Exhibit 1.1
CORPORATE OFFICE PROPERTIES TRUST
Common Shares of Beneficial Interest
SALES AGREEMENT
May 16, 2022
Barclays
Capital Inc.
745 Seventh Avenue
New York, New York 10019
Ladies and Gentlemen:
Corporate Office Properties Trust, a Maryland real estate investment trust (the “Company”), and Corporate Office Properties, L.P., a Delaware limited partnership (the “Operating Partnership”) confirm their agreement (this “Agreement”) with Barclays Bank PLC (in its capacity as purchaser under any Forward Contract (as defined below), the “Forward Purchaser”) and Barclays Capital Inc. (in its capacity (i) as agent for the Company and/or principal in connection with the offering and sale of any Issuance Shares (as defined below) hereunder, the “Agent,” and (ii) as agent for the Forward Purchaser in connection with the offering and sale of any Forward Hedge Shares (as defined below) hereunder, the “Forward Seller”), as set forth in this Agreement. The Company has authorized and proposes to sell and/or issue in the manner contemplated by this Agreement common shares of beneficial interest, par value $0.01 per share (the “Common Shares”), having an aggregate offering price of up to $300,000,000 (the “Maximum Amount”) on the terms set forth in Section 2 of this Agreement. The Issuance Shares and the Forward Hedge Shares sold pursuant to this Agreement shall be referred to herein as the “Stock”. The Company agrees that if it determines that the Agent will purchase any shares of Stock on a principal basis, then it will enter into a separate underwriting or similar agreement in form and substance satisfactory to both the Company and the Agent covering such purchase.
The Company and the Operating Partnership, have also entered into separate sales agreements (collectively, the “Separate Sales Agreements”), dated as of even date herewith, with BofA Securities, Inc., BTIG, LLC, Capital One Securities, Inc., Citigroup Global Markets Inc., J.P. Morgan Securities LLC, KeyBanc Capital Markets Inc., Regions Securities LLC, TD Securities (USA) LLC and Wells Fargo Securities, LLC (and their respective affiliates) (each, in its capacity as agent and/or principal, forward seller and forward purchaser thereunder, the “Separate Agents”) for the issuance (in the case of the Issuance Shares) or borrowing (in the case of Forward Hedge Shares) and sale from time to time of Common Shares through the applicable Separate Agents on the terms set forth in the applicable Separate Sales Agreements. The Company and the Operating Partnership may also in the future enter into additional sales agreements (if any, the “Additional Sales Agreements” and, together with the Separate Sales Agreements, the “Alternative Sales Agreements”) with one or more additional agents and/or principals, forward sellers and forward purchasers (if any, collectively in each such capacity, the “Additional Agents” and together with the Separate Agents, the “Alternative Agents”). The aggregate offering price of the Stock that may be sold pursuant to this Agreement and the Alternative Sales Agreements shall not exceed the Maximum Amount.
For purposes of this Agreement, capitalized terms used herein and not otherwise defined shall have the following respective meanings:
“Actual Sold Forward Amount” means, for any Forward Hedge Selling Period for any Forward, the number of Forward Hedge Shares that a Forward Seller has sold during such Forward Hedge Selling Period.
“Delivery Date” means any Forward Hedge Settlement Date or any Issuance Share Delivery Date.
“Forward” means the transaction resulting from a Forward Placement Notice requiring a Forward Seller to sell the Forward Hedge Shares as specified in such Placement Notice, subject to the terms and conditions of this Agreement and the applicable Forward Contract.
“Forward Contract” means, for each Forward, the contract evidencing such Forward between the Company and a Forward Purchaser, which shall be comprised of the Master Forward Confirmation and the related “Supplemental Confirmation” (as defined in the Master Forward Confirmation) for such Forward.
“Forward Date” means any Trading Day that a Forward Placement Notice is delivered or deemed to be delivered pursuant to Section 2(b).
“Forward Hedge Amount” means the aggregate Sales Price of the Forward Hedge Shares to be sold by a Forward Seller with respect to any Forward as specified in the Forward Placement Notice for such Forward, subject to the terms and conditions of this Agreement.
“Forward Hedge Price” means, for any Forward Contract, the product of (x) an amount equal to one (1) minus the Forward Hedge Selling Commission Rate for such Forward Contract; and (y) the “Volume-Weighted Hedge Price” (as defined in the Master Forward Confirmation) for such Forward Contract.
“Forward Hedge Selling Commission” means, for any Forward Contract, the product of (x) the Forward Hedge Selling Commission Rate for such Forward Contract and (y) the “Volume-Weighted Hedge Price” (as defined in the Master Forward Confirmation) for such Forward Contract.
“Forward Hedge Selling Commission Rate” means, for any Forward Contract, a rate mutually agreed between the Company and a Forward Seller, not to exceed 2.0%.
“Forward Hedge Selling Period” means the period of consecutive Trading Days (as determined by the Company in the Company’s sole discretion and specified in the applicable Forward Placement Notice) beginning on, and including, the Trading Day, immediately following the Trading Day on which such Forward Placement Notice is delivered or deemed to be delivered pursuant to Section 2(b); provided, that if, prior to the scheduled end of any Forward Hedge Selling Period (x) any event occurs that would permit the Forward Purchaser to designate a “Scheduled Trading Day” as a “Termination Settlement Date” (as each such term is defined in the Master Forward Confirmation) under, and pursuant to, the provisions opposite the caption “Termination Settlement” in the Master Forward Confirmation or (y) an “Insolvency Filing” (as such term is defined in the Master Forward Confirmation) occurs, then the Forward Hedge Selling Period shall immediately terminate as of the first such occurrence (or, if later, when persons at the Forward Seller responsible for executing sales of Forward Hedge Shares become aware of such occurrence).
“Forward Hedge Settlement Date” means the second Trading Day (or such earlier day as is industry practice for regular-way trading or is otherwise then required by the Rules and Regulations (as defined below) and the Exchange Act (as defined below)) following each Trading Day during the applicable Forward Hedge Selling Period on which a Forward Seller sells any Forward Hedge Shares pursuant to this Agreement.
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“Forward Hedge Shares” means all Common Shares borrowed by a Forward Purchaser or its affiliate and offered and sold by the Forward Seller in connection with any Forward that has occurred or may occur in accordance with the terms and conditions of this Agreement.
“Forward Placement Notice” means a written notice to the Forward Purchaser and a Forward Seller, as applicable, delivered in accordance with this Agreement in the form attached as Exhibit B specifying that it relates to a “Forward” and requiring a Forward Seller to use its commercially reasonable efforts to sell Forward Hedge Shares.
“Forward Purchaser” has the meaning set forth in the introductory paragraph of this Agreement. If a Forward Purchaser has not been identified in the introductory paragraph of this Agreement, the Company agrees that all provisions of this Agreement related to the Forward Purchaser are not applicable hereunder.
“Forward Seller” has the meaning set forth in the introductory paragraph of this Agreement. If a Forward Seller has not been identified in the introductory paragraph of this Agreement, the Company agrees that all provisions of this Agreement related to the Forward Seller are not applicable hereunder.
“Issuance Shares” means all shares of Common Stock issued and sold through an Agent in accordance with the terms and conditions of this Agreement.
“Master Forward Confirmation” means the Master Confirmation, dated as of the date hereof, by and between the Company and the Forward Purchaser, including all provisions incorporated by reference therein, substantially in the form attached as Exhibit C.
“Sales Price” means, for each Forward Hedge Share or each Issuance Share, the actual sale execution price of each Forward Hedge Share or Issuance Share, respectively, sold by a Forward Seller or an Agent, as applicable, on the New York Stock Exchange, in the case of ordinary brokers’ transactions, or as otherwise agreed by the parties in other methods of sale.
“Trading Day” means any day which is a trading day on the New York Stock Exchange, other than a day on which trading is scheduled to close prior to its regular weekday closing time.
1. A. Representations, Warranties and Agreements of the Company and the Operating Partnership. Each of the Company and the Operating Partnership jointly and severally represent, warrant and agree that:
(a) An “automatic shelf registration statement” on Form S-3 as defined under Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”) (No. 333-264198) relating to the Stock being sold by the Company, including a base prospectus, has been filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act and such Registration Statement became effective upon filing with the Commission. For purposes of this Agreement:
(i) “Applicable Time” means, with respect to any shares of Stock, each time of sale of such shares pursuant to this Agreement;
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(ii) “Base Prospectus” means the base prospectus filed as part of the Registration Statement, in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement;
(iii) “Effective Date” means any date as of which any part of such registration statement relating to the Stock became, or is deemed to have become, effective under the Securities Act in accordance with the rules and regulations of the Commission under the Securities Act (the “Rules and Regulations”);
(iv) “Effective Time” means the date and time as of which the registration statement became effective upon filing with the Commission;
(v) “Issuer Free Writing Prospectus” means each “free writing prospectus” (as defined in Rule 405 under the Securities Act) prepared by or on behalf of the Company or used or referred to by the Company in connection with the offering of the Stock;
(vi) “Pricing Disclosure Package” means, as of each Applicable Time, the Prospectus and each Issuer Free Writing Prospectus filed or used by the Company on or before such Applicable Time, taken together (collectively, and, with respect to any shares of Stock, together with the public offering price of such shares), other than a road show that is an Issuer Free Writing Prospectus but is not required to be filed under Rule 433 under the Securities Act;
(vii) “Prospectus” means the Base Prospectus, as amended and supplemented by the Prospectus Supplement, in the form in which such Base Prospectus and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) (“Rule 424(b)”) under the Securities Act;
(viii) “Prospectus Supplement” means the prospectus supplement specifically relating to the Stock prepared and filed with the Commission pursuant to Rule 424(b), in the form most recently filed by the Company with the Commission; and
(ix) “Registration Statement” means, collectively, the various parts of such registration statement, each as amended as of the Effective Date for such part, including any Prospectus and all exhibits to such registration statement, including the information deemed by virtue of Rule 430B under the Securities Act to be part of such registration statement as of the Effective Date, and including any amendments thereto filed prior to any such time any representation made under this Agreement is repeated or deemed to be made.
All references in this Agreement to the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendments or supplements to any of the foregoing, shall be deemed to refer to and include any documents included therein or deemed to be incorporated by reference therein, and shall include any copy thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”). The Company meets the requirements for the use of Form S-3 under the Securities Act and the Registration Statement meets the requirements of, and complies in all material respects with, Rule 415(a)(1)(x) under the Securities Act.
All references in this Agreement to financial statements and schedules and other information which is “contained,” “included” or “stated” in the Registration Statement or the Prospectus (or other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is incorporated by reference in or otherwise deemed by the Rules and Regulations to be a part of or included in the Registration Statement or the Prospectus, as the case may be; and all references in this Agreement to amendments or supplements to the Registration Statement or the Prospectus shall be deemed to mean and include the filing of any document under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or the rules and regulations of the Commission under the Exchange Act (the “Exchange Act Regulations”) which is incorporated by reference in or otherwise deemed by the Rules and Regulations to be a part of or included in the Registration Statement or the Prospectus, as the case may be.
