule 13a–15(f) under the Exchange Act.
(oo) The Company and the Operating Partnership have established and maintain disclosure controls and procedures (as such term is defined in Rules 13a-15 and 15d-15 under the Exchange Act); such disclosure controls and procedures are designed to ensure that material information relating to the Company, the Operating Partnership and their respective subsidiaries is made known to the respective chief executive officer and chief financial officer of the Company and the Operating Partnership by others within the Company and the Operating Partnership or any of their respective subsidiaries, and such disclosure controls and procedures are reasonably effective to perform the functions for which they were established subject to the limitations of any such control system; the Company’s auditors and the audit committee of the board of directors of the Company have been advised of: (i) any significant deficiencies or material weaknesses in the design or operation of internal controls which could adversely affect the ability of the Company or the Operating Partnership to record, process, summarize, and report financial data; and (ii) any fraud, whether or not material, that involves management or other employees who have a role in the internal controls of the Company or the Operating Partnership; and since the date of the most recent evaluation of such disclosure controls and procedures, there have been no significant changes in internal controls or in other factors that could materially affect internal controls, including any corrective actions with regard to significant deficiencies and material weaknesses.
(pp) The Company has not distributed and will not distribute, prior to the termination of this Agreement, any offering material in connection with the offering and sale of the Shares other than the Prospectus and any Issuer Free Writing Prospectus reviewed and consented to by the Managers and identified in Schedule I hereto.
(qq) The Company, the Operating Partnership and their respective subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform in all material respects as required in connection with the operation of the business of the Company, the Operating Partnership and their respective subsidiaries as currently conducted, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company, the Operating Partnership and their respective subsidiaries have implemented and maintained commercially reasonable controls, policies, procedures, and safeguards to maintain and protect their material confidential information and the integrity, redundancy and security of all IT Systems and data (including all personal, personally identifiable, sensitive, confidential or regulated data (“Personal Data”)) used in connection with their businesses, and there have been no breaches, violations, outages or unauthorized uses of or accesses to same, except for those that have been remedied without material cost or liability, nor any incidents under internal review or investigations relating to the same. The Company, the Operating Partnership and their respective subsidiaries are presently in material compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification.
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(rr) The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement or the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
Any certificate signed by any officer of the Company or the Operating Partnership or any of their respective subsidiaries and delivered to the Managers or the Forward Purchasers or to counsel for the Managers and the Forward Purchasers in connection with this Agreement or any Terms Agreement or Confirmation shall be deemed a representation and warranty by the Company or the Operating Partnership, as applicable, to each Manager and Forward Purchaser as to the matters set forth therein.
The Company and the Operating Partnership acknowledge that the Managers and the Forward Purchasers and, for purposes of the opinions to be delivered pursuant to Section 4 hereof, counsel for the Company and the Operating Partnership and counsel for the Managers and the Forward Purchasers, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
3. Sale and Delivery of Shares.
(a) (i) Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to issue and sell Primary Shares from time to time through a Designated Manager, acting as sales agent, and each Manager agrees, at any time it is a Designated Manager, to use its reasonable efforts to sell, as sales agent for the Company, the Primary Shares on the following terms.
(ii) In addition, subject to the terms and conditions set forth herein and provided that the Company enters into a Confirmation with a Forward Purchaser with respect to a Forward, the Company may, in consultation with such Forward Purchaser and the Designated Manager, instruct such Designated Manager, as forward seller for such Forward Purchaser, to offer and sell the Forward Hedge Shares borrowed from third parties to hedge such Forward Purchaser’s exposure under such Forward, as contemplated by the relevant Forward Instruction Notice (as defined below); provided that a Non-Contingent Forward Transaction may only be entered into using a Confirmation in the form set forth in Annex II and a Contingent Forward Transaction may only be entered into using a Confirmation in the form set forth in Annex III.
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(b) The Shares are to be sold on a daily basis or otherwise as shall be mutually agreed to by the Company and the Designated Manager on any day that (A) is a trading day for the New York Stock Exchange (the “NYSE”), (B) the Company has instructed such Manager by telephone (confirmed promptly by electronic mail) to make such sales for the Company as sales agent or for the applicable Forward Purchaser as forward seller and (C) the Company has satisfied its obligations under Section 6 of this Agreement; provided, however, that the Company will only submit instructions to sell Shares to one of the Managers on a single trading day. If the Company wishes that Shares be sold through a Manager, it shall (x) in the case of sales for the Company, instruct such Manager as to the maximum amount of the Shares to be sold by the Designated Manager daily as agreed to by such Designated Manager (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement) and the minimum price per Share at which such Shares may be sold, provided that such Designated Manager may decline to accept any such instruction to sell Shares, in whole or in part, for any reason, or (y) in the case of a Forward, propose to the Designated Manager and the applicable Forward Purchaser to enter into a Forward consistent with the instruction substantially in the form set forth in Annex IV hereto (or such other form as the Company, such Forward Purchaser and such Designated Manager shall agree) (the “Forward Instruction Notice”). Such Designated Manager and/or such Forward Purchaser shall promptly choose to (1) accept the terms proposed in such Forward Instruction Notice, subject, solely in the case of a Contingent Forward Transaction, to satisfaction of the Additional Contingent Forward Conditions (as defined below), (2) decline to participate in the proposed Forward or (3) propose amended terms upon which to participate in the proposed Forward; provided, however, that in the case of clause (3), the Company may accept or reject such amended terms in its sole discretion no later than on the trading day following the trading day on which such Designated Manager and/or such Forward Purchaser proposed amended terms. Promptly upon the acceptance of a Forward Instruction Notice (and satisfaction of the Additional Contingent Forward Conditions, solely in the case of a Contingent Forward Transaction) (or its amended terms and in any event prior to sales of Forward Hedge Shares), the Company shall enter into a Confirmation with the applicable Forward Purchaser substantially in the form of Annex II or Annex III, as applicable, hereto and consistent with such Forward Instruction Notice; provided that, in the case of a Contingent Forward Transaction, the Supplemental Confirmation relating thereto shall be executed and delivered following the completion of sales of the Forward Hedge Shares in respect of such Contingent Forward Transaction, as provided in the applicable Confirmation. A Forward Instruction Notice relating to a Contingent Forward Transaction shall be subject to the following additional conditions (the “Additional Contingent Forward Conditions”): (i) the applicable Forward Purchaser decides, in its sole discretion, following receipt of the applicable Forward Instruction Notice from the Company, to quote indicative terms of such Contingent Forward Transaction, including the reference price, initial forward price, reference contingency premium, reference initial “delta”, maximum number of Shares underlying such Contingent Forward Transaction and contingency expiration schedule and any other relevant term (a “Contingent Forward Quote”) and (ii) the acceptance by both the Company and such Forward Purchaser of the Contingent Forward Quote, as it may have been modified by further communication between the Company and such Forward Purchaser prior to such acceptance.
(c) Subject to the terms and conditions hereof, the Designated Manager shall use its reasonable efforts, consistent with its normal trading and sales practices and applicable law and regulations, to sell on a particular day all of the Shares designated for the sale by the Company on such day. The gross sales price of the Shares sold under this Section 3 shall be the market price for shares of the Company’s Common Stock sold by the Designated Manager under this Section 3 on the NYSE at the time of sale of such Shares or otherwise at prices related to prevailing market prices or at negotiated prices (but in no event shall such gross price be less than the minimum price per Share designated by the Company at which such Shares may be sold).
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(d) The Company acknowledges and agrees that (A) there can be no assurance that the Designated Manager will be successful in selling the Primary Shares as sales agent or in borrowing and selling any Forward Hedge Shares as forward seller, (B) the Designated Manager will 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 the Designated Manager to use its reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement (whether acting as sales agent for the Company or as forward seller for the Forward Purchaser), and (C) the Designated Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Designated Manager and the Company.
(e) The Company shall not authorize the issuance and sale of, and a Designated Manager may not sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors (the “Board”), or a duly authorized committee thereof, and notified to the Designated Manager in writing. The Company or a Designated Manager may, upon notice to the other parties hereto by telephone (confirmed promptly by electronic mail), suspend an offering of the Shares by such Designated Manager for any reason and at any time (such period, a “Suspension Period”); provided, however, that such Suspension Period shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice or any Confirmation executed and delivered by the Company and the relevant Forward Purchaser prior to the giving of such notice.
(f) The Designated Manager hereby covenants and agrees not to make any sales of the Shares on behalf of the Company, pursuant to this Section 3, other than (A) by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “Continuous Offerings”), (B) privately negotiated transactions, (C) in the over-the-counter market, (D) on or through any national securities exchange or facility thereof, a trading facility of a national securities association, an alternative trading system, or any other market venue, (E) by any other method or payment permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Act, including sales made directly on the NYSE or sales made to or through a market maker, in block transactions or directly to any customer or client of the Designated Manager, or through an electronic communications network, or (F) 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 such Designated Manager pursuant to a Terms Agreement.
(g) In connection with sales pursuant to Section 3(a)(i) hereof, the compensation to a Designated Manager for sales of the Primary Shares with respect to which such Designated Manager acts as sales agent under this Agreement shall be up to 1.5% of the gross sales price of the Shares sold by such Designated Manager pursuant to Section 3(a)(i), as agreed between the Company and such Designated Manager at the time instructions to sell Shares are given, and payable as described in the succeeding subsection (h) below. The foregoing rate of compensation shall not apply when a Manager acts as principal, in which case the Company may sell Primary Shares to such Manager as principal at a price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. In connection with sales pursuant to Section 3(a)(ii) hereof, the compensation payable to the Designated Manager for sales of Forward Hedge Shares with respect to which the Designated Manager acts as forward seller shall be reflected in a reduction not to exceed, in the case of a Contingent Forward Transaction, 1.5% from the Initial Forward Price (as defined in the relevant Confirmation) and in the case of a Non-Contingent Forward Transaction, 1.5% of the Initial Forward Price (before applying the percentage discount at the beginning of the definition thereof in the relevant Confirmation). In either case, the remaining proceeds, after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
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(h) A Designated Manager shall provide written confirmation (which may be by facsimile or electronic mail) to the Company and, if applicable, the related Forward Purchaser following the close of trading on the NYSE each day in which the Shares are sold by such Designated Manager under this Section 3 setting forth (i) the number of the Shares sold on such day, (ii) the aggregate gross sales proceeds and the Net Proceeds to the Company and (iii) the Initial Forward Price as of such day under any Confirmation pursuant to which the Forward Hedge Shares were sold on such day. Compensation payable to a Designated Manager with respect to any sales made pursuant to this Agreement shall be set forth and invoiced in periodic statements from such Designated Manager to the Company, with payment to be made by the Company promptly after its receipt thereof.
(i) Settlement for sales of Shares pursuant to this Section 3 will occur on the first Business Day following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date for the sale of Primary Shares through a Designated Manager as sales agent pursuant to Section 3(a)(i) hereof (each such day, a “Direct Settlement Date”), the Primary Shares sold through a Designated Manager for settlement on such date shall be issued and delivered by the Company to such Designated Manager against payment of the Net Proceeds from the sale of such Primary Shares. On each Settlement Date for the sale of Forward Hedge Shares through a Designated Manager as forward seller pursuant to Section 3(a)(ii) hereof (each such day, a “Forward Settlement Date” and, together with the Direct Settlement Date, a “Settlement Date”), such Forward Hedge Shares shall be delivered by the applicable Forward Purchaser to the Designated Manager against payment by such Designated Manager of the Net Proceeds from the sale of such Forward Hedge Shares. Settlement for all such Shares shall be effected by free delivery of the Shares to such Designated Manager’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the account designated by the Company. If the Company or its transfer agent (if applicable) shall default on its obligation to deliver the Primary Shares to the Designated Manager acting as sales agent for the Company on any Direct Settlement Date, the Company shall (A) indemnify and hold such Designated Manager harmless against any loss, claim or damage arising from or as a result of such default by the Company and (B) pay such Designated Manager any commission to which it would otherwise be entitled absent such default. If a Designated Manager breaches this Agreement by failing to deliver the Net Proceeds to the Company on any Direct Settlement Date for the Shares delivered by the Company, such Designated Manager will pay the Company interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to such Designated Manager.
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(j) At each Applicable Time, Settlement Date, Representation Date (as defined in Section 4(l)) and Filing Date (as defined in Section 4(r)), the Company shall be deemed to have affirmed each representation and warranty contained in this Agreement as if such representation and warranty were made as of such date, modified as necessary to relate to the Registration Statement, the Disclosure Package and the Prospectus as amended as of such date. Any obligation of any Manager to use its reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties of the Company and the Operating Partnership herein and in the related Confirmation, as applicable, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement.
(k) Notwithstanding any other provision of this Agreement the Company shall not request the sale of any Shares that would be sold, and the Manager shall not be obligated to sell during any period in which the Company is, or could be deemed to be, in possession of material non-public information; provided, however, that if the Company wishes to offer or sell Shares to a Manager as sales agent at any time during such period, the Company shall file with the Commission, to the extent necessary, such material non-public information.
(l) If the Company wishes to issue and sell Primary Shares pursuant to this Agreement but other than as set forth in Section 3 of this Agreement (each, a “Placement”), it will notify the applicable Manager(s) of the proposed terms of such Placement. If such Manager(s), acting as principal(s), wishes/wish to accept such proposed terms (which a Manager may decline to do for any reason in its sole discretion) or, following discussions with the Company wishes/wish to accept amended terms, such Manager(s) and the Company will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or such Manager(s) unless and until the Company and such Manager(s) have each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.
