Common use of Issuance and Sale Clause in Contracts

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

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

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

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

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

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

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

Issuance and Sale. (a) Upon the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein and provided the Company provides the Subject applicable Agent with any due diligence materials and information reasonably requested by the Subject such Agent or its counsel necessary for the Subject such Agent to satisfy its due diligence obligations, on any Exchange Business Day (as defined below) selected by the Company, the Company and the Subject such Agent shall enter into an agreement in accordance with Section 2 hereof regarding the number of Shares to be placed by the Subject such Agent, as agent, and the manner in which and other terms upon which such placement is to occur (each such transaction being referred to as an “Agency Transaction”). The Company may also (i) offer to sell the Shares directly to the Subject an Agent, as principal, in which event such parties shall enter into a separate agreement (each, a “Terms Agreement”) in substantially the form of Exhibit A hereto (with such changes thereto as may be agreed upon by the Company and the Subject such Agent to accommodate a transaction involving more than one Agentadditional underwriters), relating to such sale in accordance with Section 2(g) of this Agreement (each such transaction being referred to as a “Principal Transaction”). Whenever the Company determines to sell the Shares directly to an Alternative Agent as principal, it will ) or (ii) enter into a separate agreement one or more forward stock purchase transactions (each, an a “Alternative Terms AgreementForward Transaction”) with a Forward Purchaser as set forth in substantially the a separate letter agreement, a form of which is attached hereto as Exhibit A to B (each, a “Confirmation”, and together the applicable Amended and Restated Alternative Distribution Agreement (with such changes thereto as may be agreed upon by the Company and the Alternative Agent party thereto to accommodate a transaction involving more than one Agent“Confirmations”). As used herein, (i) the “Term” shall be the period commencing on the date hereof and ending on the earlier of (x) the date on which the aggregate number Gross Sales Price of Shares issued and sold pursuant to the Distribution Agreementsthis Agreement, any Terms Agreements Agreement and any Alternative Terms Agreements Confirmation is equal to the Maximum Number Amount and (y) any termination of this Agreement pursuant to Section 88 hereof, (ii) an “

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