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To the extent that the Registration Statement is not available for the sales of Common Shares as contemplated by this Agreement or the Company or the Operating Partnership is not a “well-known seasoned issuer” as defined in Rule 405 or otherwise is unable to make the representations set forth in Section 1(A)(a) of this Agreement at any time when such representations are required, the Company shall file a new registration statement with respect to any additional Common Shares necessary to complete such sales of the Stock 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.
(b) On each Effective Date and on each Delivery Date, the Registration Statement (and with respect to each Effective Date, the part of the Registration Statement relating to the Stock) complied and will comply, and at the Effective Time of any amendment to the Registration Statement filed after the date hereof will comply, as to form in all material respects to the requirements of the Securities Act and the Rules and Regulations and did not, as of any Effective Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading. At the time of filing of the Prospectus pursuant to Rule 424(b) and on each Delivery Date, the Prospectus complied and will comply as to form, in all material respects, to the requirements of the Securities Act and the Rules and Regulations, and did not and will not, as of its date or as of any Delivery Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances in which they were made. The Pricing Disclosure Package does not, and will not, as of any Applicable Time, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary 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 Registration Statement, the Prospectus or the Pricing Disclosure Package based upon written information furnished to the Company by the Agent, the Forward Purchaser or the Forward Seller specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 6(b) hereof. The Prospectus and Issuer Free Writing Prospectus delivered to the Agent, the Forward Purchaser or the Forward Seller for use in connection with this offering was identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(c) Each Issuer Free Writing Prospectus conformed or will conform in all material respects to the requirements of the Securities Act and the Rules and Regulations on the date of first use, and the Company has complied with all prospectus delivery and any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the Securities Act and the Rules and Regulations. Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Stock or until any earlier date that the Company notified or notifies the Agent, the Forward Purchaser and the Forward Seller did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein and any other prospectus supplement deemed to be a part thereof that has not been superseded or modified. The Company has not made any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Agent, the Forward Purchaser and the Forward Seller. The Company has retained in accordance with the Securities Act all Issuer Free Writing Prospectuses that were not required to be filed pursuant to the Securities Act. The Company has taken all actions necessary so that any “road show” (as defined in Rule 433) in connection with the offering of the Stock will not be required to be filed pursuant to the Securities Act.
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(d) (A) At the respective times the Registration Statement or any amendments thereto were filed with the Commission, (B) at the time of the most recent amendment to the Registration Statement for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (C) at any 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 Stock in reliance on the exemption of Rule 163 and (D) at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405, including not having been and not being an “ineligible issuer” as defined in Rule 405 (without taking into account any determination made by the Commission pursuant to paragraph (2) of the definition of such term in Rule 405). The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 and the Stock, since their registration on the Registration Statement, have been and remain eligible for registration by the Company on such an “automatic shelf registration statement.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) objecting to the use of the automatic shelf registration statement form. Any written communication that was an offer relating to the Stock made by the Company or any person acting on its behalf (within the meaning, for this sentence only, of Rule 163(c)) prior to the filing of the Registration Statement has been filed with the Commission in accordance with Rule 163 and otherwise complied with the requirements of Rule 163, including without limitation the legending requirement, to qualify such offer for the exemption from Section 5(c) of the Securities Act provided by Rule 163.
(e) The Prospectus shall incorporate by reference the most recent Annual Report of the Company on Form 10-K filed with the Commission, each Quarterly Report of the Company on Form 10-Q and each Current Report of the Company on Form 8-K filed with the Commission since the filing of the Annual Report. The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the Prospectus and the Pricing Disclosure Package, at the time they were or hereafter are filed with the Commission, complied and shall comply in all material respects with the requirements of the Exchange Act and the Exchange Act Regulations and, when read together with the other information in the Prospectus and the Pricing Disclosure Package, at the time the Registration Statement became effective or were filed with the Commission, as the case may be, did not and shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) The Registration Statement is not the subject of a pending proceeding or examination under Section 8(d) or 8(e) of the Securities Act, and the Operating Partnership is not the subject of a pending proceeding under Section 8A of the Securities Act in connection with the offering of the Stock.
(g) No stop order suspending the effectiveness of the Registration Statement or any part thereof, including any amendments thereto filed prior to the Effective Date or prior to any such time this representation is repeated or deemed to be made, has been issued and, to the knowledge of the Company, no proceeding for that purpose has been instituted or threatened by the Commission or by the state securities authority of any jurisdiction. No order preventing or suspending the use of the Prospectus has been issued and, to the knowledge of the Company, no proceeding for that purpose has been instituted or threatened by the Commission or by the state securities authority of any jurisdiction.
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(h) The Company has been duly organized and is an existing real estate investment trust in good standing under the laws of the State of Maryland, with power and authority as a real estate investment trust to own its properties and conduct its business as described in the Prospectus and the Pricing Disclosure Package; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified would not reasonably be expected to have a material adverse effect on (i) the condition (financial or other), business, properties, prospects, net worth or results of operations of the Company and its Subsidiaries (as hereinafter defined) taken as a whole, (ii) the issuance or validity of the Stock or (iii) the consummation of any of the transactions contemplated by this Agreement or the Master Forward Confirmation (and each “Supplemental Confirmation” under the Master Forward Confirmation) (Collectively, the “Transaction Documents”) to be performed by the Company and/or the Subsidiaries, as applicable (individually or collectively, a “Material Adverse Effect”).
(i) Each subsidiary of the Company is listed on Schedule I hereto (each, a “Subsidiary” and collectively the “Subsidiaries”) and has been duly organized and is validly existing as a corporation, limited partnership or other legal entity, as the case may be, in good standing under the laws of its respective jurisdiction of incorporation or formation, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus and the Pricing Disclosure Package; and each Subsidiary is duly qualified to do business as a foreign corporation, limited partnership or other legal entity, as the case may be, in good standing in all other jurisdictions in which such Subsidiary’s ownership or lease of property or the conduct of such Subsidiary’s business requires such qualification, except where the failure to be so qualified would not reasonably be expected to have a Material Adverse Effect. The issued and outstanding common and preferred units of limited partnership interest in the Operating Partnership (“Units”) and other equity interests, as the case may be, of each of the other Subsidiaries have been duly authorized and validly issued, are, with respect to corporate Subsidiaries, fully paid and nonassessable and, except as otherwise set forth in the Prospectus and the Pricing Disclosure Package or reflected in the financial statements contained in, or incorporated by reference in, the Prospectus and the Pricing Disclosure Package, are owned beneficially by the Company, directly or indirectly through one or more Subsidiaries, free and clear of any security interests, liens, encumbrances, equities or claims, except for security interests, liens, encumbrances, equities or claims pursuant to the terms of a bona fide financing transaction.
(j) Complete and correct copies of the declaration of trust and of the bylaws of the Company, the certificate of limited partnership and agreement of limited partnership of the Operating Partnership and the charter documents, partnership agreements and other organizational documents of the other Subsidiaries, as applicable, and all amendments thereto as have been requested by the Agent, the Forward Purchaser or the Forward Seller or their respective counsel have been delivered to the Agent, the Forward Purchaser or the Forward Seller or their respective counsel, as applicable. As of each Delivery Date, the partnership agreement of the Operating Partnership, as amended, will have been duly authorized, executed and delivered by the Company, as the general partner and as a limited partner and (assuming it has been duly authorized, executed and delivered by each of the other parties thereto, and is a legal, valid and binding agreement of each such other party) in full force and effect, subject to (i) the effect of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting the rights and remedies of creditors, (ii) the effect of general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefore may be brought and (iii) the provisions of the Delaware Revised Uniform Limited Partnership Act.
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(k) The Company has an authorized, issued and outstanding capitalization as set forth in the Prospectus and the Pricing Disclosure Package. All of the issued and outstanding shares of beneficial interest of the Company have been duly authorized and validly issued and are fully paid and nonassessable. The Issuance Shares and the Forward Hedge Shares have been, or will have been at the time such Stock is issued, duly authorized by the Company for issuance and sale pursuant to this Agreement or the Forward Contract, as the case may be, and, when issued and delivered pursuant to this Agreement or the Forward Contract, as the case may be, against payment of the consideration therefor specified herein or therein, will be validly issued, fully paid and non-assessable, and will conform to the description thereof contained in the Registration Statement, the Prospectus and the Pricing Disclosure Package and such descriptions conform to the rights set forth in the instruments defining the same, and such description will be, complete and accurate in all material respects; the shareholders of the Company have no preemptive rights with respect to the Stock; and, no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Securities Act in the public offering contemplated by this Agreement. The descriptions of the Company’s stock option, stock bonus and other stock plans or arrangements, and the options or other rights granted thereunder, set forth or incorporated by reference in the Pricing Disclosure Package and the Prospectus accurately and fairly present the information required to be shown with respect to such plans, arrangements, options and rights.
(l) Except for the Company Registration Rights Agreement (as defined below), there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the Registration Statement or in any other registration statement filed by the Company under the Securities Act. Any notices required to be given under the Company Registration Rights Agreement were given and no person with rights thereunder, has exercised any such rights. The “Company Registration Rights Agreement” shall mean the Amended and Restated Registration Rights Agreement, dated March 16, 1998, of Corporate Office Properties Trust for the benefit of Holders of the Partnership Units and Preferred Units of Corporate Office Properties, L.P. and Holders of Common Shares of Beneficial Interest of Corporate Office Properties Trust.
(m) Except as disclosed in the Pricing Disclosure Package and the Prospectus or as provided in this Agreement, or not disclosed because not material, the Company and its Subsidiaries do not have outstanding, and will not have outstanding (A) securities or obligations of the Company or any of its Subsidiaries convertible into or exchangeable for any shares of beneficial interest of the Company or other equity interests of any such Subsidiary, (B) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such shares of beneficial interest or equity interests or any such convertible or exchangeable securities or obligations (except for options issued subsequent to December 31, 2003 under the Company’s established stock option plans), or (C) obligations of the Company or any such Subsidiary to issue any shares of beneficial interest or equity interests, any such convertible or exchangeable securities or obligations, or any such warrants, rights or options. The form of share certificates to be used to evidence the Common Shares will be in due and proper form and will comply, in all material respects, with all applicable legal requirements. Other than shares of beneficial interest of the Company issuable (i) upon exercise of share options pursuant to the Company’s stock-based plans for its employees and trustees, (ii) upon the redemption of Units (iii) upon the exchange of notes issued by the Operating Partnership or (iv) pursuant to this Agreement and the Master Forward Confirmation (and each “Supplemental Confirmation” under the Master Forward Confirmation), no shares of beneficial interest of the Company are reserved for any purpose, except as disclosed in the Prospectus and the Pricing Disclosure Package.