(m) Each sale of the Shares to a Manager shall be made in accordance with the terms of this Agreement and, if applicable, a Terms Agreement, which will provide for the sale of such Shares to, and the purchase thereof by, such Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by a Manager. The commitment of a Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company and the Operating Partnership herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Primary Shares to be purchased by a Manager pursuant thereto, the price to be paid to the Company for such Primary Shares, any provisions relating to rights of, and default by, managers acting together with such Manager in the reoffering of the Primary Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Primary Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by such Manager.
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(n) Under no circumstances shall the number and aggregate amount of the Shares sold pursuant to this Agreement and any Terms Agreement exceed (i) the aggregate amount set forth in Section 1, (ii) the number of shares of the Common Stock available for issuance under the currently effective Registration Statement or (iii) the number and aggregate amount of the Shares authorized from time to time to be issued and sold under this Agreement by the Board, or a duly authorized committee thereof, and notified to the Managers in writing. The Managers shall have no responsibility for maintaining records with respect to Shares available for sale under the Registration Statement or for determining the aggregate gross sales price, the number or the minimum price of Shares duly authorized by the Company.
(o) If either the Company or the Operating Partnership, on the one hand, or any Manager or any Forward Purchaser, on the other hand, has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it shall promptly notify the other party and sales of the Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of such parties; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to any Confirmation executed and delivered by the Company to the relevant Forward Purchaser prior to the giving of such notice.
(p) Notwithstanding anything herein to the contrary, in the event that in the good faith, commercially reasonable judgment of the applicable Forward Purchaser either (i) it or its affiliate is unable to borrow and deliver a number of Forward Hedge Shares in accordance with this Agreement and the relevant Forward Instruction Notice or (ii) a Stock Borrow Event (as defined in the relevant Confirmation) would occur, then the obligations hereunder of the related Manager, as forward seller, to use reasonable efforts to offer and sell Forward Hedge Shares shall only extend to the aggregate number of Forward Hedge Shares that such Forward Purchaser or its affiliate is able to so borrow below such cost.
(q) In connection with entering into any Confirmation, the Company will not acquire any long position (either directly or indirectly, including through an affiliate or through a derivative transaction) with respect to its Common Stock; provided, that, for the avoidance of any doubt, the acquisition of its Common Stock through an ongoing stock purchase plan shall not constitute a long position in connection with entering into any Confirmation. For purposes of this Section 3(q), “affiliate” means, with respect to any person or entity, any other person or entity directly or indirectly controlling, controlled by, or under common control with such person or entity.
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4. Agreements. The Company agrees with each of the Managers and each of the Forward Purchasers that:
(a) During any period when the delivery of a prospectus relating to the Shares is required (including in circumstances where such requirement may be satisfied pursuant to Rule 172 or any similar rule) to be delivered under the Act in connection with the offering or sale of the Shares, the Company will not file any amendment of the Registration Statement or supplement in connection with the offering and sale of the Shares (including the Prospectus Supplement or any Interim Prospectus Supplement) to the Base Prospectus, the Disclosure Package or the Prospectus, whether pursuant to the Act, the Exchange Act or otherwise, unless (A) the Company has furnished to the Managers and the Forward Purchasers a copy of such amendment or supplement (including, for the avoidance of doubt, reports or other information to be filed by the Company under the Exchange Act that would be incorporated by reference into the Registration Statement and Prospectus) for their review a reasonable period of time prior to filing (or, in the case of Current Reports on Form 8–K, has used its commercially reasonable efforts to so furnish copies to the Managers and the Forward Purchasers prior to filing), and (B) except for reports or other information required to be filed by the Company under the Exchange Act, the Company will not file any such proposed amendment or supplement to which the Managers or the Forward Purchasers reasonably object. The Company has prepared the Prospectus, in a form approved by the Managers and the Forward Purchasers, and shall file such Prospectus, as amended at the Execution Time, with the Commission pursuant to the applicable paragraph of Rule 424(b) promptly after the Execution Time (but in any event within the time period described thereby) and will cause any amendment or supplement to the Prospectus to be prepared, in a form approved by the Managers and the Forward Purchasers, and will file such amendment or supplement with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed thereby and will notify the Managers and the Forward Purchasers of such timely filing. The Company, subject to this Section 4(a) and Section 4(c) below, will comply with the requirements of Rule 430B. During any period when the delivery of a prospectus relating to the Shares is required (including in circumstances where such requirement may be satisfied pursuant to Rule 172 or any similar rule) to be delivered under the Act in connection with the offering or sale of the Shares, the Company will promptly advise the Managers and the Forward Purchasers (i) when the Prospectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, during any period when the delivery of a prospectus (whether physically or through compliance with Rule 172 or any similar rule) is required under the Act in connection with the offering or sale of the Shares, any amendment to the Registration Statement or any new registration statement relating to the Shares shall have been filed or become effective (other than a prospectus supplement relating solely to the offering of securities other than the Shares), (iii) of the receipt of any comments from the Commission (iv) of any request by the Commission or its staff for any amendment to the Registration Statement, or for any amendment or supplement to the Prospectus or for any additional information, (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the issuance of any order preventing or suspending the use of the Prospectus or any amendment or supplement thereto, including under Section 8A of the Act, or the institution or threatening of any proceeding for any of such purposes or pursuant to Section 8A of the Act, or (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain at the earliest possible moment the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
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(b) If, at any time on or after an Applicable Time but prior to the related Settlement Date or Time of Delivery, any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, the Company will (i) notify promptly the relevant Manager(s) and Forward Purchaser(s) so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to the relevant Manager(s) in such quantities as the Manager(s) and Forward Purchaser(s) may reasonably request.
(c) During any period when the delivery of a prospectus relating to the Shares is required (including in circumstances where such requirement may be satisfied pursuant to Rule 172 or any similar rule) to be delivered under the Act, if any event occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Prospectus, the Company promptly will (i) notify the Managers and the Forward Purchasers of any such event, (ii) prepare and file with the Commission, subject to the first sentence of paragraph (a) of this Section 4, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Prospectus and (iv) supply any supplemented Prospectus to the Managers and the Forward Purchasers in such quantities as the Managers and the Forward Purchasers may reasonably request.
(d) As soon as practicable, the Company will make generally available to its security holders and to the Managers and the Forward Purchasers an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(e) The Company will deliver to the Managers and the Forward Purchasers and counsel for the Managers and the Forward Purchasers, without charge, as such Managers and Forward Purchasers or counsel for the Managers and the Forward Purchasers may reasonably request, signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and signed copies of all consents and certificates of experts. The Registration Statement and each amendment thereto furnished to the Managers will be identical to any electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(f) The Company will deliver to the Managers and the Forward Purchasers and counsel for the Managers and the Forward Purchasers, without charge, for so long as delivery of a prospectus by the Managers or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 or any similar rule), as many copies of the Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as any Manager or Forward Purchaser may reasonably request. The Prospectus and any Issuer Free Writing Prospectus and any amendments or supplements thereto furnished to the Managers will be identical to any electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T. The Company will pay the expenses of printing or other production of all documents relating to the offering.
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(g) The Company will arrange, if necessary, for the qualification of the Shares for sale under the laws of such jurisdictions as the Managers and the Forward Purchasers may designate and will maintain such qualifications in effect so long as required for the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject or where it would be subject to taxation as a foreign business.
(h) The Company agrees that, unless it has or shall have obtained the prior written consent of the relevant Designated Manager and Forward Purchaser, and each Manager agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule I hereto. Any such free writing prospectus consented to by the Managers and the Forward Purchasers or the Company, as the case may be, is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) [Intentionally Omitted].
(j) The Company and the Operating Partnership will not (i) take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares or (ii) sell, bid for, purchase or pay any person (other than as contemplated by this Agreement or any Terms Agreement or Confirmation) any compensation for soliciting purchases of the Shares.
(k) The Company will, at any time during the term of this Agreement, as amended or supplemented from time to time, advise the Managers and the Forward Purchasers promptly after it shall have received notice or obtained knowledge thereof, of any information or fact that would materially alter or affect any opinion, certificate, letter and other document provided to the Managers and the Forward Purchasers pursuant to Section 6 herein.
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(l) Upon commencement of the offering of the Shares under this Agreement on the date hereof (if requested by the Managers) (and upon the recommencement of the offering of the Shares under this Agreement following the termination of a Suspension Period), and each time thereafter that (i) the Registration Statement or the Prospectus shall be amended or supplemented (other than (A) an Interim Prospectus Supplement filed pursuant to Rule 424(b) pursuant to Section 4(r) of this Agreement, (B) a prospectus supplement relating solely to the offering or resale of securities other than the Shares or (C) the filing with the Commission of any report under the Exchange Act except such reports referred to in Section 4(l)(ii)), (ii) there is filed with the Commission any Annual Report on Form 10-K or Quarterly Report on Form 10-Q, or any other document that contains financial statements or financial information that is incorporated by reference into the Prospectus, or any amendment thereto, (iii) prior to the first sale of Shares effected pursuant to Section 3(f)(E) in a block transaction or directly to any customer or client of the Designated Manager or (iv) the Shares are delivered to one or more Managers as principal at the Time of Delivery pursuant to a Terms Agreement (such commencement date (in the case that the above-mentioned request is made by a Manager) or recommencement date and each such date referred to in (i), (ii), (iii) and (iv) above, a “Representation Date”), the Company shall furnish or cause to be furnished to the Managers and the Forward Purchasers forthwith certificates dated and delivered on such Representation Date, as the case may be, in form satisfactory to the Managers and the Forward Purchasers to the effect that the statements contained in the certificates referred to in Section 6(d) and Section 6(e) of this Agreement which were last furnished to the Managers and the Forward Purchasers are true and correct at the time of such Representation Date, as though made at and as of such time (except that such statements shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to such time) or, in lieu of such certificates, certificates of the same tenor as the certificates referred to in said Section 6(d) and Section 6(e), modified as necessary to relate to the Registration Statement, the Disclosure Package and the Prospectus as amended and supplemented to the time of delivery of such certificates. For purposes of this agreement “commencement of the offering” or “date of commencement” shall mean the initial date on which any of the Managers sells Shares pursuant to this Agreement and “recommencement of the offering” or “recommencement” shall mean the date on which any of the Managers sells Shares pursuant to this Agreement following a Suspension Period.
(m) At each Representation Date, the Company shall furnish or cause to be furnished forthwith to the Managers and the Forward Purchasers and to counsel to the Managers and the Forward Purchasers a written opinion and negative assurance letter of Mayer Brown LLP, counsel to the Company and the Operating Partnership, and Venable LLP, Maryland counsel to the Company (together, “Company Counsel”), or other counsel reasonably satisfactory to the Managers and the Forward Purchasers, and the General Counsel of the Company and the Operating Partnership, each dated and delivered on such Representation Date, in form and substance satisfactory to the Managers and the Forward Purchasers, of the same tenor as the opinions referred to in Section 6(b) of this Agreement, but modified as necessary to relate to the Registration Statement, the Disclosure Package and the Prospectus as amended and supplemented to the time of delivery of such opinion.
(n) At each Representation Date, Sidley Austin LLP, counsel to the Managers and the Forward Purchasers, shall deliver a written opinion and negative assurance letter, dated and delivered on such Representation Date, in form and substance satisfactory to the Managers and the Forward Purchasers, of the same tenor as the opinions referred to in Section 6(c) of this Agreement but modified as necessary to relate to the Registration Statement, the Disclosure Package and the Prospectus as amended and supplemented to the time of delivery of such opinion.
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(o) At each Representation Date, the Company shall cause KPMG LLP, or other independent accountants satisfactory to the Managers (and any other independent registered public accounting firm whose report is incorporated by reference into the Registration Statement, the Disclosure Package and the Prospectus) forthwith, to furnish the Managers a letter, dated and delivered on such Representation Date, in form and substance satisfactory to the Managers of the same tenor as the letter referred to in Section 6(f) of this Agreement but modified to relate to the Registration Statement, the Disclosure Package and the Prospectus, as amended and supplemented to the date of such letter.
(p) At each Representation Date, and at such other times as may be reasonably requested by a Manager (which shall be on a quarterly basis or otherwise), the Company will conduct a due diligence session, in form and substance satisfactory to the Managers, which shall include representatives of the management and the independent accountants of the Company. The Company shall cooperate in a timely manner with any reasonable due diligence request from or review conducted by the Managers or their agents from time to time in connection with the transactions contemplated by this Agreement, including, without limitation, providing information and available documents and access to appropriate corporate officers and the Company’s agents during regular business hours and at the Company’s principal offices, and timely furnishing or causing to be furnished such certificates, letters and opinions from the Company, its officers and its agents, as the Managers and the Forward Purchasers may reasonably request.
(q) The Company consents to each Manager and Forward Purchaser trading in the Common Stock for their own account and for the account of their clients at the same time as sales of the Shares occur pursuant to this Agreement or pursuant to a Terms Agreement.
(r) The Company will either (i) disclose in its Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q, as applicable, with regard to the relevant quarter, the number of the Shares sold by or through the Managers pursuant to this Agreement, the Net Proceeds to the Company and the compensation paid by the Company with respect to such sales of the Shares pursuant to this Agreement, or (ii) on or prior to the earlier of (A) the date on which the Company shall file a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K in respect of any fiscal quarter in which sales of Shares were made by a Manager pursuant to this Agreement and (B) the date on which the Company shall be obligated to file such document referred to in clause (A) in respect of such quarter (each such date, and any date on which an amendment to any such document is filed, a “Filing Date”), the Company will file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b), which prospectus supplement will set forth, with regard to such quarter, the number of the Shares sold by or through a Manager pursuant to this Agreement, the Net Proceeds to the Company and the compensation paid by the Company with respect to such sales of the Shares pursuant to this Agreement and deliver such number of copies of each such prospectus supplement to the NYSE as are required by such exchange.