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(n) The execution, delivery and performance of each of the Transaction Documents by the Company and the Operating Partnership, as applicable, the issuance, offering and sale of the Issuance Shares by the Company through the Agent pursuant to this Agreement, the issuance, sale and delivery of any Forward Hedge Shares, the compliance by the Company and the Operating Partnership with the other provisions of each of the Transaction Documents, the application of the proceeds from the sale of the Stock as described under “Use of Proceeds” in the Prospectus and the Pricing Disclosure Package and the consummation of the other transactions herein contemplated to be performed by the Company and the Operating Partnership do not and will not (i) require any material governmental license, permit, consent, approval, authorization or other order of, registration, filing or qualification with, any court or governmental body or agency (except such as have been obtained or may be required under the Securities Act and the Exchange Act, securities, blue sky or real estate syndication laws of the various states, the bylaws and rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”) or the requirements of the New York Stock Exchange, Inc. (“NYSE”)), (ii) result in the creation or imposition of any lien, charge or encumbrance upon any of the assets or properties of the Company or any of the Subsidiaries pursuant to the terms or provisions of, or conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under (whether with or without the giving of notice or passage of time or both, would constitute a default under any of the foregoing), or give any other party a right to terminate any of its obligations under, or result in the acceleration of any obligation under, the charter, declaration of trust, bylaws, partnership agreement or other organizational document of the Company or any of the Subsidiaries or in the performance or observance of any obligation, covenant, agreement or condition contained in any indenture, loan agreement, mortgage, bond, debenture, note agreement, joint venture or partnership agreement, lease or other agreement or instrument that is material to the Company and the Subsidiaries, taken as a whole, to which the Company or any of the Subsidiaries is a party or by which the Company or any of the Subsidiaries or their respective property is bound or, (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order, statute, administrative regulation or decree of any court or any governmental body or agency (foreign or domestic) having jurisdiction over the Company, any of the Subsidiaries or their respective property, in each case (other than with respect to breaches or violations of the terms of the charter, declaration of trust, bylaws, partnership agreement or other organizational document of the Company or any of the Subsidiaries) except for requirements, liens, charges, encumbrances, breaches, violations, defaults, rights to terminate or accelerate obligations, or conflicts, the imposition or occurrence of which would not have a Material Adverse Effect.
(o) Each of the Company and the Operating Partnership has full trust or partnership power, as the case may be, to enter into the Transaction Documents to which it is a party, and to carry out all of the terms and provisions hereof and thereof to be carried out by them. Each Transaction Document has been duly and validly authorized, executed and delivered by each of the Company and the Operating Partnership, as applicable, and constitutes a valid and binding agreement of each of the Company and the Operating Partnership, as the case may be, and assuming due authorization, execution and delivery by the Agent, the Forward Purchaser or the Forward Seller, as the case may be, is enforceable against the Company and the Operating Partnership, as applicable, in accordance with the terms hereof and thereof subject to (i) the effect of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting the rights and remedies of creditors and (ii) the effect of general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefor may be brought.
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(p) When the Stock is delivered and paid for pursuant to this Agreement, or the Master Forward Confirmation (and each “Supplemental Confirmation” under the Master Forward Confirmation), as the case may be, the Company and each of its Subsidiaries will have good and marketable title in fee simple to all items of real property and valid title to all personal property and assets owned by each of them, in each case free and clear of any security interests, liens, encumbrances, equities, claims and other defects, except such as where the failure to have such title would not result in a Material Adverse Effect or materially and adversely affect the value of such property or materially interfere with the use made or proposed to be made of such property by the Company or such Subsidiary (except in each case liens securing indebtedness of the Company or its Subsidiaries as reflected in its financial statements included in the Prospectus, the Registration Statement and the Pricing Disclosure Package or mortgage indebtedness incurred by the Company or its Subsidiaries in the ordinary course of its business), and any real property and buildings held under lease by the Company or any such Subsidiary will be held under valid, subsisting and enforceable leases, except where the invalidity, non-subsistence or non-enforceability would not result in a Material Adverse Effect or materially interfere with the use made or proposed to be made of such property and buildings by the Company or such Subsidiary, in each case except as described in or contemplated by the Prospectus and the Pricing Disclosure Package. To the knowledge of the Company and the Operating Partnership, except as disclosed in the Prospectus and the Pricing Disclosure Package: (i) no lessee of any portion of the properties is in material default under any of the leases governing such properties and there is no event which, but for the passage of time or the giving of notice, or both, would constitute a default under any of such leases, except in each case such defaults that would not have a Material Adverse Effect; (ii) the current use and occupancy of each of the properties complies in all material respects with all applicable codes and zoning laws and regulations, except for such failures to comply which would not individually or in the aggregate have a Material Adverse Effect; and (iii) there is no pending or threatened condemnation, zoning change, environmental or other proceeding or action that will in any material respect affect the size of, use of, improvements on, construction on, or access to the properties except such proceedings or actions that would not have a Material Adverse Effect.
(q) The Company and its Subsidiaries possess adequate certificates, authorities, consents, authorizations or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by them, have complied, in all material respects, with the laws, regulations and orders known by them to be applicable to them or their respective businesses and properties and have not received any notice of proceedings relating to the revocation or modification of any such certificate, authority, consents, authorizations or permit that, if determined adversely to the Company or any of its Subsidiaries, would individually or in the aggregate have a Material Adverse Effect.
(r) No labor dispute with the employees of the Company or any Subsidiary exists or, to the knowledge of the Company is threatened or imminent that might have a Material Adverse Effect.
(s) The Company and its Subsidiaries own, possess, license or can acquire on reasonable terms, adequate trademarks, trade names, licenses, and other rights to inventions, know-how, patents, copyrights, confidential or proprietary information and other intellectual property (collectively, “intellectual property rights”) necessary to conduct the business now operated by them, or presently employed by them, and have not received any notice of infringement of or conflict with asserted rights of others with respect to any intellectual property rights that, if determined adversely to the Company or any of its Subsidiaries, would individually or in the aggregate have a Material Adverse Effect.
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(t) Except for activities, conditions, circumstances or matters that would not have a Material Adverse Effect, (A) to the knowledge of the Company, after due inquiry, neither the Company nor any of the Subsidiaries has violated (i) any Environmental Law (as hereinafter defined) (and the Company and the Subsidiaries are in compliance with all requirements of applicable permits, licenses, approvals or other Authorizations issued pursuant to Environmental Laws) or (ii) any provisions of the Employee Retirement Income Security Act of 1974, as amended; (B) to the knowledge of the Company, after due inquiry, none of the Company or the Subsidiaries has caused or suffered to occur any Release (as hereinafter defined) of any Hazardous Substance (as hereinafter defined) into the Environment (as hereinafter defined) on, in, under or from any property, and no condition exists on, in, under or adjacent to any property that would reasonably be expected to result in the incurrence of liabilities under, or any violations of, any Environmental Law or give rise to the imposition of any Lien (as hereinafter defined), under any Environmental Law; (C) none of the Company or the Subsidiaries has received any written notice of a material claim under or pursuant to any Environmental Law or under common law pertaining to Hazardous Substances on, in, under or originating from any property; (D) none of the Company or any of the Subsidiaries has actual knowledge of, or received any written notice from any Governmental Authority (as hereinafter defined) claiming, any material violation of any Environmental Law or a determination to undertake and/or request the investigation, remediation, clean-up or removal of any Hazardous Substance released into the Environment on, in, under or from any property; and (E) no property now or heretofore owned or leased by the Company or any of the Subsidiaries is included or, to the knowledge of the Company and the Subsidiaries, after due inquiry, proposed for inclusion on, and no property operated by the Company or any of the Subsidiaries, to the knowledge of the Company and the Subsidiaries, is included or proposed for inclusion on, the National Priorities List issued pursuant to CERCLA (as hereinafter defined) by the United States Environmental Protection Agency (the “EPA”), or included on the Comprehensive Environmental Response, Compensation, and Liability Information System database maintained by the EPA, and none of the Company and the Subsidiaries has actual knowledge that any property has otherwise been identified in a published writing by the EPA as a potential CERCLA removal, remedial or response site or, to the knowledge of the Company and the Subsidiaries, is included on any similar list of potentially contaminated sites pursuant to any other Environmental Law.
As used herein, “Hazardous Substance” shall include any hazardous substance, hazardous waste, toxic substance, pollutant or hazardous material, including, without limitation, oil, petroleum or any petroleum-derived substance or waste, asbestos or asbestos-containing materials, PCBs, pesticides, explosives, radioactive materials, dioxins, urea formaldehyde insulation or any constituent of any such substance, pollutant or waste which is subject to regulation under any Environmental Law (including, without limitation, materials listed in the United States Department of Transportation Optional Hazardous Material Table, 49 C.F.R. § 172.101, or in the EPA’s List of Hazardous Substances and Reportable Quantities, 40 C.F.R. Part 302); “Environment” shall mean any surface water, drinking water, ground water, land surface, subsurface strata, river sediment, buildings, structures, and indoor and outdoor air; “Environmental Law” shall mean the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. § 9601 et seq.) (“CERCLA”), the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. § 6901, et seq.), the Clean Air Act, as amended (42 U.S.C. § 7401, et seq.), the Clean Water Act, as amended (33 U.S.C. § 1251, et seq.), the Toxic Substances Control Act, as amended (15 U.S.C. § 2601, et seq.), the Occupational Safety and Health Act of 1970, as amended (29 U.S.C. § 651, et seq.), the Hazardous Materials Transportation Act, as amended (49 U.S.C. § 1801, et seq.), and all other foreign, federal, state or local law or regulation relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants; “Governmental Authority” shall mean any federal, state or local governmental office, agency or authority having the duty or authority to promulgate, implement or enforce any Environmental Law; “Lien” shall mean, with respect to any property, any mortgage, deed of trust, pledge, security interest, lien, encumbrance, penalty, fine, charge, assessment, judgment or other liability in, on or affecting such property; and “Release” shall mean any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, emanating or disposing of any Hazardous Substance into the Environment, including, without limitation, the abandonment or discard of barrels, containers, tanks (including, without limitation, underground storage tanks) or other receptacles containing or previously containing and containing a residue of any Hazardous Substance.
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(u) To the knowledge of the Company, none of the environmental consultants which prepared environmental and asbestos inspection reports with respect to any of the properties was employed for such purpose on a contingent basis or has any substantial interest in the Company or any of the Subsidiaries, and none of them nor any of their trustees, directors, officers or employees is connected with the Company or any of the Subsidiaries as a promoter, selling agent, voting trustee, trustee, director, officer or employee.
(v) Except as disclosed in the Prospectus and the Pricing Disclosure Package, after due inquiry, there are no pending actions, suits or proceedings against or, to the knowledge of the Company, affecting the Company, any of its Subsidiaries or any of their respective properties or any of their respective officers or trustees that, if determined adversely to the Company or any of its Subsidiaries or any of their respective officers or trustees, would individually or in the aggregate have a Material Adverse Effect, or which are otherwise material in the context of the sale of the Stock and/or are required to be described in the Registration Statement or Prospectus; and, to the knowledge of the Company, no such actions, suits or proceedings are threatened or contemplated, in each case, before or by any federal or state court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, having jurisdiction over the Company, any of its Subsidiaries or assets; and no contract, statute, regulation or other document is required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required.
(w) The consolidated financial statements and schedules and notes thereto of the Company and its consolidated Subsidiaries included in the Registration Statement, the Prospectus and the Pricing Disclosure Package comply in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and Item 301 of Regulation S-K promulgated by the Commission and fairly present the financial position of the Company and its consolidated Subsidiaries and the results of operations and changes in financial condition as of the dates and periods therein specified. Such financial statements, schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved (except as otherwise noted therein).