(s) If to the knowledge of the Company, the conditions set forth in Section 6(a) or 6(g) shall not be true and correct on the applicable Settlement Date or Time of Delivery, the Company will offer to any person who has agreed to purchase Shares from the Company as the result of an offer to purchase solicited by a Designated Manager the right to refuse to purchase and pay for such Shares.
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(t) Each acceptance by the Company of an offer to purchase the Shares hereunder, and each execution and delivery by the Company and the Operating Partnership of a Terms Agreement, shall be deemed to be an affirmation to the Designated Manager, or the Manager(s) party to a Terms Agreement, as the case may be, that the representations and warranties of the Company and the Operating Partnership contained in or made pursuant to this Agreement are true and correct as of the date of such acceptance or of such Terms Agreement as though made at and as of such date, and an undertaking that such representations and warranties will be true and correct as of the Settlement Date for the Shares relating to such acceptance or as of the Time of Delivery relating to such sale, as the case may be, as though made at and as of such date (except that such representations and warranties shall be deemed to relate to the Registration Statement, the Disclosure Package and the Prospectus as amended and supplemented relating to such Shares).
(u) The Company shall reserve and ensure that there are at all times sufficient shares of Common Stock to provide for the issuance, free of any preemptive rights, out of its authorized but unissued shares of Common Stock, of the maximum aggregate number of Shares authorized for issuance by the Board pursuant to the terms of this Agreement, any Confirmation and any Terms Agreement. The Company will use its commercially reasonable efforts to cause the Shares and the Confirmation Shares to be listed for trading on the NYSE and to maintain such listing.
(v) During any period when the delivery of a prospectus relating to the Shares is required (including in circumstances where such requirement may be satisfied pursuant to Rule 172 or any similar rule) to be delivered under the Act, the Company shall file, on a timely basis, with the Commission and the NYSE all reports and documents required to be filed under the Exchange Act and the regulations thereunder.
(w) The Company shall cooperate with the Managers and the Forward Purchasers and use its reasonable efforts to permit the Shares and the Confirmation Shares to be eligible for clearance and settlement through the facilities of DTC.
(x) The Company will apply the Net Proceeds from the sale of the Shares and the Net Proceeds in connection with any Confirmation in the manner set forth in the Disclosure Package and the Prospectus.
5. Payment of Expenses.
(a) The Company agrees to pay all costs, fees and expenses incurred in connection with the performance of its obligations under this Agreement and any Confirmation, whether or not the transactions contemplated hereby are consummated, including without limitation (i) all expenses incident to the issuance and delivery of the Shares and any Confirmation Shares (including all printing and engraving costs), (ii) all necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the Shares and any Confirmation Shares to the Managers or the Forward Purchasers, as applicable, (iii) all fees and expenses of the Company’s counsel, independent public or certified public accountants and other advisors to the Company, (iv) all costs and expenses incurred in connection with the preparation, printing, filing, shipping and distribution of the Registration Statement (including financial statements, exhibits, schedules, consents and certificates of experts), each Issuer Free Writing Prospectus and the Prospectus, and all amendments and supplements thereto, and this Agreement, (v) the fees and expenses associated with listing of the Shares and the Confirmation Shares on the NYSE, (vi) all fees and expenses of the registrar and transfer agent of the Common Stock, (vii) all other fees, costs and expenses referred to in Item 14 of Part II of the Registration Statement, and (viii) all other fees, costs and expenses incurred in connection with the performance of its obligations hereunder for which provision is not otherwise made in this Section. Except as provided in this Section 5 and in Section 7 hereof, the Managers and Forward Purchasers shall pay their own expenses, including the fees and disbursements of their counsel.
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(b) If this Agreement is terminated in accordance with the provisions of Section 8 hereof and the aggregate offering price of all Shares offered and sold pursuant to this Agreement does not equal or exceed $100,000,000, the Company shall reimburse the Managers for all reasonable and documented out-of-pocket expenses up to $100,000 in the aggregate, including the reasonable fees, disbursements and expenses of counsel for the Managers incurred by it in connection with the offering contemplated by this Agreement.
6. Conditions to the Obligations of the Managers. The obligations of the Managers under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions:
(a) The Prospectus, and any amendment or supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(r) of this Agreement; any material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatened.
(b) (i) The Company shall have requested and caused Company Counsel to furnish to the Managers and the Forward Purchasers, on every date specified in Section 4(m) of this Agreement, opinions collectively covering the opinions the form of which are attached hereto as Exhibit A. (ii) The Company shall have requested and caused the General Counsel of the Company and the Operating Partnership to furnish to the Managers and the Forward Purchasers, on every date specified in Section 4(m) of this Agreement, its opinion, dated as of such date and addressed to the Managers and the Forward Purchasers, in the form attached hereto as Exhibit B.
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(c) The Managers and the Forward Purchasers shall have received from Sidley Austin LLP, counsel for the Managers and the Forward Purchasers, on every date specified in Section 4(n) of this Agreement, such opinion or opinions, dated as of such date and addressed to the Managers and the Forward Purchasers, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Managers and the Forward Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company and the Operating Partnership shall have furnished or caused to be furnished to the Managers and the Forward Purchasers, on every date specified in Section 4(l) of this Agreement, a certificate of the Company and the Operating Partnership, signed by the Chief Executive Officer, General Counsel or any Assistant General Counsel of the Company, and the Chief Financial Officer or Chief Accounting Officer of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the Company has received no stop order suspending the effectiveness of the Registration Statement, and no proceedings for such purpose or pursuant to Section 8A of the Act have been instituted or, to the Company’s knowledge, threatened by the Commission;
(ii) since the date of the most recent financial statements included in the Prospectus and the Disclosure Package, there has been no Material Adverse Change, except as set forth in or contemplated in the Disclosure Package and the Prospectus;
(iii) the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date; and
(iv) the Company has complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date.
(e) The Company and the Operating Partnership shall have furnished or caused to be furnished to the Managers and the Forward Purchasers, on every date specified in Section 4(l) of this Agreement, a certificate executed by the Chief Financial Officer or Chief Accounting Officer of the Company, dated as of such date, in form and substance reasonably satisfactory to the Managers and the Forward Purchasers.
(f) The Company shall have requested and caused KPMG LLP (and any other independent registered public accounting firm whose report is incorporated by reference into the Registration Statement, Disclosure Package and Prospectus) to have furnished to the Managers, on every date specified in Section 4(o) hereof and to the extent requested by the Managers in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Managers and the Forward Purchasers), dated as of such date, in form and substance satisfactory to the Managers, which letters shall cover, without limitation, the various financial statements and disclosures of the Company and the Operating Partnership (and of any other entities as the Managers may reasonably request) contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on AS Section 6101, as well as confirming that they have performed a review of any unaudited interim financial information of the Company included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on AS Section 4105.
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References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter.
(g) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) Material Adverse Change, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Managers and the Forward Purchasers, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(h) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(i) [Intentionally Omitted].
(j) The Shares and the Confirmation Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Managers and the Forward Purchasers.
(k) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Designated Manager such further information, certificates and documents as the Designated Manager may reasonably request.
(l) Prior to the sale of any Forward Hedge Shares, the Company shall have delivered an executed Confirmation substantially in the form of Annex II or Annex III, as applicable, hereto and consistent with the related Forward Instruction Notice to the applicable Forward Purchaser. The related Pricing Supplement or Supplemental Confirmation shall be executed and delivered when required pursuant to the applicable Confirmation.
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If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Managers and the Forward Purchasers and counsel for the Managers and the Forward Purchasers, this Agreement and all obligations of the applicable Manager and Forward Purchaser hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by such Manager with respect to itself only. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. Following any such cancellation by a Manager or Forward Purchaser, this Agreement shall remain in effect as to the other Managers and Forward Purchasers that have not exercised their right to cancel this Agreement pursuant to this Section 6 and any obligations and rights of the Managers and Forward Purchasers under this Agreement shall be satisfied by or afforded to only such other Managers and Forward Purchasers.
The documents required to be delivered by this Section 6 shall be delivered at the office of Sidley Austin LLP, counsel for the Managers, at 787 Seventh Avenue, New York, New York 10019, on each such date as provided in this Agreement.
7. Indemnification and Contribution.
(a) The Company and the Operating Partnership, jointly and severally, agree to indemnify and hold harmless each Manager, Forward Purchaser and their respective affiliates, as such term is defined in Rule 501(b) under the Act (each, an “Affiliate”), the directors, officers, employees and agents of each Manager and Forward Purchaser, any broker-dealer affiliate of a Manager through which Shares are sold, and each person who controls a Manager or Forward Purchaser within the meaning of either the Act or the Exchange Act, against any loss, claim, damage, liability or expense, as incurred, to which they or any of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Company and the Operating Partnership or otherwise permitted by paragraph (d) below), insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto) or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact contained in any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, the Base Prospectus, the Prospectus Supplement or any Interim Prospectus Supplement (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact, in each case, necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) in whole or in part upon any inaccuracy in the representations and warranties of the Company or the Operating Partnership contained herein; or (iv) in whole or in part upon any failure of the Company or the Operating Partnership to perform its obligations hereunder or under law; and agrees to reimburse each such indemnified party, for any and all expenses (including the reasonable fees and disbursements of counsel chosen by the indemnified party) as such expenses are reasonably incurred by them in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with any Manager Information. This indemnity agreement will be in addition to any liabilities that the Company or the Operating Partnership may otherwise have.
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(b) Each Manager agrees, severally and not jointly, to indemnify and hold harmless the Company and the Operating Partnership, the directors of the Company and the Operating Partnership (as applicable), each of their respective officers who signed the Registration Statement and each person, if any, who controls the Company or the Operating Partnership within the meaning of the Act or the Exchange Act, against any loss, claim, damage, liability or expense, as incurred, to which the Company, the Operating Partnership or any such director, officer or controlling person may become subject, under the Act, the Exchange Act, or other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of such Manager or otherwise permitted by paragraph (d) below), insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto) or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact contained in any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, the Base Prospectus, the Prospectus Supplement or any Interim Prospectus Supplement (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact, in each case, necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Issuer Free Writing Prospectus, any Prospectus Supplement or any Interim Prospectus Supplement (or any amendment or supplement thereto), in reliance upon and in conformity with any Manager Information, it being understood and agreed upon that there is no such Manager Information; and to reimburse the Company or the Operating Partnership, or any such director, officer or controlling person for any legal and other expense reasonably incurred by the Company or the Operating Partnership, or any such director, officer or controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action. The indemnity agreement set forth in this Section 7(b) shall be in addition to any liabilities that each Manager may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 7, notify the indemnifying party in writing of the commencement thereof; but the omission to so notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party for contribution or otherwise than under the indemnity agreement contained in paragraph (a) or (b) above or to the extent it is not prejudiced (through the forfeiture of substantive rights or defenses) as a proximate result of such failure. In case any such action is brought against any indemnified party and such indemnified party seeks or intends to seek indemnity from an indemnifying party, the indemnifying party will be entitled to participate in, and, to the extent that it shall elect, jointly with all other indemnifying parties similarly notified, by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that a conflict may arise between the positions of the indemnifying party and the indemnified party in conducting the defense of any such action or that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assume such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of such indemnifying party’s election to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 7 for any legal or other expenses (other than reasonable costs of investigation) subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (together with local counsel), representing the indemnified parties who are parties to such action), (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action, in each of which cases the fees and expenses of counsel shall be at the expense of the indemnifying party or (iii) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party.
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(d) The indemnifying party under this Section 7 shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by Section 7(c) hereof, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 60 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement; provided, that if it is ultimately determined that an indemnified party was not entitled to indemnification hereunder, such indemnified party shall be responsible for repaying or reimbursing such amounts to the indemnifying party. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened action, suit or proceeding in respect of which any indemnified party is or could have been a party and indemnity was or could have been sought hereunder by such indemnified party, unless such settlement, compromise or consent (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such action, suit or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
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(e) If the indemnification provided for in this Section 7 is for any reason held to be unavailable to or otherwise insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party, as incurred, as a result of any losses, claims, damages, liabilities or expenses referred to therein (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Operating Partnership, on the one hand, and each Manager and the applicable Forward Purchaser, on the other hand, from the offering of the Shares pursuant to this Agreement, or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Operating Partnership, on the one hand, and the applicable Manager and Forward Purchaser, on the other hand, in connection with the statements or omissions or inaccuracies in the representations and warranties herein which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Operating Partnership shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by them (which shall be deemed to include the proceeds that would be received by the Company upon physical settlement (and if applicable, exercise of contingency) of any Confirmation and any “Contingency Premium” (as defined in the Confirmation for a Contingent Forward Transaction received by the Company) assuming that the aggregate amount payable by the Forward Purchaser under such Confirmation is equal to the aggregate amount of the net proceeds realized upon the sale of the Shares), benefits received by the applicable Manager shall be deemed to be equal to the total compensation received by such Manager under Section 3(g) of this Agreement and benefits received by the applicable Forward Purchaser shall be deemed to be equal to the aggregate net Spread (as defined in the relevant Confirmation and net of any related commercially reasonable hedging and other costs) received by such Forward Purchaser, in each case as determined by this Agreement or any applicable Terms Agreement or Confirmation. The relative fault of the Company and the Operating Partnership, on the one hand, and the applicable Manager and Forward Purchaser, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact or any such inaccurate or alleged inaccurate representation or warranty relates to information supplied by the Company or the Operating Partnership, on the one hand, or such Manager or Forward Purchaser, on the other hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 7(c), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The provisions set forth in Section 7(c) with respect to notice of commencement of any action shall apply if a claim for contribution is to be made under this Section 7(e); provided, however, that no additional notice shall be required with respect to any action for which notice has been given under Section 7(c) for purposes of indemnification.