(x) PricewaterhouseCoopers LLP, who has certified certain financial statements of the Company and its consolidated Subsidiaries and delivered its report with respect to the audited consolidated financial statements and schedules included in the Registration Statement, the Prospectus and the Pricing Disclosure Package, is an independent registered public accounting firm as required by the Securities Act and the Exchange Act.
(y) Subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus and the Pricing Disclosure Package and prior to the date of this Agreement and each Delivery Date, (i) neither the Company nor any of its Subsidiaries has sustained any material casualty loss, condemnations or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, (ii) there has not been any material adverse change, or any development or event that would be reasonably likely to result in a material adverse change, in the condition (financial or otherwise), management, business, properties, prospects, net worth, or results of operations of the Company or any of its Subsidiaries, taken as a whole, except in each case as described in or contemplated by the Prospectus and the Pricing Disclosure Package and (iii) except as disclosed in or contemplated by the Prospectus and the Pricing Disclosure Package or otherwise consistent with past practice, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
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(z) The Company is not and the Operating Partnership is not, and, after giving effect to the offering and sale of the Stock and the application of the proceeds thereof (including, in the case of any Forward Hedge Shares, at settlement of the related Forward Contract,) as described in the Prospectus and the Pricing Disclosure Package, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended.
(aa) The Company has not, directly or indirectly, (i) taken any action designed to cause or to result in, or that has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Stock or (ii) since the filing of the Registration Statement, (A) sold, bid for, purchased, or paid anyone any compensation for soliciting purchases of, the Stock or (B) paid or agreed to pay to any person any compensation for soliciting another to purchase any other securities of the Company.
(bb) The Company has not distributed and, prior to the completion of the distribution of the Stock, will not distribute any offering material in connection with the offering and sale of the Stock other than the Registration Statement or any amendment thereto, the Prospectus or any amendment or supplement thereto, or other materials, if any permitted by the Securities Act and the Rules and Regulations.
(cc) Subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus and the Pricing Disclosure Package and prior to each Delivery Date, except as described in the Prospectus and the Pricing Disclosure Package, (1) the Company and its Subsidiaries have not incurred any material liability or obligation, direct or contingent, nor entered into any material transaction, in each case, not in the ordinary course of business; (2) the Company has not purchased any of its outstanding shares of beneficial interest, nor declared, paid or otherwise made any dividend or distribution of any kind on its shares of beneficial interest except in the ordinary course of business consistent with past practices; and (3) there has not been any material change in the capitalization, equity, short-term debt or long-term debt of the Company and its consolidated Subsidiaries, except in each case as described in or contemplated by the Prospectus and the Pricing Disclosure Package.
(dd) The Company and each of its Subsidiaries are insured by property, title, casualty and liability insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; neither the Company nor any such Subsidiary has been refused any insurance coverage sought or applied for; and neither the Company nor any such Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not result in Material Adverse Effect, except in such instances where the tenant is carrying such insurance or the tenant is self-insuring such risks and except as described in or contemplated by the Prospectus and the Pricing Disclosure Package.
(ee) No Subsidiary of the Company is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on the equity interest in such Subsidiary held by the Company, from repaying to the Company any loans or advances to such Subsidiary from the Company or from transferring any of such Subsidiary’s property or assets to the Company or any other Subsidiary of the Company, except as described in or contemplated by the Prospectus and the Pricing Disclosure Package or pursuant to the terms of its outstanding securities or a bona fide financing transaction.
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(ff) The Company and each of its Subsidiaries has filed all foreign, federal, state and local income tax returns that are required to be filed or has requested extensions thereof (except in any case in which the failure so to file would not have a Material Adverse Effect) and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for any such tax, assessment, fine or penalty that is currently being contested in good faith or as described in or contemplated by the Prospectus and the Pricing Disclosure Package or which would not result in a Material Adverse Effect.
(gg) Commencing with the Company’s taxable year ended December 31, 1992, the Company was organized and has operated in conformity with the requirements for qualification and taxation as a real estate investment trust (“REIT”) under Sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the “Code”), and its proposed method of operations will enable it to continue to meet the requirements for qualification and taxation as a REIT. All statements in the Prospectus regarding the Company’s qualification as a REIT are true, complete and correct in all material respects.
(hh) Except for the shares of capital stock or other equity interests of each of the Subsidiaries owned by the Company and such Subsidiaries, neither the Company nor any such Subsidiary owns any shares of stock or any other equity securities of any corporation or has any equity interest in any firm, partnership, association or other entity, except as described in or contemplated by the Prospectus and the Pricing Disclosure Package.
(ii) The Company and each of its Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (1) transactions are executed in accordance with management’s general or specific authorizations; (2) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles in the United States and to maintain asset accountability; (3) access to assets, financial and corporate books and records is permitted only in accordance with management’s general or specific authorization; and (4) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
(jj) Neither the Company nor any of the Subsidiaries is (i) in breach or violation of its respective declaration of trust, charter, bylaws, partnership agreement or other organizational document, as the case may be, (ii) in default in the performance of any obligation, agreement, covenant or condition contained in any indenture, loan agreement, mortgage, bond, debenture, note agreement, joint venture or partnership agreement, lease or other agreement or instrument that is material to the Company and the Subsidiaries, taken as a whole, and to which the Company or any of the Subsidiaries is a party or by which the Company or any of the Subsidiaries or their respective property is bound (and there is no event which, whether with or without the giving of notice, or passage of time or both, would constitute a default under any of foregoing), where such default would have a Material Adverse Effect, or (iii) in violation of any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, government body, arbitrator or other authority having jurisdiction over the Company or such Subsidiary or any of its properties, as applicable, where such violation would have a Material Adverse Effect.
(kk) Since January 1, 1998, the Company has timely filed all documents required to be filed by it under the Exchange Act.
(ll) No relationship, direct or indirect, exists between or among the Company or the Subsidiaries on the one hand, and the trustees, directors, officers, stockholders, members, partners, customers or suppliers of the Company or the Subsidiaries on the other hand, which is required by the Securities Act or the rules of the FINRA to be described in the Registration Statement, the Pricing Disclosure Package and the Prospectus which is not so described.
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(mm) There are no contracts, agreements, letters of intent, understandings or any other documents relating to the pending acquisition of any real property by the Company or the Operating Partnership that are required to be disclosed in the Prospectus and that are not so disclosed. The statements made in the Prospectus and the Pricing Disclosure Package insofar as they purport to constitute summaries of the terms of the contracts and other documents that are described and filed as required, constitute accurate summaries of the terms of such contracts and documents in all material respects. Neither the Company nor any of its subsidiaries has knowledge that any other party to any such contract or other document has any intention not to render full performance as contemplated by the terms thereof.
(nn) The Company has established and maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such disclosure controls and procedures are designed to ensure that material information relating to the Company, including its consolidated Subsidiaries, is made known to the Company’s Chief Executive Officer and its Chief Financial Officer by others within those entities, and, as of the end of the Company’s most recent fiscal quarter, such disclosure controls and procedures were effective to perform the functions for which they were established; the Company’s auditors and the Audit Committee of the Board of Trustees of the Company have been advised of: (i) any material weakness or significant deficiency in the design or operation of internal controls over financial reporting that is reasonably likely to have a material effect on the Company’s ability 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 Company’s internal controls over financial reporting; except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, since the first day of the Company’s most recent fiscal year for which audited financial statements are included in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there has been (i) no material weakness (as defined in Rule 1-02 of Regulation S-X of the Commission) in the Company’s internal control over financial reporting (whether or not remediated), and (ii) no fraud, whether or not material, involving management or other employees who have a role in the Company’s internal control over financial reporting; and since the end of the Company’s most recently completed fiscal quarter, there have been no changes in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
(oo) The Company and, to the knowledge of the Company, all of the Company’s trustees or officers, in their capacities as such, are in compliance with any applicable provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith.
(pp) [Intentionally Omitted]
(qq) The operations of the Company and the Subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, 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 or any of the Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
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(rr) Neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any trustee, director, officer, agent, employee, affiliate or other person acting on behalf of the Company or any of its Subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department or the U.S. Department of State and including, without limitation, the designation as a “specially designated national” or “blocked person”), the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), nor is the Company or any of its Subsidiaries located, organized or resident in a country or territory that is the subject or target of Sanctions, including, without limitation, Crimea, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, Cuba, Iran, North Korea and Syria (each, a “Sanctioned Country”); and the Company will not directly or indirectly use any of the proceeds from the sale of Stock by the Company in the offering contemplated by this Agreement, or lend, contribute or otherwise make available any such proceeds to any Subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person that, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as agent, initial purchaser, advisor, investor or otherwise) of Sanctions. For the past five years, the Company and its Subsidiaries have not knowingly engaged in, are not now knowingly engaged in any dealings or transactions with any person that at the time of the dealing or transaction was the subject or the target of Sanctions or with any Sanctioned Country.
(ss) The interactive data in eXtensible Business Reporting Language included in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021 and Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2022, which are incorporated by reference in the Registration Statement, the Prospectus and the Pricing Disclosure Package, 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.
(tt) The Common Shares are 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.
(uu) Neither the Company nor any of its subsidiaries is a party to any contract, agreement or understanding with any person (other than the Transaction Documents) that would give rise to a valid claim against any of them or the Agent, the Forward Purchaser or the Forward Seller for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the Stock.
(vv) Neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any trustee, officer, or employee of the Company or any of its Subsidiaries nor, to the knowledge of the Company, any agent, affiliate or other person acting on behalf of the Company or any of its Subsidiaries has (i) used any funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made or taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government or regulatory official or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom, or any other applicable anti-bribery or anti-corruption laws; or (iv) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit. The Company and its Subsidiaries have instituted, maintain and enforce, and will continue to maintain and enforce policies and procedures designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws.
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(ww) The Company and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) are adequate in all material respects for the operation and performance of the business of the Company and its subsidiaries as currently conducted, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company and its subsidiaries have implemented and maintained commercially reasonable controls, policies, procedures, and safeguards to maintain and protect their material confidential information and the integrity, continuous operation, 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, except to the extent that a failure to do so could not reasonably be expected to have a Material Adverse Effect, and there have been no breaches, violations, outages or unauthorized uses of or accesses to any IT System or Personal Data used in connection with the operation of the Company’s and its subsidiaries’ businesses, except for those that have been remedied without material cost or liability or the duty to notify any other person, nor any incidents under internal review or investigations relating to the same. The Company and its 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.
(xx) The Company and each of its Subsidiaries are, and at all prior times were, in compliance with all applicable data privacy and security laws, statutes, judgements, orders, rules and regulations of any court, arbitrator, any other governmental or regulatory authority which have legal jurisdiction over the Company and all applicable laws regarding the collection, use, transfer, export, storage, protection, disposal or disclosure by the Company and its Subsidiaries of Personal Data collected from or provided by third parties (collectively, the “Privacy Laws”), except for any instances of non-compliance that in the aggregate would not have a Material Adverse Effect. The Company and its subsidiaries have in place, comply with, and take appropriate steps reasonably designed to (i) ensure compliance in all material respects with its privacy policies, all applicable third-party obligations and industry standards regarding Personal Data; and (ii) reasonably protect the security and confidentiality of all Personal Data (collectively, the “Policies”). None of the disclosures by the Company on its websites regarding its privacy policy have been inaccurate, misleading, deceptive or in violation of any Privacy Laws or Policies in any material respect. To the knowledge of the Company, the execution, delivery and performance of the Transaction Documents or any other agreement referred to in the Transaction Documents will not result in a breach or violation of any Privacy Laws or Policies, which violation would have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries: has received notice from a governmental agency of any actual or potential liability that if resolved against the Company would represent a material financial loss to the Company under or relating to, or actual or potential violation of, any of the Privacy Laws and does not have knowledge of any other facts that, individually or in the aggregate, would reasonably indicate non-compliance with any Privacy Laws or Policies which would have a Material Adverse Effect to the Company. To the Company’s knowledge, there is no action, suit or proceeding by or before any court, governmental agency, authority or body with legal jurisdiction over the Company that is pending or threatened alleging non-compliance with Privacy Laws or Policies and which, if determined adversely to the Company, would have a Material Adverse Effect.
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(yy) (i) Each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Security Act of 1974, as amended (“ERISA”)) for which the Company or any member of its “Controlled Group” (defined as any organization which is a member of a controlled group of corporations within the meaning of Section 414 of the Code) would have any liability (each a “Plan”) has been maintained in compliance with its terms and with the requirements of all applicable statutes, rules and regulations including ERISA and the Code; (ii) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan excluding transactions effected pursuant to a statutory or administrative exemption; (iii) with respect to each Plan subject to Title IV of ERISA (A) no “reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur, (B) no failure to meet the minimum funding standard set forth in Sections 412 of the Code and 303 of ERISA, whether or not waived, has occurred or is reasonably expected to occur, (C) no Plan is or is reasonably expected to be in “at risk” status (within the meaning of Section 430 of the Code or Section 303 of ERISA), (D) there has been no filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan or the receipt by the Company or any member of its Controlled Group from the PBGC or the Plan administrator of the notice relating to the intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan, (E) no conditions contained in Section 303(k)(1)(A) of ERISA for the imposition of a lien shall have been met with respect to any Plan, (F) the fair market value of the assets under each Plan exceeds the present value of all benefits accrued under such Plan (determined based on those assumptions used to fund such Plan) and (G) neither the Company or any member of its Controlled Group has incurred, or reasonably expects to incur, any liability under Title IV of ERISA (other than contributions to the Plan or premiums to the Pension Benefit Guaranty Corporation in the ordinary course and without default) in respect of a Plan (including a “multiemployer plan”, within the meaning of Section 4001(c)(3) of ERISA) (“Multiemployer Plan”); (iv) no Multiemployer Plan is, or is expected to be, “insolvent” (within the meaning of Section 4245 of ERISA), or in “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 304 of ERISA); and (v) each Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service that it is so qualified and nothing has occurred, whether by action or by failure to act, which would cause the loss of such qualification.
(zz) [Intentionally Omitted]
(aaa) Each Transaction Document conforms in all material respects to the description thereof contained in the Registration Statement, the Prospectus and the Pricing Disclosure Package.
(bbb) None of Transaction Documents will result in a violation by the Agent, the Forward Seller or the Forward Purchaser of the Aggregate Share Ownership Limit or the Common Share Ownership Limit (each as defined in the Company’s Amended and Restated Declaration of Trust) on account of the Common Shares transferred pursuant to this Agreement or the Common Shares transferred pursuant to the Master Forward Confirmation (and each “Supplemental Confirmation” under the Master Forward Confirmation) (including, for this purpose, Forward Hedge Shares borrowed by the Forward Purchaser in connection with the Master Forward Confirmation (and each “Supplemental Confirmation” under the Master Forward Confirmation)). The Company hereby acknowledges that pursuant to the Master Forward Confirmation it shall deliver and execute for each Forward thereunder a Letter Agreement (as defined in the Master Forward Confirmation), pursuant to which the Company covenants not to treat any Forward, by its terms, as constituting or giving rise to Beneficial Ownership or Constructive Ownership (each as defined in the Company’s Amended and Restated Declaration of Trust) by any Forward Purchaser or Forward Seller of the Common Shares underlying such Forward Contract, and for purposes of the representation in this Section 1(A)(bbb), a Forward Seller or Forward Purchaser may assume the correctness of such treatment.
Any certificate signed by any officer or authorized representative of the Company or any Subsidiary and delivered to the Agent, the Forward Seller or the Forward Purchaser in connection with the offering of the Stock shall be deemed a representation and warranty by the Company or any Subsidiary, as to matters covered thereby, to the Agent, the Forward Seller or the Forward Purchaser, as the case may be.
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B. Representations and Warranties of the Forward Seller. The Forward Seller severally represents and warrants to, and agrees with, the Agent that:
(a) This Agreement has been duly authorized, executed and delivered by the Forward Seller, and the Forward Seller will have full right, power and authority to sell, transfer and deliver the Forward Hedge Shares.
2. Sale and Delivery of Issuance Shares and Forward Hedge Shares.
(a) Subject to the terms and conditions set forth herein, the Company agrees to issue and sell through the Agent, as sales agent or principal, and the Agent agrees to use its commercially reasonable efforts to sell as sales agent or principal for the Company, the Issuance Shares. For the avoidance of doubt, the foregoing sentence shall not apply to sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons in which any Agent is acting for the Company in a capacity other than as Agent under this Agreement. Subject to the terms and conditions set forth herein and in the Master Forward Confirmation (and each “Supplemental Confirmation” under the Master Forward Confirmation), the Forward Purchaser may borrow, offer and sell Forward Hedge Shares through the Forward Seller to hedge each Forward, and the Forward Seller shall use its commercially reasonable efforts to sell Forward Hedge Shares.
(b) (i) The Issuance Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Agent on any Trading Day that the Company has instructed the Agent, and the Agent has agreed, to make such sales. On any Trading Day and subject to the terms and conditions of this Agreement, the Company may instruct the Agent by telephone (confirmed promptly by telecopy or email, which confirmation will be promptly acknowledged (including, without limitation, by telecopy or e-mail) by the Agent) as to the maximum number of Issuance Shares to be sold by the Agent on such day (in any event not in excess of either the Maximum Amount or the number available for issuance under the Prospectus and the currently effective Registration Statement) and the minimum price per share of Issuance Shares at which such Issuance Shares may be sold. Subject to the Agent’s acceptance of such instruction by email confirming the terms thereof and unless the sale of the Issuance Shares has been suspended or otherwise terminated in accordance with the terms of this Agreement, the Agent shall use its commercially reasonable efforts to sell all of the Issuance Shares so designated by the Company.
(ii) Subject to the terms and conditions set forth herein and in the Master Forward Confirmation, on any Trading Day and subject to the terms and conditions of this Agreement, the Company may deliver a Forward Placement Notice executed by an authorized officer of the Company to the Forward Purchaser and the Forward Seller. The Forward Purchaser and the Forward Seller may accept the Forward Placement Notice by e-mail to one of the individuals named on Schedule 1 hereto, as such Schedule may be amended from time to time, confirming the terms of such Forward Placement Notice. Upon the delivery of a Forward Placement Notice to the Forward Purchaser and the Forward Seller and the Forward Purchaser’s and the Forward Seller’s acceptance of such Forward Placement Notice by e-mail confirming the terms of such Forward Placement Notice, and unless the sale of the Forward Hedge Shares described therein has been suspended or otherwise terminated in accordance with the terms of this Agreement or the Master Forward Confirmation, the Forward Purchaser will use its commercially reasonable efforts to borrow Forward Hedge Shares up to the amount specified and the Forward Seller will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Forward Hedge Shares, and otherwise in accordance with the terms of such Forward Placement Notice. The number of Forward Hedge Shares that the Forward Purchaser shall use its commercially reasonable efforts to borrow and that the Forward Seller shall use its commercially reasonable efforts to sell pursuant to such Forward shall have an aggregate actual sale execution price equal to the Forward Hedge Amount set forth in the Forward Placement Notice accepted by the Forward Purchaser and the Forward Seller.
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(iii) A Forward Placement Notice or any amendment thereto shall be deemed delivered on the Trading Day that it is received by facsimile or otherwise (and the Company confirms such delivery by e-mail notice or by telephone (including voicemail message)) by the Forward Purchaser and Forward Seller. No Forward Placement Notice may be delivered if an ex-dividend date or ex-date, as applicable for any dividend or distribution payable by the Company on the Common Shares, is scheduled to occur during the period from, but excluding, the first scheduled Trading Day of the related Forward Hedge Selling Period to, and including, the last scheduled Trading Day of such Forward Hedge Selling Period.
(iv) No later than the opening of the Trading Day next following the last Trading Day of each Forward Hedge Selling Period (or, if earlier, the date on which any Forward Hedge Selling Period is terminated in accordance with the terms of this Agreement or the Master Forward Confirmation), the Forward Purchaser shall execute and deliver to the Company, and the Company shall execute and return to the Forward Purchaser, a “Supplemental Confirmation” in respect of the Forward for such Forward Hedge Selling Period, which “Supplemental Confirmation” shall set forth the “Trade Date” for such Forward (which shall, subject to the terms of the Master Forward Confirmation, be the last Trading Day of such Forward Hedge Selling Period), the “Effective Date” for such Forward (which shall, subject to the terms of the Master Forward Confirmation, be the date one Settlement Cycle (as such term is defined in the Master Forward Confirmation) immediately following the last Trading Day of such Forward Hedge Selling Period), the initial “Base Amount” for such Forward (which shall be the Actual Sold Forward Amount for such Forward Hedge Selling Period), the “Maturity Date” for such Forward (which shall, subject to the terms of the applicable Master Forward Confirmation, be the date that follows the last Trading Day of such Forward Hedge Selling Period by the number of months or years set forth opposite the caption “Term” in the Forward Placement Notice for such Forward, which number of days or months shall in no event be less than 3 months nor more than 2 years), the “Forward Price Reduction Dates” for such Forward (which shall be each of the dates set forth below the caption “Forward Price Reduction Dates” in the Forward Placement Notice for such Forward), the “Forward Price Reduction Amounts” corresponding to such Forward Price Reduction Dates (which shall be each amount set forth opposite each “Forward Price Reduction Date” and below the caption “Forward Price Reduction Amounts” in the Forward Placement Notice for such Forward), the “Spread” for such Forward (which shall be the amount set forth opposite the term “Spread” in the Forward Placement Notice), the “Initial Forward Price” for such Forward (which shall be determined as provided in the Master Forward Confirmation), the “Volume-Weighted Hedge Price,” the “Specified Borrow Rate,” the “Maximum Specified Borrow Rate” and the “Forward Shares.”