The Company, the Operating Partnership, the Managers and the Forward Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 7(e) were determined by pro rata allocation (even if the Managers were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 7(e).
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Notwithstanding the provisions of this Section 7(e), no Manager shall be required to contribute any amount in excess of the discounts and commissions received by such Manager in connection with the Shares sold by it pursuant to this Agreement and any applicable Terms Agreement. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Managers’ obligations to contribute pursuant to this Section 7(e) are several, and not joint. For purposes of this Section 7(e), each Affiliate, director, officer, employee and agent of a Manager or Forward Purchaser, each person, if any, who controls a Manager or Forward Purchaser within the meaning of the Act and the Exchange Act and any broker-dealer affiliate of a Manager through which Shares are sold shall have the same rights to contribution as such Manager or such Forward Purchaser, and each director of the Company, each officer of the Company or the Operating Partnership who signed the Registration Statement, and each person, if any, who controls the Company or the Operating Partnership within the meaning of the Act and the Exchange Act shall have the same rights to contribution as the Company or the Operating Partnership.
8. Termination.
(a) The Company shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement relating to the solicitation of offers to purchase the Shares in its sole discretion at any time. Any such termination shall be without liability of any party to any other party except that (i) if Shares have been sold through a Manager for the Company, then Section 4(t) shall remain in full force and effect with respect to such Manager and the Company, (ii) with respect to any pending sale, through the Designated Manager for the Company, the obligations of the Company, including in respect of compensation of the Designated Manager, shall remain in full force and effect notwithstanding the termination, (iii) if a Pricing Supplement (in the case of a Non-Contingent Forward Transaction) or a Supplemental Confirmation (in the case of a Contingent Forward Transaction) 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 shall survive such termination until such time as such Pricing Supplement or Supplemental Confirmation has been executed and delivered pursuant to such Confirmation and (iv) the provisions of Sections 2, 5, 7, 9, 10, 12 and 14 of this Agreement shall remain in full force and effect notwithstanding such termination.
(b) Each Manager and each Forward Purchaser, as to itself, shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement relating to the solicitation of offers to purchase the Shares in its sole discretion at any time, with respect to such Manager or Forward Purchaser only. Any such termination shall be without liability of any party to any other party except that the provisions of Sections 2, 5, 7, 9, 10, 12 and 14 of this Agreement shall remain in full force and effect with respect to such Manager and Forward Purchaser notwithstanding such termination. Following any such termination by a Manager or Forward Purchaser, this Agreement shall remain in effect as to the other Managers and Forward Purchasers that have not exercised their respective right to terminate the provisions of this Agreement pursuant to this Section 8(b) and any obligations and rights of the Managers and Forward Purchasers under this Agreement shall be satisfied by or afforded to only such other Managers and Forward Purchasers.
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(c) This Agreement shall remain in full force and effect unless terminated pursuant to Sections 8(a) or (b) above or otherwise by mutual agreement of the parties or upon settlement of the sale of all the Shares in the aggregate in one or more offerings; provided that any such termination by mutual agreement shall in all cases be deemed to provide that Sections 2, 5, 7 and 9 shall remain in full force and effect.
(d) Any termination of this Agreement shall be effective on the date specified in such notice of termination; provided that such termination shall not be effective until the close of business on the date of receipt of such notice by a Manager, a Forward Purchaser, or the Company, as the case may be. If such termination shall occur prior to the Settlement Date or Time of Delivery for any sale of the Shares, such sale shall settle in accordance with the provisions of Section 3(i) of this Agreement.
(e) In the case of any purchase of Primary Shares by a Manager pursuant to a Terms Agreement, the obligations of such Manager pursuant to such Terms Agreement shall be subject to termination, in the absolute discretion of such Manager, by notice given to the Company prior to the Time of Delivery relating to such Primary Shares, if at any time prior to such delivery and payment (i) trading or quotation in any of the Company’s securities shall have been suspended or limited by the Commission or by the NYSE, or trading in securities generally on either the Nasdaq Stock Market or the NYSE shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchanges by the Commission or FINRA; (ii) a general banking moratorium shall have been declared by any of federal or New York authorities; (iii) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity involving the United States, or any change in the United States or international financial markets, or any substantial change or development involving a prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment of such Manager is material and adverse and makes it impracticable or inadvisable to proceed with the offering or delivery of the Primary Shares in the manner and on the terms described in the Disclosure Package and the Prospectus or to enforce contracts for the sale of securities; (iv) in the judgment of such Manager there shall have occurred any Material Adverse Change; or (v) there shall have occurred a material disruption in commercial banking or securities settlement or clearance services in the United States.
9. Representations and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements of the Company and the Operating Partnership or their officers and of each Manager set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by a Manager or Forward Purchaser or the Company or any of the officers, directors, employees, agents, affiliates or controlling persons referred to in Section 7 hereof, and will survive delivery of and payment for the Shares.
10. Notices. All communications hereunder will be in writing and shall be mailed, hand delivered, emailed or telecopied and confirmed to the parties hereto as set forth below.
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| Notices to the Managers shall be directed to: | Notices to the Forward Purchasers shall be directed, as applicable, to: |
Academy Securities, Inc. 622 Third Avenue, 12th Floor Attention: Compliance New York, N.Y. 10017 Telephone: (646) 736-3995 Email: compliance@academysecurities.com |
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BBVA Securities Inc. Two Manhattan West, 375 9th Ave, 9th Floor New York, New York 10001 |
Banco Bilbao Vizcaya Argentaria, S.A. Ciudad BBVA, Calle Sauceda nº 28 |
BNP Paribas Securities Corp. 787 Seventh Avenue New York, New York 10019 Attention: Chris Hutmaker Email: dl.nyk.ste@us.bnpparibas.com |
BNP Paribas 787 Seventh Avenue New York, New York 10019 Attention: Chris Hutmaker Email: dl.nyk.ste@us.bnpparibas.com |
BNY Mellon Capital Markets, LLC 240 Greenwich Street New York, New York 10286 Attention: Equity Capital Markets Facsimile:(212) 815-6403
With a copy (which shall not constitute notice) to: BNY Mellon Capital Markets, LLC 240 Greenwich Street New York, New York 10286 Attention: Operations Department, Third Floor Facsimile:(724) 540-6311
And to: Academy Securities, Inc. as agent of the Forward Seller, at the Sales Agreement Notice Addresses for Academy Securities, Inc. provided above |
The Bank of New York Mellon 240 Greenwich Street New York, New York 10286 Email: ATMGroup@bny.com Facsimile: (212) 815-6403
And to: Academy Securities, Inc., at the Sales Agreement Notice Addresses for Academy Securities, Inc. provided above |
BofA Securities, Inc. One Bryant Park |
Bank of America, N.A. One Bryant Park, 8th Floor New York, New York 10036 Attention: Rohan Handa Email: rohan.handa@bofa.com |
38
BTIG, LLC 65 East 55th Street New York, New York 10022 Attention: Equity Capital Markets Email: BTIGUSATMTrading@btig.com
With a copy which shall not constitute notice to: BTIG, LLC 350 Bush Street San Francisco, CA 94104 Attention: General Counsel and Chief Compliance Officer Emails: BTIGcompliance@btig.com; IBLegal@btig.com |
|
Citigroup Global Markets Inc. 388 Greenwich Street New York, New York 10013 Attention: General Counsel Facsimile: (646) 291-1469 With Copies to: setg.origination@citi.com |
Citibank, N.A. 390 Greenwich Street New York, New York 10013 Attention: Dustin Sheppard Telephone: (212) 723-5770 Email: dustin.c.sheppard@citi.com |
Credit Agricole Securities (USA) Inc. 1301 Avenue of the Americas New York, New York 10019 Attention: Douglas Cheng Telephone: (212) 261-7008 Emails: douglas.cheng@ca-cib.com; equitycapitalmarkets@ca-cib.com |
Crédit Agricole Corporate and Investment Bank 1301 Avenue of the Americas New York, New York 10019 Attention: Strategic Equity Transactions Emails: jonathan.fecowicz@ca-cib.com; set.americas@ca-cib.com |
Goldman Sachs & Co. LLC 200 West Street New York, New York 10282 Facsimile: (212) 902-9316 Attention: Registration Department |
Goldman Sachs & Co. LLC Facsimile: (212) 902-9316 |
HSBC Securities (USA) Inc. 66 Hudson Boulevard New York, New York 10001 Attention: Strategic Equity & Financing Email: sefus@us.hsbc.com |
HSBC Bank USA, National Association 66 Hudson Boulevard New York, New York 10001 Attention: Strategic Equity & Financing Email: sefus@us.hsbc.com |
ING Financial Markets LLC 1133 Avenue of the Americas New York, New York 10036 |
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Jefferies LLC 520 Madison Avenue New York, New York 10022 Attention: General Counsel
J.P. Morgan Securities LLC 270 Park Avenue New York, New York 10017 Attention: Sanjeet Dewal and Preston Ryman Telephone: (212) 622-8783; (212) 622-3132 Emails: sanjeet.s.dewal@jpmorgan.com; preston.t.ryman@jpmchase.com |
Jefferies LLC 520 Madison Avenue New York, New York 10022 Attention: Strategic Equity Transactions Group Telephone: (212) 708-2734 Emails: SETG-US@jefferies.com; CorpEqDeriv@jefferies.com
JPMorgan Chase Bank, National Association 270 Park Avenue New York, New York 10017 EDG Marketing Support Emails: edg_notices@jpmorgan.com; edg_ny_corporate_sales_support@jpmorgan.com
With a copy to: Attention: Sanjeet Dewal and Preston Ryman Email: sanjeet.s.dewal@jpmorgan.com; preston.t.ryman@jpmchase.com |
Loop Capital Markets LLC 425 South Financial Place, Suite 2700 Chicago, Illinois 60605 Attention: ECM Email: loopecm@loopcapital.com |
|
Mizuho Securities USA LLC 1271 Avenue of the Americas New York, New York 10020 Attention: Stephen Roney; Ivana Rupcic-Hulin; Daniel Blake Telephone: (212) 205-7527; (212) 205-7734; (212) 205-7755 Emails: Stephen.Roney@mizuhogroup.com; Ivana.Rupcic-Hulin@mizuhogroup.com; Daniel.Blake@mizuhogroup.com
With a copy to: Julie.Grossman@mizuhogroup.com |
Mizuho Markets Americas LLC c/o Mizuho Securities USA LLC, as agent 1271 Avenue of the Americas New York, New York 10020 Attention: US Equity Derivatives Notices Telephone: (646) 949-9531 Email: Derivs-EQNoticesUS@mizuhogroup.com |
| Morgan Stanley & Co.