(v) The Company shall be obligated to enter into a Forward Contract (in the case of a Forward) with the Forward Purchaser, and the Forward Purchaser shall be obligated to use its commercially reasonable efforts to borrow, and the Forward Seller shall use its commercially reasonable efforts consistent with its normal trading and sales practices to sell, the Forward Hedge Shares pursuant to such Forward only if and when the Company delivers a Forward Placement Notice to the Forward Purchaser and the Forward Seller and the Forward Purchaser and the Forward Seller have accepted such Forward Placement Notice as provided in Section 2(b)(ii). The Company shall have the right, in its sole discretion, to amend at any time and from time to time any Forward Placement Notice, and if accepted by the Forward Purchaser and the Forward Seller, each of the Forward Purchaser and the Forward Seller shall, as soon as reasonably practicable, modify its offers to sell or borrow, as applicable, consistent with any such amendment notice; provided, however, that (i) the Company may not amend the Forward Hedge Amount if such amended Forward Hedge Amount is less than the Actual Sold Forward Amount as of the date of such amendment and (ii) the Company shall not have the right to amend a Forward Placement Notice after the related “Supplemental Confirmation” has been delivered to the Company.
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(vi) Each of the Company, the Forward Purchaser and the Forward Seller acknowledges and agrees that: (x) there can be no assurance that the Forward Purchaser will be successful in borrowing or that the Forward Seller will be successful in selling Forward Hedge Shares; (y) a Forward Seller will incur no liability or obligation to the Company, the Forward Purchaser or any other person if it does not sell Forward Hedge Shares borrowed by the Forward Purchaser for any reason other than a failure by the Forward Seller to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Forward Hedge Shares as required under this Section 2(b); and (z) the Forward Purchaser will incur no liability or obligation to the Company, the Forward Seller or any other person if it does not borrow Forward Hedge Shares for any reason other than a failure by the Forward Purchaser to use its commercially reasonable efforts to borrow such Forward Hedge Shares as required under this Section 2. Notwithstanding anything herein to the contrary, the Forward Purchaser’s obligation to use its commercially reasonable efforts to borrow or cause its affiliate to borrow all or any portion of the Forward Hedge Shares (and the Forward Seller’s obligation to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such portion of the Forward Hedge Shares) for any Forward hereunder shall be subject in all respects to clause (vi) of the provisions under the caption “Conditions to Effectiveness” in Section 3 of the Master Forward Confirmation. In acting hereunder, the Forward Seller will be acting as agent for the Forward Purchaser and not as principal.
(c) Notwithstanding the foregoing, the Company shall not authorize the issuance and sale of, and the Agent shall not be obligated to use its reasonable efforts to sell, any Issuance Shares or the Forward Seller shall not be obligated to use its commercially reasonable efforts to sell any Forward Hedge Shares (i) at a price lower than the minimum price therefor authorized from time to time, or (ii) in a number in excess of (A) together with all sales of Issuance Shares and Forward Hedge Shares under this Agreement and each of the Alternative Sales Agreements, the Maximum Amount and (B) the number of Issuance Shares or Forward Hedge Shares, as the case may be, authorized from time to time to be issued and sold under this Agreement, in each case of clause (i) and (ii), by the Company’s Board of Trustees, or a duly authorized committee thereof, and notified to the Agent or the Forward Seller in writing. In addition, the Company, on the one hand, or the Agent or the Forward Seller, as the case may be, on the other hand, may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy or email, which confirmation will be promptly acknowledged (including, without limitation, by telecopy or e-mail) by the Agent or the Forward Seller, as the case may be, suspend the offering of the Issuance Shares or Forward Hedge Shares, as the case may be, for any reason and at any time; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Issuance Shares or Forward Hedge Shares sold hereunder prior to the giving of such notice.
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(d) Under no circumstances shall the aggregate offering price or number, as the case may be, of Issuance Shares and Forward Hedge Shares sold pursuant to this Agreement exceed the aggregate offering price or number, as the case may be, of Common Shares (i) set forth in the preamble paragraph of this Agreement, (ii) available for issuance under the Prospectus and the then currently effective Registration Statement, or (iii) authorized from time to time to be issued and sold under this Agreement by the Company’s Board of Trustees, or a duly authorized committee thereof, and notified to the Agent in writing. In addition, under no circumstances shall any Issuance Shares or Forward Hedge Shares be sold at a price lower than the minimum price therefor authorized from time to time by the Company’s Board of Trustees, or a duly authorized committee thereof, and notified to the Agent in writing. Further, under no circumstances shall the aggregate offering price of the Issuance Shares and Forward Hedge Shares sold pursuant to this Agreement and the Alternative Sales Agreements, including any separate underwriting or similar agreement covering principal transactions described in the first paragraph of this Agreement and the Alternative Sales Agreements, exceed the Maximum Amount.
(e) The Company agrees that any offer to sell, any solicitation of an offer to buy or any sales of the Issuance Shares or Forward Hedge Shares, as the case may be, shall only be effected by or through only one of the Agent, the Forward Purchaser, the Forward Seller or an Alternative Agent on any single given day. The Company shall in no event request that more than one of the Agent, the Forward Purchaser, the Forward Seller and one or all of the Alternative Agents sell Issuance Shares or Forward Hedge Shares on the same day.
(f) If either party 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 Company, the Issuance Shares or the Forward Hedge Shares, it shall promptly notify the other party and sales of Issuance Shares and Forward Hedge Shares under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.
(g) The gross sales price of any Issuance Shares under this Agreement shall be the market price for the Common Shares sold by the Agent under this Agreement on the NYSE at the time of such sale. The compensation payable to the Agent for sales of Issuance Shares shall be equal to up to 2.0% of the gross sales price of the Issuance Shares, and the exact amount shall be specified when the Company provides sale instructions to the Agent pursuant to Section 2. The remaining proceeds, after further deduction for any transaction fees, transfer taxes or other similar fees, taxes or charges imposed by any governmental, regulatory or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Company for such Issuance Shares (the “Net Proceeds”). The Agent shall notify the Company as promptly as practicable if any deduction referenced in the preceding sentence will be required. The amount of any commission, discount or other compensation to be paid by the Company to the Agent, when the Agent is acting as principal, in connection with the sale of Issuance Shares shall be as separately agreed among the parties hereto at the time of any such sales.
(h) The Agent or the Forward Seller, as the case may be, shall provide written confirmation to the Company following the close of trading on the NYSE each day on which Issuance Shares or Forward Hedge Shares are sold under this Agreement setting forth the number of Issuance Shares or the Actual Sold Forward Amount, as the case may be, sold on such day, the gross sales prices of the Issuance Shares or the Forward Hedge Shares, and in the case of Issuance Shares, the Net Proceeds to the Company and the compensation payable by the Company to the Agent with respect to such sales of Issuance Shares.
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(i) (x) Settlement for sales of Issuance Shares will occur on the second business day that is also a Trading Day following the trade date on which such sales are made, unless another date shall be agreed to by the Company and the Agent or is otherwise required by the Rules and Regulations and the Exchange Act (each such day, a “Issuance Shares Delivery Date”). On each Issuance Shares Delivery Date, the Issuance Shares sold through the Agent for settlement on such date shall be delivered by the Company to the Agent against payment of the Net Proceeds from the sale of such Issuance Shares. Settlement for all Issuance Shares shall be effected by book-entry delivery of Issuance Shares to the Agent’s account at The Depository Trust Company against payment by the Agent of the Net Proceeds from the sale of such Issuance Shares in same day funds delivered to an account designated by the Company. In the event that the Agent delivers the gross proceeds to the Company at a Issuance Shares Delivery Date, without any deduction referenced in the second and third sentences of Section 2(g), the amounts set forth in the second and third sentences of Section 2(g) shall be set forth and invoiced in a periodic statement from the Agent to the Company and payment of such amounts shall be made promptly by the Company after its receipt thereof. (y) Each sale of Forward Hedge Shares will be settled as between the Forward Purchaser and the Forward Seller on the applicable Forward Hedge Settlement Date following the relevant Forward Date. On or before each Forward Hedge Settlement Date, the Forward Purchaser will, or will cause its transfer agent to, electronically transfer the Forward Hedge Shares being sold by crediting the Forward Seller or its designee’s account at the Depository Trust Company through its Deposit/Withdrawal At Custodian System, or by such other means of delivery as may be mutually agreed upon by the Forward Purchaser and the Forward Seller and, upon receipt of such Forward Hedge Shares, which in all cases shall be freely tradeable, transferable, registered shares in good deliverable form, the Forward Seller shall deliver the related portion of the Forward Hedge Price in same day funds delivered to an account designated by the Forward Purchaser prior to the relevant Forward Hedge Settlement Date. (z) If the Company shall default on its obligation to deliver Issuance Shares on any Issuance Shares Delivery Date, the Company shall (i) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Company, and (ii) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Agreement by failing to deliver the applicable Net Proceeds on any Issuance Shares Delivery Date, the Agent will pay the Company interest based on the effective overnight federal funds rate until such proceeds, together with such interest, have been fully paid.
(j) Except as may be mutually agreed upon by the Company, the Agent, the Forward Purchaser and the Forward Seller in writing, sales pursuant to this Agreement may not be requested by the Company (and, by notice to the Agent given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for any sale of any Issuance Shares or Forward Hedge Shares prior to the commencement of the period referenced below) and need not be made by the Agent, except as provided in Section 2(k), during the period that begins on the business day prior to the date (each, an “Announcement Date”) on which the Company issues a press release containing, or otherwise publicly announces, its earnings, revenues or other results of operations (each, an “Earnings Announcement”) through and including the time that is 24 hours after the Company Periodic Report Date (as defined at Section 3(a)(xiii)). Notwithstanding the foregoing, without the prior written consent of each of the Company, the Agent, the Forward Purchaser and the Forward Seller, no sales of Issuance Shares or Forward Hedge Shares shall take place, and the Company shall not request the sale of any Issuance Shares or Forward Hedge Shares that would be sold, and the Agent, the Forward Purchaser and the Forward Seller 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.
(k) If the Company wishes to offer, sell or deliver Issuance Shares at any time during the period from and including an Announcement Date through and including the time that is 24 hours after the time that the Company and the Operating Partnership file (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such Earnings Announcement, the Company shall (i) prepare and deliver to the Agent (with a copy to its counsel) a Current Report on Form 8-K which shall include substantially the same financial and related information as was set forth in the relevant Earnings Announcement (other than any earnings projections, similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Agent, the Forward Purchaser and the Forward Seller, and obtain the consent of the Agent to the filing thereof (such consent not to be unreasonably withheld), (ii) provide the Agent with the officers’ certificates, opinions/letters of counsel and accountants’ letter called for by Sections 5(d), (e), (f), (g) and (h)(b), respectively, (iii) afford the Agent, the Forward Purchaser and the Forward Seller the opportunity to conduct a due diligence review in accordance with Section 3(xii) and (iv) file such Earnings 8-K with the Commission, then the provisions of Section 2(j) shall not be applicable for the period from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the time that is 24 hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is 24 hours after the Filing Time of the relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K under the Exchange Act, as the case may be. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificates, opinions/letters of counsel and accountants’ letter pursuant to this Section 2(k) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions/letters of counsel and accountants’ letters as provided in Section 5, and (B) this Section 2(k) shall in no way affect or limit the operation of the provisions of clause (x) and the last sentence of Section 2(j), which shall have independent application.
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3. Further Agreements of the Company, the Operating Partnership and the Agent.