LLC 1585 Broadway New York, New York 10036 Attention: Equity Syndicate Desk, with a copy to the Legal Department Facsimile: 212-507-1554 |
Morgan Stanley & Co. LLC 1585 Broadway New York, New York 10036 Attention: Jon Sierant Telephone: (212) 761-3778 Facsimile: (212) 507-4629 Email: Jon.Sierant@morganstanley.com |
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MUFG Securities Americas Inc. 1221 Avenue of the Americas, 5th Floor New York, New York 10020 Attention: Equity Capital Markets Telephone: (646) 434-3455 Emails: FLOEStransactions@us.sc.mufg.jp; ECM@us.sc.mufg.jp |
MUFG Securities EMEA plc Ropemaker Place 25 Ropemaker Street London EC2Y 9AJ United Kingdom Attention: Derivative Confirmations Facsimile: +44 (0) 20 7577 2898/2875 Email: docsconfirms@int.sc.mufg.jp With a copy to: ECM@us.sc.mufg.jp |
Nomura Securities International, Inc. 309 West 49th Street New York, New York 10019 Attention: Structured Equity Solutions Emails: atmexecution@nomura.com; cedamericas@nomura.com
With a copy to: Nomura Securities International, Inc. 309 West 49th Street New York, New York 10019 Attention: Equities Legal Email: nyequitieslegal@nomura.com
And to: BTIG, LLC as agent of the Forward Seller, at the Equity Distribution Agreement Notice Addresses for BTIG, LLC provided above |
Nomura Global Financial Products, Inc. 309 West 49th Street New York, New York 10019 Attention: Structured Equity Solutions Email: cedamericas@nomura.com
With a copy (which shall not constitute notice) to: Nomura Global Financial Products, Inc. 309 West 49th Street New York, New York 10019 Attention: Structured Equity Solutions Email: nyequitieslegal@nomura.com
And to: BTIG, LLC, at the Equity Distribution Agreement Notice Addresses for BTIG, LLC provided above |
RBC Capital Markets, LLC Attention: ECM Facsimile: (212) 428-6260 Email: RBCECMCorporateEquityLinkedDocumentation@rbc.com |
Royal Bank of Canada c/o RBC Capital Markets, LLC 200 Vesey Street New York, New York 10281 Attention: ECM Email: RBCECMCorporateEquityLinkedDocumentation@rbc.com |
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Regions Securities LLC 615 South College Street, Suite 600 Charlotte, NC 28202 Attention: ECM Desk Emails: brit.stephens@regions.com; ed.armstrong@regions.com; matthew.stewart@regions.com; scott.williams2@regions.com |
Regions Securities LLC 615 South College Street, Suite 600 Charlotte, NC 28202 Attention: ECM Desk Emails: brit.stephens@regions.com; ed.armstrong@regions.com; matthew.stewart@regions.com; scott.williams2@regions.com |
Samuel A. Ramirez & Company, Inc. 14 East 52nd Street, 5th Floor New York, New York 10022 |
|
Santander US Capital Markets LLC 437 Madison Avenue New York, New York 10022 Facsimile: (212) 407-0930 Attention: Craig Wiele, Rob Torres Email: craig.wiele@santander.us; robert.torres@santander.us |
Banco Santander, S.A. Ciudad Grupo Santander – Edificio Dehesa, Planta 1, Av. De Cantabria s/n 28660 Boadilla del Monte Madrid, Spain Attention: Strategic Equity Solutions Emails: strategicequityus@santander.us; ldmiddlestmsecfinance@gruposantander.com |
Scotia Capital (USA) Inc. 250 Vesey Street, 24th Floor New York, New York 10281 Attention: US ECM Email: us.ecm@scotiabank.com |
The Bank of Nova Scotia 44 King Street West Toronto, Ontario, Canada M5H 1H1
c/o Scotia Capital (USA) Inc., as Agent 250 Vesey Street, 24th Floor New York, New York 10281 Attention: US Equity Derivatives Email: John.kelly@scotiabank.com Telephone: (212) 225-6664 With a copy to: Email: BNSEquityConfirmations@scotiabank.com |
SMBC Nikko Securities America, Inc. 277 Park Avenue, 5th floor New York, New York 10172 Emails: nyecm@smbcnikko-si.com; NikkoGCNotices@smbcnikko-si.com |
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TD Securities (USA) LLC 1 Vanderbilt Avenue New York, New York 10017 Attention: ECM ATM Execution Team Telephone: (212) 827-7182 Email: TDS_ATM@tdsecurities.com with a copy to CIBLegal@tdsecurities.com |
The Toronto-Dominion Bank c/o TD Securities (USA) LLC, as Agent 1 Vanderbilt Avenue New York, New York 10017 Attention: Global Equity Derivatives Telephone: (646) 562-1504 Email: TDS_ATM@tdsecurities.com; TDUSA-GEDDelta1@tdsecurities.com; Igor.Biselman@tdsecurities.com; Matthew.Birmingham@tdsecurities.com |
Truist Securities, Inc. 50 Hudson Yards, 69th Floor New York, New York 10001 Attention: Equity Capital Markets Email: dl.atm.offering@truist.com
|
Truist Bank 50 Hudson Yards, 69th Floor New York, New York 10001 Attention: Equity Capital Markets Email: dl.atm.offering@truist.com
With a copy to: Rakesh Mangat Managing Director (212) 303-0137 rakesh.mangat@truist.com |
Wells Fargo Securities, LLC Attention: Special Equities Group |
Wells Fargo Bank, National Association Attention: Special Equities Group and Corporate Equity Derivatives Email: CorporateDerivativeNotifications@wellsfargo.com |
With a copy to: Sidley Austin LLP 787 Seventh Avenue New York, New York 10019 Email: doshea@sidley.com Attention: Daniel A. O’Shea | |
Notices to the Company and the Operating Partnership shall be directed to: Prologis, Inc. 1800 Wazee Street Denver, Colorado 80202 Email: legalnotice@prologis.com Attention: General Counsel | |
With a copy to: Mayer Brown LLP 1221 Sixth Avenue New York, New York 10020 Email: jberkery@mayerbrown.com Attention: John P. Berkery | |
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11. Successors. (a) This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the affiliates, officers, directors, employees, agents and controlling persons referred to in Section 7 hereof, and no other person will have any right or obligation hereunder. (b) An entity acting as a Forward Purchaser (the “Previous Forward Purchaser”) may, without the consent of the other parties hereto, designate an affiliate to replace it as Forward Purchaser (the “New Forward Purchaser”), in which case, from the date of such designation, the New Forward Purchaser shall for all the purposes of this Agreement be substituted for the Previous Forward Purchaser as a Forward Purchaser party hereto (as assignee of the Previous Forward Purchaser); provided, however, that the Company consents in writing to the assignment of the rights and obligations under this Agreement to the New Forward Purchaser.
12. No Fiduciary Duty. The Company and the Operating Partnership hereby acknowledge that (a) the purchase and sale of the Shares pursuant to this Agreement and any applicable Terms Agreement is an arm’s-length commercial transaction between the Company and the Operating Partnership, on the one hand, and the Managers, the Forward Purchasers and any affiliate through which they may be acting, on the other, and does not constitute a recommendation, investment advice, or solicitation of any action by the Managers or the Forward Purchasers (b) the Managers and the Forward Purchasers are acting solely as sales agent, forward seller, forward purchaser and/or principal in connection with the purchase and sale of the Company’s securities and not as a fiduciary of the Company or the Operating Partnership and (c) the Company’s and the Operating Partnership’s engagement of each Manager and Forward Purchaser in connection with the offering and the process leading up to the offering is as independent contractors and not in any other capacity, (d) the Managers and the Forward Purchasers have not provided any legal, accounting, regulatory, investment or tax advice with respect to the offering of the Shares and each of the Company and the Operating Partnership has consulted its own respective legal, accounting, financial, regulatory and tax advisors to the extent it deemed appropriate, and (e) none of the activities of the Managers and the Forward Purchasers in connection with the transactions contemplated herein constitutes a recommendation, investment advice or solicitation of any action by the Managers and the Forward Purchasers with respect to any entity or natural person. Furthermore, the Company and the Operating Partnership agree that they are solely responsible for making their own respective judgments in connection with the offering (irrespective of whether the Managers and the Forward Purchasers have advised or are currently advising the Company and the Operating Partnership on related or other matters). The Company and the Operating Partnership agree that they will not claim that the Managers and the Forward Purchasers have rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Company or the Operating Partnership, in connection with the transactions contemplated by this Agreement or the process leading thereto.
13. Integration. This Agreement and any Terms Agreement and Confirmation supersede all prior agreements and understandings (whether written or oral) between the Company, the Operating Partnership and the Managers with respect to the subject matter hereof.
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14. Applicable Law. This Agreement, any Terms Agreement and Confirmation and any claim, controversy or dispute arising out of or relating to this Agreement or any Terms Agreement or Confirmation shall be governed by and construed in accordance with the internal laws of the State of New York applicable to agreements made and to be performed in such State, without reference to choice of law doctrine. The parties hereto irrevocably submit to the exclusive jurisdiction of the courts of the State of New York and the United States District Court for the Southern District of New York in connection with all matters relating hereto and thereto or the transactions contemplated hereby or thereby and waive any objection to the laying of venue in, and any claim of inconvenient forum with respect to, these courts. Nothing in this provision shall prohibit either party from bringing an action to enforce a money judgment in any other jurisdiction.
15. Waiver of Jury Trial. Each of the Company and the Operating Partnership hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement, any Terms Agreement or any Confirmation or the transactions contemplated hereby or thereby.
16. Counterparts. This Agreement and any Terms Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
17. Headings. The section headings used in this Agreement and any Terms Agreement are for convenience only and shall not affect the construction hereof.
18. Patriot Act. Certain of the Managers hereby notify the Company that, pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), they are required to obtain, verify and record information that identifies the Company, including the name and address of the Company and other information that will allow such Managers to identify the Company in accordance with the USA Patriot Act.
19. Recognition of the U.S. Special Resolution Regimes. (i) In the event that any Manager or any Forward Purchaser that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Manager or such Forward Purchaser of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States. (ii) In the event that any Manager or any Forward Purchaser that is a Covered Entity or a BHC Act Affiliate of such Manager or such Forward Purchaser becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Manager or such Forward Purchaser are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
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For purposes of this Section 19 a “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k). “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
20. Definitions. The terms that follow, when used in this Agreement and any Terms Agreement, shall have the meanings indicated.
“Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Additional Contingent Forward Conditions” has the meaning set forth in Section 3(b) of this Agreement.
“Applicable Time” shall mean, with respect to any Shares, the time of sale of such Shares pursuant to this Agreement or any relevant Terms Agreement.
“Base Prospectus” shall mean the base prospectus referred to in Section 2(a) above contained in the Registration Statement at the Execution Time.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City.
“Commission” shall mean the Securities and Exchange Commission.
“Contingent Forward Quote” has the meaning set forth in Section 3(b) of this Agreement.
“Designated Manager” shall mean the Manager the Company designates from time to time as sales agent (other than BNY Mellon Capital Markets, LLC and Nomura Securities International, Inc.) to sell Primary Shares or as forward seller (other than Academy Securities, Inc. or BTIG, LLC) to sell Forward Hedge Shares pursuant to the terms of this Agreement.
“Disclosure Package” shall mean (i) the Base Prospectus, (ii) the Prospectus Supplement, (iii) the most recently filed Interim Prospectus Supplement, if any, (iv) the Issuer Free Writing Prospectuses, if any, identified in Schedule I hereto, (v) the public offering price of Shares sold at the relevant Applicable Time as specified in a Terms Agreement and (vi) any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package.
“Effective Date” shall mean each date and time that the Registration Statement and any post-effective amendment or amendments thereto became or becomes effective.
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“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Execution Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto.
“Forward” means a Non-Contingent Forward Transaction or a Contingent Forward Transaction.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“Ineligible Issuer” shall mean an ineligible issuer, as defined in Rule 405.
“Interim Prospectus Supplement” shall mean the prospectus supplement relating to the Shares prepared and filed pursuant to Rule 424(b) from time to time as provided by Section 4(r) of this Agreement.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.
“Pricing Supplement” shall mean the pricing supplement evidencing specific terms of a Non-Contingent Forward Transaction.
“Prospectus” shall mean the Base Prospectus, as supplemented by the Prospectus Supplement and the most recently filed Interim Prospectus Supplement (if any).
“Prospectus Supplement” shall mean the most recent prospectus supplement relating to the Shares that was first filed pursuant to Rule 424(b) at or prior to the Execution Time.
“Registration Statement” shall mean the registration statement referred to in Section 2(a) above, including exhibits and financial statements and any prospectus supplement relating to the Shares that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the event any post-effective amendment thereto becomes effective, shall also mean such registration statement as so amended.
“Rule 158,” “Rule 163,” “Rule 164,” “Rule 172,” “Rule 405,” “Rule 415,” “Rule 424,” “Rule 430B” and “Rule 433” refer to such rules under the Act.
“Supplemental Confirmation” shall mean the supplemental confirmation evidencing specific terms of a Contingent Forward Transaction.
“Well-Known Seasoned Issuer” shall mean a well-known seasoned issuer, as defined in Rule 405.
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21. UK Bail-in. Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements, or understanding between the Company, the Operating Partnership and any UK Bail-in Party, each of the Company and the Operating Partnership acknowledges, accepts and agrees that any UK Bail-in Liability arising under this Agreement may be subject to the exercise of UK Bail-in Powers by the relevant UK resolution authority, and acknowledges, accepts, and agrees to be bound by:
(a) the effect of the exercise of UK Bail-in Powers by the relevant UK resolution authority in relation to any UK Bail-in Liability of any UK Bail-in Party to the Company and/or the Operating Partnership under this Agreement, which exercise (without limitation) may include and result in any of the following, or a combination thereof:
(i) the reduction of all, or a portion, of the UK Bail-in Liability or outstanding amounts due thereon;
(ii) the conversion of all, or a portion, of the UK Bail-in Liability into shares, other securities or other obligations of such UK Bail-in Party or another person (and the issue to or conferral on the Company and/or the Operating Partnership of such shares, securities or obligations);
(iii) the cancellation of the UK Bail-in Liability; or
(iv) the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period; and
(b) the variation of the terms of this Agreement as deemed necessary by the relevant UK resolution authority, to give effect to the exercise of any UK Bail-in Powers by the relevant UK resolution authority.
The following terms used in this Section 21 are defined below:
“UK Bail-in Legislation” means Part I of the UK Banking Act 2009, as amended, and any other law or regulation applicable in the UK relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
“UK Bail-in Liability” means a liability in respect of which the UK Bail-in Powers may be exercised.
“UK Bail-in Party” means any party to this Agreement subject to UK Bail-in Powers.
“UK Bail-in Powers” means the powers under the UK Bail-in Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or affiliate of a bank or investment firm, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability.
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22. EU Bail-in. Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements, or understanding between the Company, the Operating Partnership and any BRRD Party, each of the Company and the Operating Partnership acknowledges, accepts and agrees that any BRRD Liability of a BRRD Party arising under or in relation to this Agreement may be subject to the exercise of Statutory Loss Absorption Powers by the Relevant Resolution Authority and acknowledges, accepts, consents to and agrees to be bound by:
(a) the effect of the exercise of any Statutory Loss Absorption Powers by the Relevant Resolution Authority in relation to any BRRD Liability of any BRRD Party to the Company and/or the Operating Partnership under this Agreement, which exercise (without limitation) may include and result in any of the following, or some combination thereof:
(i) the reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon;
(ii) the conversion of all, or a portion, of the BRRD Liability into shares, other securities or other obligations of such BRRD Party or another person (and the issue to or conferral on the Company and/or the Operating Partnership of such shares, securities or obligations);
(iii) the cancellation of the BRRD Liability; or
(iv) the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period; and
(b) the variation of the terms of this Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of Statutory Loss Absorption Powers by the Relevant Resolution Authority.
For the purposes of this Section 22:
“Bail-in Legislation” means, in relation to a member state of the European Economic Area which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule (as defined below) from time to time;
“BRRD” means Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, as amended or replaced from time to time;
“BRRD Liability” means a liability in respect of which the Statutory Loss Absorption Powers under the applicable Bail-in Legislation may be exercised;
“BRRD Party” means any party hereto that is subject to Statutory Loss Absorption Powers;
“EU Bail-in Legislation Schedule” means the document described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time;
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“Relevant Resolution Authority” means, in relation to any BRRD Party, the resolution authority with the ability to exercise any Statutory Loss Absorption Powers; and
“Statutory Loss Absorption Powers” means any write-down, conversion, transfer, modification, suspension or similar or related power existing from time to time under, and exercised in compliance with, any applicable laws, regulations, rules or requirements pursuant to the applicable Bail-in Legislation.
[Signature Page Follows]
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If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company, the Operating Partnership, the Managers and the Forward Purchasers.
| Very truly yours, | ||
| PROLOGIS, INC. | ||
| By: | /s/ David Malinger | |
| Name: | David Malinger | |
| Title: | Senior Vice President and Assistant Secretary | |
| PROLOGIS, L.P. | ||
| By: Prologis, Inc., its general partner | ||
| By: | /s/ David Malinger | |
| Name: | David Malinger | |
| Title: | Senior Vice President and Assistant Secretary | |
[Signature Page to Equity Distribution Agreement]
The foregoing Agreement hereby confirmed and accepted as of the date first written above.
ACADEMY SECURITIES, INC.
| By: | /s/ Michael Boyd | ||
| Name: | Michael Boyd | ||
| Title: | Chief Compliance Officer | ||
| As Manager | |||
[Signature Page to Equity Distribution Agreement]
The foregoing Agreement hereby confirmed and accepted as of the date first written above.
BBVA SECURITIES INC.
| By: | /s/ Shehzad Khan | ||
| Name: | Shehzad Khan | ||
| Title: | Managing Director | ||
| As Manager | |||
BANCO BILBAO VIZCAYA ARGENTARIA, S.A.
| By: | /s/ Luis Francisco Alarcon Gonzalez | ||
| Name: | Luis Francisco Alarcon Gonzalez | ||
| Title: | Managing Director | ||
| By: | /s/ Annabella Rutigliano | ||
| Name: | Annabella Rutigliano | ||
| Title: | Executive Director | ||
| As Forward Purchaser | |||
[Signature Page to Equity Distribution Agreement]
The foregoing Agreement hereby confirmed and accepted as of the date first written above.
BNP PARIBAS SECURITIES CORP.
| By: | /s/ John Nunziata | ||
| Name: | John Nunziata | ||
| Title: | Managing Director | ||
| As Manager | |||
BNP PARIBAS
| By: | /s/ John Nunziata | ||
| Name: | John Nunziata | ||
| Title: | Managing Director | ||
| By: | /s/ Barbara Genicot | ||
| Name: | Barbara Genicot | ||
| Title: | Managing Director | ||
| As Forward Purchaser | |||
[Signature Page to Equity Distribution Agreement]
The foregoing Agreement hereby confirmed and accepted as of the date first written above.
| BNY MELLON CAPITAL MARKETS, LLC | |||
| By: | /s/ Dan Klinger | ||
| Name: | Dan Klinger | ||
| Title: | Managing Director | ||
| As Manager | |||
| THE BANK OF NEW YORK MELLON | |||
| By: | /s/ Rob Lynch | ||
| Name: | Rob Lynch | ||
| Title: | Managing Director | ||
As Forward Purchaser
[Signature Page to Equity Distribution Agreement]
The foregoing Agreement hereby confirmed and accepted as of the date first written above.
| BOFA SECURITIES, INC. | |||
| By: | /s/ Kevin King | ||
| Name: | Kevin King | ||
| Title: | Managing Director | ||
| As Manager | |||
| BANK OF AMERICA, N.A. | |||
| By: | /s/ Jake Mendelsohn | ||
| Name: | Jake Mendelsohn | ||
| Title: | Managing Director | ||
As Forward Purchaser
[Signature Page to Equity Distribution Agreement]
The foregoing Agreement hereby confirmed and accepted as of the date first written above.
| BTIG, LLC | |||
| By: | /s/ Anthony Wayne | ||
| Name: | Anthony Wayne | ||
| Title: | Managing Director | ||
As Manager
[Signature Page to Equity Distribution Agreement]
The foregoing Agreement hereby confirmed and accepted as of the date first written above.
| CITIGROUP GLOBAL MARKETS INC. | |||
| By: | /s/ Steven Lewis | ||
| Name: | Steven Lewis | ||
| Title: | Authorized Signatory | ||
| As Manager | |||
| CITIBANK, N.A. | |||
| By: | /s/ Eric Natelson | ||
| Name: | Eric Natelson | ||
| Title: | Authorized Signatory | ||
As Forward Purchaser
[Signature Page to Equity Distribution Agreement]
The foregoing Agreement hereby confirmed and accepted as of the date first written above.
| CREDIT AGRICOLE SECURITIES (USA) INC. | |||
| By: | /s/ Jean-Marc Nguyen | ||
| Name: | Jean-Marc Nguyen | ||
| Title: | Managing Director | ||
| By: | /s/ Douglas Cheng | ||
| Name: | Douglas Cheng | ||
| Title: | Managing Director | ||
| As Manager | |||
| CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK | |||
| By: CREDIT AGRICOLE SECURITIES (USA) INC., AS AGENT | |||
| By: | /s/ Jean-Marc Nguyen | ||
| Name: | Jean-Marc Nguyen | ||
| Title: | Managing Director | ||
| By: | /s/ Douglas Cheng | ||
| Name: | Douglas Cheng | ||
| Title: | Managing Director | ||
As Forward Purchaser
[Signature Page to Equity Distribution Agreement]
The foregoing Agreement hereby confirmed and accepted as of the date first written above.
| GOLDMAN SACHS & CO. LLC | |||
| By: | /s/ Ryan Cunn | ||
| Name: | Ryan Cunn | ||
| Title: | Managing Director | ||
| As Manager | |||
| GOLDMAN SACHS & CO. LLC | |||
| By: | /s/ Michael Voris | ||
| Name: | Michael Voris | ||
| Title: | Managing Director | ||
As Forward Purchaser
[Signature Page to Equity Distribution Agreement]
The foregoing Agreement hereby confirmed and accepted as of the date first written above.
| HSBC SECURITIES (USA) INC. | |||
| By: | /s/ Adam Troyetsky | ||
| Name: | Adam Troyetsky | ||
| Title: | Director | ||
| As Manager | |||
| HSBC BANK USA, NATIONAL ASSOCIATION | |||
| By: | /s/ Yolanda Perez-Wilson | ||
| Name: | Yolanda Perez-Wilson | ||
| Title: | AVP, Derivatives Documentation Supervisor, HSBC Bank USA | ||
| As Forward Purchaser | |||
[Signature Page to Equity Distribution Agreement]
The foregoing Agreement hereby confirmed and accepted as of the date first written above.
| ING FINANCIAL MARKETS LLC | |||
| By: | /s/ Tim Casady | ||
| Name: | Tim Casady | ||
| Title: | Managing Director | ||
| By: | /s/ Kevin Riordan | ||
| Name: | Kevin Riordan | ||
| Title: | Director | ||
| As Manager | |||
[Signature Page to Equity Distribution Agreement]
The foregoing Agreement hereby confirmed and accepted as of the date first written above.
| JEFFERIES LLC | |||
| By: | /s/ Donald Lynaugh | ||
| Name: | Donald Lynaugh | ||
| Title: | Managing Director | ||
| As Manager | |||
| JEFFERIES LLC | |||
| By: | /s/ Donald Lynaugh | ||
| Name: | Donald Lynaugh | ||
| Title: | Managing Director | ||
| As Forward Purchaser | |||
[Signature Page to Equity Distribution Agreement]
The foregoing Agreement hereby confirmed and accepted as of the date first written above.
| J.P. MORGAN SECURITIES LLC | |||
| By: | /s/ Preston Ryman | ||
| Name: | Preston Ryman | ||
| Title: | Vice President | ||
| As Manager | |||
| JPMORGAN CHASE BANK, NATIONAL ASSOCIATION | |||
| By: | /s/ Preston Ryman | ||
| Name: | Preston Ryman | ||
| Title: | Vice President | ||
| As Forward Purchaser | |||
[Signature Page to Equity Distribution Agreement]
The foregoing Agreement hereby confirmed and accepted as of the date first written above.
| LOOP CAPITAL MARKETS LLC | |||
| By: | /s/ Michael Jackson | ||
| Name: | Michael Jackson | ||
| Title: | Managing Director | ||
| As Manager | |||
[Signature Page to Equity Distribution Agreement]
The foregoing Agreement hereby confirmed and accepted as of the date first written above.
| MIZUHO SECURITIES USA LLC | |||
| By: | /s/ Ivana Rupcic-Hulin | ||
| Name: | Ivana Rupcic-Hulin | ||
| Title: | Managing Director | ||
| As Manager | |||
| MIZUHO MARKETS AMERICAS LLC | |||
| By: | /s/ Matthew Chiavaroli | ||
| Name: | Matthew Chiavaroli | ||
| Title: | Authorized Signatory | ||
| As Forward Purchaser | |||
[Signature Page to Equity Distribution Agreement]
The foregoing Agreement hereby confirmed and accepted as of the date first written above.
| MORGAN STANLEY & CO. LLC | |||
| By: | /s/ Russ Lindberg | ||
| Name: | Russ Lindberg | ||
| Title: | Managing Director | ||
| As Manager | |||
| MORGAN STANLEY & CO. LLC | |||
| By: | /s/ Ellen Weinstein | ||
| Name: | Ellen Weinstein | ||
| Title: | Managing Director | ||
| As Forward Purchaser | |||
[Signature Page to Equity Distribution Agreement]
The foregoing Agreement hereby confirmed and accepted as of the date first written above.
| MUFG SECURITIES AMERICAS INC. | |||
| By: | /s/ Geoffrey Paul | ||
| Name: | Geoffrey Paul | ||
| Title: | Managing Director | ||
| As Manager | |||
| MUFG SECURITIES EMEA PLC | |||
| By: | /s/ Catherine Lucas | ||
| Name: | Catherine Lucas | ||
| Title: | Authorised Signatory | ||
| As Forward Purchaser | |||
[Signature Page to Equity Distribution Agreement]
The foregoing Agreement hereby confirmed and accepted as of the date first written above.
| NOMURA SECURITIES INTERNATIONAL, INC. | |||
| By: | /s/ Jason Eisenhauer | ||
| Name: | Jason Eisenhauer | ||
| Title: | Managing Director | ||
| As Manager | |||
| NOMURA GLOBAL FINANCIAL PRODUCTS, INC. | |||
| By: | /s/ Jeffrey Petillo | ||
| Name: | Jeffrey Petillo | ||
| Title: | Authorized Representative | ||
| As Forward Purchaser | |||
[Signature Page to Equity Distribution Agreement]
The foregoing Agreement hereby confirmed and accepted as of the date first written above.
| RBC CAPITAL MARKETS, LLC | |||
| By: | /s/ J.T. Deignan | ||
| Name: | J.T. Deignan | ||
| Title: | Managing Director | ||
| As Manager | |||
| ROYAL BANK OF CANADA | |||
| By: | /s/ Joe Stoots | ||
| Name: | Joe Stoots | ||
| Title: | Managing Director | ||
| As Forward Purchaser | |||
[Signature Page to Equity Distribution Agreement]
The foregoing Agreement hereby confirmed and accepted as of the date first written above.
| REGIONS SECURITIES LLC | |||
| By: | /s/ Edward L. Armstrong | ||
| Name: | Edward L. Armstrong | ||
| Title: | Managing Director – ECM | ||
| As Manager | |||
| REGIONS SECURITIES LLC | |||
| By: | /s/ Edward L. Armstrong | ||
| Name: | Edward L. Armstrong | ||
| Title: | Managing Director – ECM | ||
| As Forward Purchaser | |||
[Signature Page to Equity Distribution Agreement]
The foregoing Agreement hereby confirmed and accepted as of the date first written above.
| SAMUEL A. RAMIREZ & COMPANY, INC. | |||
| By: | /s/ Richard Viton | ||
| Name: | Richard Viton | ||
| Title: | Managing Director | ||
| As Manager | |||
[Signature Page to Equity Distribution Agreement]
The foregoing Agreement hereby confirmed and accepted as of the date first written above.
| SANTANDER US CAPITAL MARKETS LLC | |||
| By: | /s/ Craig Wiele | ||
| Name: | Craig Wiele | ||
| Title: | Managing Director | ||
| By: | /s/ Robert Torres | ||
| Name: | Robert Torres | ||
| Title: | Executive Director | ||
| As Manager | |||
| BANCO SANTANDER, S.A. | |||
| By: | /s/ William Brett | ||
| Name: | William Brett | ||
| Title: | Authorized Signatory | ||
| By: | /s/ Kyle Espenshade | ||
| Name: | Kyle Espenshade | ||
| Title: | Authorized Signatory | ||
| As Forward Purchaser | |||
[Signature Page to Equity Distribution Agreement]
The foregoing Agreement hereby confirmed and accepted as of the date first written above.
| SCOTIA CAPITAL (USA) INC. | |||
| By: | /s/ Tim Mann | ||
| Name: | Tim Mann | ||
| Title: | Managing Director | ||
| As Manager | |||
| THE BANK OF NOVA SCOTIA | |||
| By: | /s/ Tim Mann | ||
| Name: | Tim Mann | ||
| Title: | Managing Director | ||
| As Forward Purchaser | |||
[Signature Page to Equity Distribution Agreement]
The foregoing Agreement hereby confirmed and accepted as of the date first written above.