(a) Each of the Company and the Operating Partnership agree with the Agent, the Forward Purchaser and the Forward Seller as follows:
(i) To make no further amendment or any supplement to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus, except as provided herein; to advise the Agent, the Forward Purchaser and the Forward Seller promptly of the time when any amendment or supplement to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus has been filed and, if not publicly available, to furnish the Agent, the Forward Purchaser and the Forward Seller with copies thereof; to file all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Agreement within the time periods required by the Exchange Act; to advise the Agent, the Forward Purchaser and the Forward Seller promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose, of any notice from the Commission objecting to the use of the form of the Registration Statement or any post-effective amendment thereto or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus (including, without limitation, any document incorporated by reference in any of the foregoing) or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use its best efforts to obtain as soon as possible its withdrawal.
(ii) During any period when the delivery of a prospectus is required in connection with the offering or sale of Stock, and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an 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, or, if for any other reason it shall be necessary to amend or supplement the Prospectus (including, without limitation, any document incorporated by reference therein) in order to comply with the Securities Act or the Exchange Act, to promptly notify the Agent, the Forward Purchaser and the Forward Seller and to promptly file such document and to prepare and furnish without charge to the Agent, the Forward Purchaser and the Forward Seller and to any dealer in securities as many copies as the Agent, the Forward Purchaser or the Forward Seller may from time to time reasonably request of an amended or supplemented Prospectus (or incorporated document, as the case may be) that will correct such statement or omission or effect such compliance.
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(iii) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Agent, the Forward Purchaser or the Forward Seller be required by the Securities Act or requested by the Commission.
(iv) (A) To furnish, without charge, to the Agent, the Forward Purchaser and the Forward Seller copies of the Prospectus included in the Registration Statement, and, so long as a prospectus relating to the Stock is (or but for the exemption in Rule 172 of the Securities Act would be) required to be delivered under the Securities Act in connection with sales through the Agent or dealer or the Forward Purchaser or the Forward Seller, the Prospectus and all amendments and supplements thereto (in each case including exhibits thereto), in each case in such quantities as the Agent, the Forward Purchaser or the Forward Seller requests. All other documents shall be so furnished as soon as available. The Company will pay the expenses of printing and distributing to the Agent, the Forward Purchaser and the Forward Seller all such documents; and (B) during the period of five years hereafter, upon request of the Agent, the Forward Purchaser or the Forward Seller to the extent not publicly available, the Company will furnish to the Agent, the Forward Purchaser and the Forward Seller as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such year; and the Company will furnish to the Agent, the Forward Purchaser and the Forward Seller to the extent not publicly available, (i) as soon as available, a copy of each report and any definitive proxy statement of the Company filed with the Commission under the Exchange Act or mailed to shareholders, and (ii) from time to time, such other information concerning the Company as the Agent, the Forward Purchaser or the Forward Seller may reasonably request.
(v) To pay the applicable Commission filing fees relating to the Stock 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) of the Rules and Regulations, except to the extent such filing fees have been paid prior to the date hereof.
(vi) Prior to filing with the Commission any amendment or supplement to the Registration Statement, the Pricing Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus (other than (1) an amendment made by the filing of any report or other document under Section 13, 14 or 15(d) of the Exchange Act, or (2) by a prospectus supplement relating to the offering of securities other than the Stock (including, without limitation, other Common Shares)), the Company shall furnish a copy thereof (which maybe an electronic copy) to the Agent, the Forward Purchaser and the Forward Seller and their respective counsel and the Company shall not file or use any such proposed amendment or supplement to the Registration Statement, the Pricing Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus to which the Agent, the Forward Purchaser and the Forward Seller reasonably object.
(vii) Not to make any offer relating to the Stock that would constitute an Issuer Free Writing Prospectus without the prior written consent of Agent, the Forward Purchaser and the Forward Seller.
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(viii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. During any period when the delivery of a prospectus is required in connection with the offering or sale of Stock, if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the Prospectus or would include an 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, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus in order to comply with the Securities Act, to promptly notify the Agent, the Forward Purchaser and the Forward Seller and to promptly file such document and to prepare and furnish without charge to the Agent, the Forward Purchaser and the Forward Seller as many copies as the Agent, the Forward Purchaser or the Forward Seller may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(ix) As soon as practicable, but not later than the Availability Date (as hereinafter defined), to make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after each Effective Date of the Registration Statement which will satisfy the provisions of Section 11(a) of the Securities Act. For the purpose of the preceding sentence, “Availability Date” means the 45th day after the end of the fourth fiscal quarter following the fiscal quarter that includes each such Effective Date, except that, if such fourth fiscal quarter is the last quarter of the Company’s fiscal year, “Availability Date” means the 90th day after the end of such fourth fiscal quarter.
(x) To arrange for the registration or qualification of the shares of Stock for offering and sale under the applicable state securities or blue sky laws and real estate syndication laws of such jurisdictions as the Agent, the Forward Purchaser or the Forward Seller designates and will continue such registration or qualifications in effect for as long as may be necessary to complete the distribution of the shares of Stock and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction.
(xi) At each Applicable Time, each Delivery Date, each Registration Statement Amendment Date (as defined below), each Company Periodic Report Date (as defined below) and each Request Date (as defined below), the Company and the Operating Partnership shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement.
(xii) The Company and the Operating Partnership will cooperate timely with any reasonable due diligence review conducted by the Agent, the Forward Purchaser or the Forward Seller or their respective counsel from time to time in connection with the transactions contemplated hereby, including, without limitation, and upon reasonable notice providing information and making available documents and appropriate corporate officers, during regular business hours and at the Company’s principal offices, as the Agent, the Forward Purchaser or the Forward Seller may reasonably request.
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(xiii) Upon commencement of the offering of Stock under this Agreement and promptly after each (A) (x) date the Registration Statement or the Prospectus shall be amended or supplemented (other than (1) by an amendment or supplement providing solely for the determination of the terms of the Stock, or (2) by a prospectus supplement relating to the offering of other securities (including, without limitation, other Common Shares)), and (y) date there is filed with the Commission any document incorporated by reference into the Prospectus (other than a Current Report on Form 8-K, unless the Agent, the Forward Purchaser or the Forward Seller shall reasonably request) (each such date referred to in clause (x) and (y), a “Registration Statement Amendment Date”), (B) date on which the Company shall file an Annual Report on Form 10-K or Quarterly Report on Form 10-Q, including any date on which an amendment to any such document is filed (each such date, a “Company Periodic Report Date”), and (C) reasonable request by the Agent, the Forward Purchaser or the Forward Seller (each date of any such request by the Agent, a “Request Date”), the Company will furnish or cause to be furnished forthwith to the Agent, the Forward Purchaser and the Forward Seller a certificate dated the date of effectiveness of such amendment or the date of filing with the Commission of such supplement or other document, as the case may be, in a form reasonably satisfactory to the Agent, the Forward Purchaser and the Forward Seller to the effect that the statements contained in the certificate referred to in Section 5(h) of this Agreement which were last furnished to the Agent, the Forward Purchaser and the Forward Seller are true and correct at the time of such amendment, supplement or filing, as the case may be, as though made at and as of such time (except that such statements shall be deemed to relate to the Registration Statement, the Prospectus and the Pricing Disclosure Package as amended and supplemented to such time) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(h), but modified as necessary to relate to the Registration Statement, the Prospectus and the Pricing Disclosure Package as amended and supplemented, or to the documents incorporated by reference into the Prospectus, to the time of delivery of such certificate. As used in this paragraph, to the extent there shall be an Applicable Time on or following the date referred to in clause (A), (B) or (C) above, promptly shall be deemed to be on or prior to the next succeeding Applicable Time. The requirement to provide a certificate under this Section 3(a)(xiii) shall be waived for any Request Date occurring at a time at which no sales instructions are pending, which waiver shall continue until the earlier to occur of the date the Company provides sale instructions to the Agent, or a Forward Placement Notice to the Forward Purchaser and the Forward Seller pursuant to Section 2(b) herein and the next occurring date referred to in clause (A) or (B) above. Notwithstanding the foregoing, if the Company subsequently decides to sell Stock following a Request Date when the Company relied on such waiver and did not provide Agent, the Forward Purchaser and the Forward Seller with a certificate under this Section 3(a)(xiii), then before the Company provides sale instructions to the Agent, the Forward Purchaser or the Forward Seller or the Agent, the Forward Purchaser or the Forward Seller sells any Stock, the Company shall provide Agent, the Forward Purchaser and the Forward Seller with a certificate, in the form required under this Section 3(a)(xiii), dated the date of the sale instructions.
(xiv) Upon commencement of the offering of Stock under this Agreement, and promptly after each (A) Registration Statement Amendment Date, (B) Company Periodic Report Date, and (C) Request Date, the Company will furnish or cause to be furnished to the Agent, the Forward Purchaser and the Forward Seller and their respective counsel the written opinion and letter of each counsel to the Company, dated the date of effectiveness of such amendment or the date of filing with the Commission of such supplement or other document, as the case may be, in a form and substance reasonably satisfactory to the Agent, the Forward Purchaser and the Forward Seller and their respective counsel, of the same tenor as the opinions and letters referred to in Section 5(d) and (e) of this Agreement, but modified as necessary to relate to the Registration Statement, the Prospectus and the Pricing Disclosure Package as amended and supplemented, or to the documents incorporated by reference into the Prospectus, to the time of delivery of such opinion and letter or, in lieu of such opinion and letter, counsel last furnishing such letter to the Agent, the Forward Purchaser and the Forward Seller shall furnish the Agent, the Forward Purchaser and the Forward Seller with a letter substantially to the effect that the Agent, the Forward Purchaser and the Forward Seller may rely on such last opinion and letter to the same extent as though each were dated the date of such letter authorizing reliance (except that statements in such last letter shall be deemed to relate to the Registration Statement, the Prospectus and the Pricing Disclosure Package as amended and supplemented to the time of delivery of such letter authorizing reliance). As used in this paragraph, to the extent there shall be an Applicable Time on or following the date referred to in clause (A), (B) or (C) above, promptly shall be deemed to be on or prior to the next succeeding Applicable Time. The requirement to provide opinions and letters under this Section 3(a)(xiv) shall be waived for any Request Date occurring at a time at which no sales instructions are pending, which waiver shall continue until the earlier to occur of the date the Company provides sale instructions to the Agent or a Forward Placement Notice to the Forward Purchaser and the Forward Seller pursuant to Section 2(b) herein and the next occurring date referred to in clause (A) or (B) above. Notwithstanding the foregoing, if the Company subsequently decides to sell Stock following a Request Date when the Company relied on such waiver and did not provide Agent, the Forward Purchaser and the Forward Seller with opinions and letters under this Section 3(a)(xiv), then before the Company provides sale instructions to the Agent, the Forward Purchaser and the Forward Seller or the Agent, the Forward Purchaser and the Forward Seller sells any Stock, the Company shall provide Agent, the Forward Purchaser and the Forward Seller with opinions and letters, in the form required under this Section 3(a)(xiv), dated the date of the sale instructions.