| SMBC NIKKO SECURITIES AMERICA, INC. | |||
| By: | /s/ Michelle Petropoulos | ||
| Name: | Michelle Petropoulos | ||
| Title: | Managing Director | ||
| As Manager | |||
[Signature Page to Equity Distribution Agreement]
The foregoing Agreement hereby confirmed and accepted as of the date first written above.
| TD SECURITIES (USA) LLC | |||
| By: | /s/ Chandni Joshi | ||
| Name: | Chandni Joshi | ||
| Title: | Director | ||
| As Manager | |||
| THE TORONTO-DOMINION BANK | |||
| By: | /s/ Michael Murphy | ||
| Name: | Michael Murphy | ||
| Title: | Managing Director | ||
| As Forward Purchaser | |||
[Signature Page to Equity Distribution Agreement]
The foregoing Agreement hereby confirmed and accepted as of the date first written above.
| TRUIST SECURITIES, INC. | |||
| By: | /s/ Geoffrey Fennel | ||
| Name: | Geoffrey Fennel | ||
| Title: | Director | ||
| As Manager | |||
| TRUIST BANK | |||
| By: | /s/ Rakesh Mangat | ||
| Name: | Rakesh Mangat | ||
| Title: | Managing Director | ||
| As Forward Purchaser | |||
[Signature Page to Equity Distribution Agreement]
The foregoing Agreement hereby confirmed and accepted as of the date first written above.
| WELLS FARGO SECURITIES, LLC | |||
| By: | /s/ Rohit Mehta | ||
| Name: | Rohit Mehta | ||
| Title: | Managing Director | ||
| As Manager | |||
| WELLS FARGO BANK, NATIONAL ASSOCIATION | |||
| By: | /s/ Christine Roemer | ||
| Name: | Christine Roemer | ||
| Title: | Managing Director | ||
| As Forward Purchaser | |||
[Signature Page to Equity Distribution Agreement]
SCHEDULE I
Schedule of Free Writing Prospectuses included in the Disclosure Package
None
Sch. I-1
SCHEDULE II
Significant Subsidiaries
Prologis
Prologis, L.P.
Prologis U.S. Logistics Venture, LLC
Prologis Logistics Services Incorporated
PLD International Holding LP
Liberty Property Trust
Liberty Property Limited Partnership
Duke Realty Limited Partnership
Duke Realty LLC
Sch. II-1
ANNEX I
[Form of Terms Agreement]
PROLOGIS, INC.
Common Stock
TERMS AGREEMENT
_____________, 20___
[Academy Securities, Inc.
622 Third Avenue, 12th Floor
New York, New York 10017]
[or]
[BBVA Securities Inc.
Two Manhattan West
375 9th Ave, 9th Floor
New York, New York 10001]
[or]
[BNP Paribas Securities Corp.
787 Seventh Avenue
New York, New York 10019]
[or]
[BofA Securities, Inc.
One Bryant Park
New York, New York 10036]
[or]
[BTIG, LLC
65 East 55th Street
New York, New York 10022]
[or]
[Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013]
[or]
Annex I-1
[Credit Agricole Securities (USA) Inc.
1301 Avenue of the Americas
New York, New York 10019]
[or]
[Goldman Sachs & Co. LLC
200 West Street
New York, New York 10282]
[or]
[HSBC Securities (USA) Inc.
66 Hudson Boulevard
New York, New York 10001]
[or]
[ING Financial Markets LLC
1133 Avenue of the Americas
New York, New York 10036]
[or]
[Jefferies LLC
520 Madison Avenue
New York, New York 10022]
[or]
[J.P. Morgan Securities LLC
270 Park Avenue
New York, New York 10017]
[or]
[Loop Capital Markets LLC
425 South Financial Place, Suite 2700
Chicago, Illinois 60605]
[or]
[Mizuho Securities USA LLC
1271 Avenue of the Americas
New York, New York 10020]
[or]
Annex I-2
[Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036]
[or]
[MUFG Securities Americas Inc.
1221 Avenue of the Americas, 5th Floor
New York, New York 10020]
[or]
[RBC Capital Markets, LLC
200 Vesey Street
New York, New York 10281-8098]
[or]
[Regions Securities LLC
615 South College Street, Suite 600
Charlotte, North Carolina 28202]
[or]
[Samuel A. Ramirez & Company, Inc.
14 East 52nd Street, 5th Floor
New York, New York 10022]
[or]
[Santander US Capital Markets LLC
437 Madison Avenue
New York, New York 10022]
[or]
[Scotia Capital (USA) Inc.
250 Vesey Street, 24th Floor
New York, New York 10281]
[or]
Annex I-3
[SMBC Nikko Securities America, Inc.
277 Park Avenue
New York, New York 10172]
[or]
[TD Securities (USA) LLC
1 Vanderbilt Avenue
New York, New York 10017]
[or]
[Truist Securities, Inc.
50 Hudson Yards, 69th Floor
New York, New York 10001]
[or]
[Wells Fargo Securities, LLC
500 West 33rd Street, 14th Floor
New York, New York 10001]
Dear Sirs:
Prologis, Inc. (the “Company”) proposes, subject to the terms and conditions stated herein and in the Equity Distribution Agreement, dated October 30, 2026 (the “Equity Distribution Agreement”), among the Company, Prologis, L.P. (the “Operating Partnership”) and Academy Securities, Inc., BBVA Securities Inc., BNP Paribas Securities Corp., BofA Securities, Inc., BTIG, LLC, Citigroup Global Markets Inc., Credit Agricole Securities (USA) Inc., Goldman Sachs & Co. LLC, HSBC Securities (USA) Inc., ING Financial Markets LLC, Jefferies LLC, J.P. Morgan Securities LLC, Loop Capital Markets LLC, Mizuho Securities USA LLC, Morgan Stanley & Co. LLC, MUFG Securities Americas Inc., RBC Capital Markets, LLC, Regions Securities LLC, Samuel A. Ramirez & Company, Inc., Santander US Capital Markets LLC, Scotia Capital (USA) Inc., SMBC Nikko Securities America, Inc., TD Securities (USA) LLC, Truist Securities, Inc. and Wells Fargo Securities, LLC to issue and sell [Academy Securities, Inc.] [BBVA Securities Inc.] [BNP Paribas Securities Corp.] [BofA Securities, Inc.] [BTIG, LLC] [Citigroup Global Markets Inc.] [Credit Agricole Securities (USA) Inc.] [Goldman Sachs & Co. LLC] [HSBC Securities (USA) Inc.] [ING Financial Markets LLC] [Jefferies LLC] [J.P. Morgan Securities LLC] [Loop Capital Markets LLC] [Mizuho Securities USA LLC] [Morgan Stanley & Co. LLC] [MUFG Securities Americas Inc.] [RBC Capital Markets, LLC] [Regions Securities LLC] [Samuel A. Ramirez & Company, Inc.] [Santander US Capital Markets LLC] [Scotia Capital (USA) Inc.] [SMBC Nikko Securities America, Inc.] [TD Securities (USA) LLC] [Truist Securities, Inc.] [Wells Fargo Securities, LLC] the securities specified in the Schedule I hereto (the “Purchased Shares”)[, and solely for the purpose of covering over-allotments, to grant to [Academy Securities, Inc.] [BBVA Securities Inc.] [BNP Paribas Securities Corp.] [BofA Securities, Inc.] [BTIG, LLC] [Citigroup Global Markets Inc.] [Credit Agricole Securities (USA) Inc.] [Goldman Sachs & Co. LLC] [HSBC Securities (USA) Inc.] [ING Financial Markets LLC] [Jefferies LLC] [J.P. Morgan Securities LLC] [Loop Capital Markets LLC] [Mizuho Securities USA LLC] [Morgan Stanley & Co. LLC] [MUFG Securities Americas Inc.] [RBC Capital Markets, LLC] [Regions Securities LLC] [Samuel A. Ramirez & Company, Inc.] [Santander US Capital Markets LLC] [Scotia Capital (USA) Inc.] [SMBC Nikko Securities America, Inc.] [TD Securities (USA) LLC] [Truist Securities, Inc.] [Wells Fargo Securities, LLC] the option to purchase the additional securities specified in the Schedule I hereto (the “Additional Shares”)]. [Include only if the Designated Manager has an over-allotment option]
Annex I-4
[[Academy Securities, Inc.] [BBVA Securities Inc.] [BNP Paribas Securities Corp.] [BofA Securities, Inc.] [BTIG, LLC] [Citigroup Global Markets Inc.] [Credit Agricole Securities (USA) Inc.] [Goldman Sachs & Co. LLC] [HSBC Securities (USA) Inc.] [ING Financial Markets LLC] [Jefferies LLC] [J.P. Morgan Securities LLC] [Loop Capital Markets LLC] [Mizuho Securities USA LLC] [Morgan Stanley & Co. LLC] [MUFG Securities Americas Inc.] [RBC Capital Markets, LLC] [Regions Securities LLC] [Samuel A. Ramirez & Company, Inc.] [Santander US Capital Markets LLC] [Scotia Capital (USA) Inc.] [SMBC Nikko Securities America, Inc.] [TD Securities (USA) LLC] [Truist Securities, Inc.] [Wells Fargo Securities, LLC] shall have the right to purchase from the Company all or a portion of the Additional Shares as may be necessary to cover over-allotments made in connection with the offering of the Purchased Shares, at the same purchase price per share to be paid by [Academy Securities, Inc.] [BBVA Securities Inc.] [BNP Paribas Securities Corp.] [BofA Securities, Inc.] [BTIG, LLC] [Citigroup Global Markets Inc.] [Credit Agricole Securities (USA) Inc.] [Goldman Sachs & Co. LLC] [HSBC Securities (USA) Inc.] [ING Financial Markets LLC] [Jefferies LLC] [J.P. Morgan Securities LLC] [Loop Capital Markets LLC] [Mizuho Securities USA LLC] [Morgan Stanley & Co. LLC] [MUFG Securities Americas Inc.] [RBC Capital Markets, LLC] [Regions Securities LLC] [Samuel A. Ramirez & Company, Inc.] [Santander US Capital Markets LLC] [Scotia Capital (USA) Inc.] [SMBC Nikko Securities America, Inc.] [TD Securities (USA) LLC] [Truist Securities, Inc.] [Wells Fargo Securities, LLC] at any time (but not more than once) on or before the thirtieth day following the date hereof, by written notice to the Company. Such notice shall set forth the aggregate number of shares of Additional Shares as to which the option is being exercised, and the date and time when the Additional Shares are to be delivered (such date and time being herein referred to as the “Option Closing Date”); provided, however, that the Option Closing Date shall not be earlier than the Time of Delivery (as set forth in the Schedule I hereto) nor earlier than the second business day after the date on which the option shall have been exercised nor later than the fifth business day after the date on which the option shall have been exercised. Payment of the purchase price for the Additional Shares shall be made at the Option Closing Date in the same manner and at the same office as the payment for the Purchased Shares.] [Include only if the Designated Manager has an over-allotment option]
Each of the provisions of the Equity Distribution Agreement not specifically related to the solicitation by [Academy Securities, Inc.] [BBVA Securities Inc.] [BNP Paribas Securities Corp.] [BofA Securities, Inc.] [BTIG, LLC] [Citigroup Global Markets Inc.] [Credit Agricole Securities (USA) Inc.] [Goldman Sachs & Co. LLC] [HSBC Securities (USA) Inc.] [ING Financial Markets LLC] [Jefferies LLC] [J.P. Morgan Securities LLC] [Loop Capital Markets LLC] [Mizuho Securities USA LLC] [Morgan Stanley & Co. LLC] [MUFG Securities Americas Inc.] [RBC Capital Markets, LLC] [Regions Securities LLC] [Samuel A. Ramirez & Company, Inc.] [Santander US Capital Markets LLC] [Scotia Capital (USA) Inc.] [SMBC Nikko Securities America, Inc.] [TD Securities (USA) LLC] [Truist Securities, Inc.] [Wells Fargo Securities, LLC], as agent of the Company, of offers to purchase securities is incorporated herein by reference in its entirety, and shall be deemed to be part of this Terms Agreement to the same extent as if such provisions had been set forth in full herein. Each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Terms Agreement [and] [,] the Time of Delivery [and any Option Closing Date] [Include only if the Designated Manager has an over-allotment option], except that each representation and warranty in Section 2 of the Equity Distribution Agreement which makes reference to the Prospectus (as therein defined) shall be deemed to be a representation and warranty as of the date of the Equity Distribution Agreement in relation to the Prospectus, and also a representation and warranty as of the date of this Terms Agreement [and] [,] the Time of Delivery [and any Option Closing Date] [Include only if the Designated Manager has an overallotment option] in relation to the Prospectus as amended and supplemented to relate to the Purchased Shares.
Annex I-5
An amendment to the Registration Statement (as defined in the Equity Distribution Agreement), or a supplement to the Prospectus, as the case may be, relating to the Purchased Shares [and the Additional Shares] [Include only if the Designated Manager has an overallotment option], in the form heretofore delivered to the Manager is now proposed to be filed with the Securities and Exchange Commission.
Subject to the terms and conditions set forth herein and in the Equity Distribution Agreement which are incorporated herein by reference, the Company agrees to issue and sell to [Academy Securities, Inc.] [BBVA Securities Inc.] [BNP Paribas Securities Corp.] [BofA Securities, Inc.] [BTIG, LLC] [Citigroup Global Markets Inc.] [Credit Agricole Securities (USA) Inc.] [Goldman Sachs & Co. LLC] [HSBC Securities (USA) Inc.] [ING Financial Markets LLC] [Jefferies LLC] [J.P. Morgan Securities LLC] [Loop Capital Markets LLC] [Mizuho Securities USA LLC] [Morgan Stanley & Co. LLC] [MUFG Securities Americas Inc.] [RBC Capital Markets, LLC] [Regions Securities LLC] [Samuel A. Ramirez & Company, Inc.] [Santander US Capital Markets LLC] [Scotia Capital (USA) Inc.] [SMBC Nikko Securities America, Inc.] [TD Securities (USA) LLC] [Truist Securities, Inc.] [Wells Fargo Securities, LLC] and the latter agrees to purchase from the Company the number of shares of the Purchased Shares at the time and place and at the purchase price set forth in the Schedule I hereto.
Annex I-6
If the foregoing is in accordance with your understanding, please sign and return to us a counterpart hereof, whereupon this Terms Agreement, including those provisions of the Equity Distribution Agreement incorporated herein by reference, shall constitute a binding agreement between the Managers, the Company and the Operating Partnership.
| PROLOGIS, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| PROLOGIS, L.P. | ||
| By: | Prologis, Inc., its general partner | |
| By: | ||
| Name: | ||
| Title: | ||
Annex I-7
| ACCEPTED as of the date first written above. | ||
| [Designated Manager] | ||
| By: | ||
| Name: | ||
| Title: | ||
Annex I-8
Schedule I to the Terms Agreement
Title of Purchased Shares [and Additional Shares]:
Common Stock, par value $0.01 per share
Number of Shares of Purchased Shares:
[Number of Shares of Additional Shares:]
[Price to Public:]
Purchase Price by [Academy Securities, Inc.] [BBVA Securities Inc.] [BNP Paribas Securities Corp.] [BofA Securities, Inc.] [BTIG, LLC] [Citigroup Global Markets Inc.] [Credit Agricole Securities (USA) Inc.] [Goldman Sachs & Co. LLC] [HSBC Securities (USA) Inc.] [ING Financial Markets LLC] [Jefferies LLC] [J.P. Morgan Securities LLC] [Loop Capital Markets LLC] [Mizuho Securities USA LLC] [Morgan Stanley & Co. LLC] [MUFG Securities Americas Inc.] [RBC Capital Markets, LLC] [Regions Securities LLC] [Samuel A. Ramirez & Company, Inc.] [Santander US Capital Markets LLC] [Scotia Capital (USA) Inc.] [SMBC Nikko Securities America, Inc.] [TD Securities (USA) LLC] [Truist Securities, Inc.] [Wells Fargo Securities, LLC]:
Method of and Specified Funds for Payment of Purchase Price:
By wire transfer to a bank account specified by the Company in same day funds.
Method of Delivery:
Free delivery of the Shares to the Manager’s account at The Depository Trust Company in return for payment of the purchase price.
Time of Delivery:
Closing Location:
Documents to be Delivered:
The following documents referred to in the Equity Distribution Agreement shall be delivered as a condition to the closing at the Time of Delivery [and on any Option Closing Date]:
(1) The opinion referred to in Section 4(m).
(2) The opinion referred to in Section 4(n).
(3) The accountants’ letter(s) referred to in Section 4(o).
(4) The officers’ certificate(s) referred to in Section 4(l).
(5) Such other documents as the Manager shall reasonably request.
Annex I-9
ANNEX II
[Form of Non-Contingent Forward Confirmation]
Annex II-1
ANNEX III
[Form of Contingent Master Forward Confirmation]
Annex III-1
ANNEX IV
[Form of Forward Instruction Notice]
From: Prologis, Inc.
To: [Forward Purchaser; Forward Seller]
Subject: Forward Instruction Notice
Ladies and Gentlemen:
Reference is made to the Equity Distribution Agreement, dated [ ], 2026 (the “Sales Agreement”), by and among Prologis, Inc. Prologis, L.P., the Managers and the Forward Purchasers. Capitalized terms used but not otherwise defined herein have the meanings set forth in the Sales Agreement or the Form of Non-Contingent Forward Confirmation set forth in Annex II (in the case of a Non-Contingent Forward Transaction) or the [Form of Contingent Forward Confirmation set forth in Annex III]1 [Master Confirmation, dated [ ], [ ], between Prologis, Inc. and [ ]]2 (in the case of a Contingent Forward Transaction) to the Sales Agreement.
The Company desires to enter into a Forward, including a related [Supplemental] Confirmation substantially consistent with the Form of [Supplemental] Confirmation set forth in the [Sales Agreement] [aforementioned Master Confirmation] on the following terms:
Transaction Type: [Non-Contingent Forward Transaction] [Contingent Forward Transaction]
Number of Trading Days in Forward Hedge Selling Period:
First Date of Forward Hedge Selling Period:
Maximum Number of Securities to be Sold:
| Forward Hedge Amount: | $ |
| Forward Hedge Selling Commission Rate: | % |
| Forward Price Reduction Dates | Forward Price Reduction Amounts | |
| $ | ||
| $ |
| Spread: | |
| Stock loan fee permitting adjustments in the Confirmation: | basis points per annum |
| Stock loan fee triggering a stock borrow event in the Confirmation: | basis points per annum |
| Regular Dividend Amounts: | |
1 NTD: Refer to the Form if no Master Confirmation has been signed with applicable dealer.
2 NTD: Refer to the Master Confirmation if it has been signed with applicable dealer.
Annex IV-1
| For any calendar month ending on or prior to [December 31, 20[ ]]: | $ |
| For any calendar month ending after [December 31, 20[ ]]: | $ |
Maturity Date:
Floor price (adjustable by Company during the Forward Hedge Selling Period, and in no event less than $1.00 per share): $ per share
Requested Contingent Forward Terms, if any:
ADDITIONAL SALES PARAMETERS MAY BE ADDED, SUCH AS THE TIME PERIOD IN WHICH SALES ARE REQUESTED TO BE MADE, SPECIFIC DATES THE SECURITIES MAY NOT BE SOLD ON, THE MANNER IN WHICH SALES ARE TO BE MADE BY THE FORWARD SELLER
Annex IV-2
EXHIBIT A
Form of Opinion of Company Counsel to be delivered pursuant to Section 6(b)(i) of the Equity Distribution Agreement
Exhibit A-1
EXHIBIT B
Form of Opinion of the General Counsel of the Company to be delivered pursuant to Section 6(b)(ii) of the Equity Distribution Agreement
Exhibit B-1
Exhibit 5.1
October 30, 2026
Prologis, Inc.
Pier 1, Bay 1
San Francisco, California 94111
Re: Registration Statement on Form S-3 (File No. 333-289636)
Ladies and Gentlemen:
We have served as Maryland counsel to Prologis, Inc., a Maryland corporation (the “Company”), in connection with certain matters of Maryland law arising out of the registration of up to $5,000,000,000 aggregate offering price in shares (the “Shares”) of common stock, par value $0.01 per share, of the Company (the “Common Stock”), covered by the above-referenced Registration Statement, and all amendments thereto (the “Registration Statement”), filed by the Company, Prologis, L.P., a Delaware limited partnership (the “Operating Partnership”), Prologis Euro Finance LLC, a Delaware limited liability company, Prologis Yen Finance LLC, a Delaware limited liability company, and Prologis Sterling Finance LLC, a Delaware limited liability company, with the United States Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”). The Shares are to be issued from time to time pursuant to the Prospectus Supplement and the Distribution Agreement (each as defined herein) in one or more transactions deemed to be “at the market” offerings (each, an “Offering” and, collectively, the “Offerings”) under Rule 415 of the 1933 Act.
In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (collectively, the “Documents”):
1. The Registration Statement;
2. The Prospectus, dated August 15, 2025, as supplemented by a Prospectus Supplement, dated October 30, 2026 (the “Prospectus Supplement”), filed with the Commission pursuant to Rule 424(b) of the General Rules and Regulations promulgated under the 1933 Act;
3. The charter of the Company (the “Charter”), certified by the State Department of Assessments and Taxation of Maryland (the “SDAT”);
4. The Eleventh Amended and Restated Bylaws of the Company, certified as of the date hereof by an officer of the Company;
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5. A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;
6. Resolutions adopted by the Board of Directors of the Company relating to, among other matters, (a) the authorization of the sale, issuance and registration of all Shares issued and sold through the Managers (as defined herein) pursuant to the Distribution Agreement (the “Offering Shares”) and the issuance of any Confirmation Shares (as defined in the Distribution Agreement), (b) the authorization of the execution, delivery and performance of the Distribution Agreement and any Confirmations (as defined herein) and (c) the delegation to certain officers of the Company (the “Authorized Officers”) of the power to determine, subject to certain parameters, the number of Shares and the offering price of each Share to be sold in each Offering (the “Resolutions”), certified as of the date hereof by an officer of the Company;
7. The Equity Distribution Agreement, dated as of October 30, 2026 (the “Distribution Agreement”), among the Company and Prologis, L.P., a Delaware limited partnership (the “Operating Partnership”), on the one hand, and Academy Securities, Inc., BBVA Securities Inc., BNP Paribas Securities Corp., BNY Mellon Capital Markets, LLC (acting through Academy Securities, Inc., as its sales agent), BofA Securities, Inc., BTIG, LLC, Citigroup Global Markets Inc., Credit Agricole Securities (USA) Inc., Goldman Sachs & Co. LLC, HSBC Securities (USA) Inc., ING Financial Markets LLC, Jefferies LLC, J.P. Morgan Securities LLC, Loop Capital Markets LLC, Mizuho Securities USA LLC, Morgan Stanley & Co. LLC, MUFG Securities Americas Inc., Nomura Securities International, Inc. (acting through BTIG, LLC, as its sales agent), RBC Capital Markets, LLC, Regions Securities LLC, Samuel A. Ramirez & Company, Inc., Santander US Capital Markets LLC, Scotia Capital (USA) Inc., SMBC Nikko Securities America, Inc., TD Securities (USA) LLC, Truist Securities, Inc. and Wells Fargo Securities, LLC, as managers (collectively, the “Managers”), and Banco Bilbao Vizcaya Argentaria, S.A., BNP Paribas, Bank of America, N.A., Citibank, N.A., Crédit Agricole Corporate and Investment Bank, Goldman Sachs & Co. LLC, HSBC Bank USA, National Association, Jefferies LLC, JPMorgan Chase Bank, National Association, Mizuho Markets Americas LLC, Morgan Stanley & Co. LLC, MUFG Securities EMEA plc, Nomura Global Financial Products, Inc., Royal Bank of Canada, Regions Securities LLC, Banco Santander, S.A., The Bank of New York Mellon, The Bank of Nova Scotia, The Toronto-Dominion Bank, Truist Bank and Wells Fargo Bank, National Association, as forward purchasers (each, a “Forward Purchaser” and, collectively, the “Forward Purchasers”), on the other hand;
8. The forms of ATM Forward Confirmations which may be entered into by and between the Company and the applicable Forward Purchaser in relation to any forward stock purchase transaction (each, a “Confirmation” and, collectively, the “Confirmations”);
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9. A certificate executed by an officer of the Company, dated as of the date hereof; and
10. Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed the following:
1. Each individual executing any of the Documents, whether on behalf of such individual or another person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so.
3. Each of the parties (other than the Company) executing any of the Documents has duly and validly executed and delivered each of the Documents to which such party is a signatory, and such party’s obligations set forth therein are legal, valid and binding and are enforceable in accordance with all stated terms.
4. All Documents submitted to us as originals are authentic. The form and content of all Documents submitted to us as unexecuted drafts do not differ in any respect relevant to this opinion from the form and content of such Documents as executed and delivered. All Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All representations, warranties, statements and information contained in the Documents are true and complete. There has been no oral or written modification of or amendment to any of the Documents, and there has been no waiver of any provision of any of the Documents, by action or omission of the parties or otherwise.
5. The Offering Shares and any Confirmation Shares will not be issued or transferred in violation of any restriction or limitation contained in Article IV of the Charter.
6. Upon the issuance of any of the Offering Shares or Confirmation Shares, the total number of shares of Common Stock issued and outstanding will not exceed the total number of shares of Common Stock that the Company is then authorized to issue under the Charter.
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Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:
1. The Company is a corporation, duly incorporated and existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT.
2. The issuance and sale of the Offering Shares pursuant to the Distribution Agreement and the issuance and delivery of any Confirmation Shares pursuant to any Confirmation have been duly authorized and, when and to the extent issued against payment therefor in accordance with the Registration Statement, the Prospectus Supplement, the Distribution Agreement, any Forward Instruction Notice (as defined in the Distribution Agreement), the Confirmations, the Resolutions and any instructions from the Authorized Officers, the Offering Shares and the Confirmation Shares will be validly issued, fully paid and nonassessable.
The foregoing opinion is limited to the laws of the State of Maryland and we do not express any opinion herein concerning federal law or the laws of any other state. We express no opinion as to the applicability or effect of federal or state securities laws, including the securities laws of the State of Maryland. To the extent that any matter as to which our opinion is expressed herein would be governed by the laws of any jurisdiction other than the State of Maryland, we do not express any opinion on such matter. The opinion expressed herein is subject to the effect of any judicial decision which may permit the introduction of parol evidence to modify the terms or the interpretation of agreements.
The opinion expressed herein is limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.
This opinion is being furnished to you for submission to the Commission as an exhibit to the Company’s Current Report on Form 8-K relating to the Offerings (the “Current Report”), which is incorporated by reference in the Registration Statement. We hereby consent to the filing of this opinion as an exhibit to the Current Report and the said incorporation by reference and to the use of the name of our firm therein. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the 1933 Act.
| Very truly yours, |
| /s/ Venable LLP |