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(xv) Upon commencement of the offering of Stock under this Agreement, and promptly after each (A) Registration Statement Amendment Date and (B) Company Periodic Report Date, the Company will cause PricewaterhouseCoopers LLP, or other independent accountants reasonably satisfactory to the Agent, the Forward Purchaser and the Forward Seller, to furnish to the Agent, the Forward Purchaser and the Forward Seller a letter, dated the date of effectiveness of such amendment or the date of filing of such supplement or other document with the Commission, as the case may be, in form reasonably satisfactory to the Agent, the Forward Purchaser and the Forward Seller and their respective counsel, of the same tenor as the letter referred to in Section 5(g) hereof, but modified as necessary to relate to the Registration Statement, the Prospectus and the Pricing Disclosure Package, as amended and supplemented, or to the documents incorporated by reference into the Prospectus, to the date of such letter. As used in this paragraph, to the extent there shall be an Applicable Time on or following the date referred to in clause (A) or (B) above, promptly shall be deemed to be on or prior to the next succeeding Applicable Time.
(xvi) The Company consents to the Agent, the Forward Purchaser and the Forward Seller trading in the Common Shares for the Agent’s, the Forward Purchaser’s and the Forward Seller’s own accounts, respectively, and for the accounts of their clients at the same time as sales of Stock occur pursuant to this Agreement. The Company acknowledges and agrees that the Agent, the Forward Purchaser and the Forward Seller shall be under no obligation to purchase shares of Stock on a principal basis pursuant to this Agreement, except as otherwise agreed by the Agent, the Forward Purchaser or the Forward Seller in writing.
(xvii) If to the knowledge of the Company, all filings required by Rule 424 and Rule 433 under the Securities Act in connection with this offering shall not have been made or the representation in Section 1(a) shall not be true and correct on the applicable Delivery Date, the Company will offer to any person who has agreed to purchase Stock from the Company as the result of an offer to purchase solicited by the Agent or the Forward Seller the right to refuse to purchase and pay for such Stock.
(xviii) The Company will disclose in its Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q, as applicable, the number of shares of Stock sold through the Agent, the Forward Purchaser and the Forward Seller under this Agreement, the net proceeds to the Company and the aggregate compensation paid by the Company with respect to sales of Stock pursuant to this Agreement during the relevant quarter.
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(xix) During each period commencing on the date of when the Company provides sale instructions to the Agent or a Forward Placement Notice to the Forward Purchaser and Forward Seller pursuant to Section 2(b) herein and ending on the later of (i) the date on which such sales instructions or Forward Placement Notice are terminated or revoked by the Company or (ii) after the close of business on the Delivery Date for the last sale under such sales instructions or Forward Placement Notice executed by the Agent or the Forward Purchaser and Forward Seller, as the case may be, prior to such termination or revocation, the Company and the Operating Partnership will not, without (A) giving the Agent, the Forward Purchaser and the Forward Seller at least one business day’s prior written notice specifying the nature of the proposed sale and the date of such proposed sale, and (B) the Agent, the Forward Purchaser and the Forward Seller suspending activity under this program for such period of time as requested by the Company or as deemed appropriate by the Agent, the Forward Purchaser or the Forward Seller in light of the proposed sale, pledge or disposition, as the case may be, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or might reasonably be expected to, result in the disposition of by the Company or the Operating Partnership) any Common Shares or securities convertible into or exchangeable for Common Shares, or sell or grant options, rights or warrants with respect to any Common Shares or securities convertible into or exchangeable for Common Shares, (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such Common Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Shares or other securities, in cash or otherwise, (3) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any Common Shares or securities convertible, exercisable or exchangeable into Common Shares or any other securities of the Company (other than any registration statement on Form S-8), or (4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Agent; provided, however, that the foregoing restrictions shall not prohibit the sale of Stock pursuant to this Agreement, and shall not prohibit the Company from issuing (A) Common Shares pursuant to (x) the dividend reinvestment component of the Company’s dividend reinvestment plan as in effect on the date of this Agreement, (y) any of the Company’s employee or trustee benefit plans, including upon exercise of share options granted pursuant thereto, as such plans are in effect on the date of this Agreement or (z) the exercise of contractual rights existing on the date of this Agreement by current and former holders of partnership or other interests in the Operating Partnership which may require or permit (in lieu of a payment in cash) the issuance of Common Shares by the Company, and (B) any securities (the “Acquisition Securities”) convertible into or exercisable, exchangeable or redeemable for Common Shares as consideration for the acquisition of real property, provided, that the Acquisition Securities are not convertible, exercisable, exchangeable or redeemable for or into Common Shares).
(xx) To apply the Net Proceeds from the sale of the Issuance Shares and the net proceeds received under the Master Forward Confirmation (and each “Supplemental Confirmation” under the Master Forward Confirmation) as set forth under “Use of Proceeds” in the Prospectus and the Pricing Disclosure Package.
(xxi) The Company, the Operating Partnership and their affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Stock.
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(xxii) The Company will use its best efforts to continue to qualify as a REIT under Sections 856 through 860 of the Code unless the Company’s Board of Trustees determines that it is no longer in the best interests of the Company to be so qualified.
(xxiii) The Company will use its best efforts to cause the shares of Stock to be duly authorized for listing by the NYSE prior to the first Delivery Date and to maintain the listing of the shares of Stock on the NYSE for a period of two years after the first Delivery Date and thereafter unless the Company’s Board of Trustees determines that it is no longer in the best interests of the Company.
(xxiv) The Company and the Operating Partnership will do and perform all things required or necessary to be done and performed under this Agreement by it prior to each Delivery Date, and to satisfy all conditions precedent to the Agent’s, the Forward Purchaser’s and the Forward Seller’s obligations hereunder.
(b) The Agent, the Forward Purchaser and the Forward Seller each agree that it shall not include any “issuer information” (as defined in Rule 433 under the Securities Act) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act) used or referred to by the Agent, the Forward Purchaser or the Forward Seller in connection with the offering or sale of the Stock without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”); provided that (i) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus, and (ii) “issuer information,” as used in this Section 3(b), shall not be deemed to include information prepared by or on behalf of the Agent on the basis of or derived from issuer information.
4. Expenses
(a) The Company agrees with the Agent, the Forward Purchaser and the Forward Seller whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, to pay all costs, expenses, fees and taxes incident to and in connection with (i) the authorization, issuance, sale and delivery of the Stock and any stamp duties or other taxes payable in that connection, and the preparation and printing of any certificates for the Stock; (ii) the preparation, printing and filing under the Securities Act of the Registration Statement (including any exhibits thereto), the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto; (iii) the distribution of the Registration Statement (including any exhibits thereto), the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto, or any document incorporated by reference therein, all as provided in this Agreement; (iv) the production and distribution of this Agreement and the Master Forward Confirmation (and each “Supplemental Confirmation” under the Master Forward Confirmation), and any other related documents in connection with the offering, purchase, sale and delivery of the Stock; (vi) the listing of the Stock on the NYSE and/or any other exchange; (vii) the qualification of the Stock under the securities laws of the several jurisdictions as provided in Section 3(a)(x) and the preparation, printing and distribution of a Blue Sky Memorandum (including related fees and expenses of counsel to the Agent); (viii) the preparation, printing and distribution of one or more versions of the Prospectus for distribution in Canada, often in the form of a Canadian “wrapper” (including related fees and expenses of Canadian counsel to the Agent, the Forward Purchaser or the Forward Seller); (ix) the reasonable fees and disbursements of the Company’s counsel and of the Company’s accountants; and (x) all other costs and expenses incident to the performance of the obligations of the Company and the Operating Partnership under this Agreement; provided that, except as provided in this Section 4(a) and Section 6, each of the Agent, the Forward Purchaser or the Forward Seller shall pay its own out-of-pocket costs and expenses and the expenses of advertising any offering of the Stock made by the Agent, the Forward Purchaser or the Forward Seller; provided further, that if shares of Stock having an aggregate offering price of $20,000,000 or more have not been offered and sold under this Agreement and the Alternative Sales Agreements, collectively, by the one-year anniversary of this Agreement (or such earlier date at which the Company terminates this Agreement) (the “Determination Date”), the Company shall reimburse the Agent, the Forward Purchaser and the Forward Seller for all reasonable out-of-pocket expenses, including the reasonable fees and disbursements of counsel incurred by the Agent, the Forward Purchaser or the Forward Seller in connection with the transactions contemplated by this Agreement (the “Expenses”); provided, however, that the Expenses shall not exceed an aggregate amount under this Agreement and the Alternative Sales Agreements of $250,000. Any Expenses shall be due and payable by the Company within five business days of the Determination Date.
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5. Conditions of Agent’s, the Forward Purchaser’s and the Forward Seller’s Obligations. The obligations of the Agent, the Forward Purchaser and the Forward Seller hereunder are subject to the accuracy, when made and on the date of this Agreement, each Registration Statement Amendment Date, each Company Periodic Report Date, each Request Date, each Applicable Time and each Delivery Date, of the representations and warranties of the Company and the Operating Partnership contained herein, to the performance by each of the Company and the Operating Partnership of their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus Supplement shall have been filed with the Commission pursuant to Rule 424(b) on or prior to the date hereof and the Company shall have complied with all other requirements applicable to the Prospectus or any supplement thereto under Rule 424(b) (without giving effect to Rule 424(b)(8)). If applicable, the Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the date hereof. No stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination for such purpose shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto.
(b) The Agent, the Forward Purchaser and the Forward Seller shall not have discovered and disclosed to the Company that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Morrison & Foerster LLP, counsel for the Agent, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Transaction Documents, the Stock, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to the Transaction Documents and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Agent and the Forward Seller, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Morgan, Lewis & Bockius LLP shall have furnished to the Agent, the Forward Purchaser and the Forward Seller its written opinion, as counsel to the Company, addressed to the Agent, the Forward Purchaser and the Forward Seller and delivered and dated on each date specified in Section 3(a)(xiv) hereof, in form and substance satisfactory to the Agent, the Forward Purchaser and the Forward Seller substantially in the form attached hereto as Exhibit A-1.
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(e) Saul Ewing Arnstein & Lehr LLP shall have furnished to the Agent, the Forward Purchaser and the Forward Seller its written opinion, as special Maryland law counsel to the Company, addressed to the Agent, the Forward Purchaser and the Forward Seller and delivered and dated on each date specified in Section 3(a)(xiv) hereof, in form and substance satisfactory to the Agent, the Forward Purchaser and the Forward Seller substantially in the form attached hereto as Exhibit A-2.
(f) The Agent, the Forward Purchaser and the Forward Seller shall have received from Morrison & Foerster LLP, counsel for the Agent, such opinion and negative assurance letter, delivered and dated on each date specified in Section 3(a)(xiv) hereof, in form and substance reasonably satisfactory to the Agent, the Forward Purchaser and the Forward Seller, with respect to the issuance and sale of the Stock, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Agent, the Forward Purchaser and the Forward Seller may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) At the dates specified in Section 3(a)(xv) hereof, the Agent and the Forward Seller shall have received from PricewaterhouseCoopers LLP a letter, in form and substance satisfactory to the Agent, the Forward Purchaser and the Forward Seller addressed to the Agent and the Forward Seller and dated the date of delivery thereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date of delivery thereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus and the Pricing Disclosure Package, as of a date not more than four days prior to the date of delivery thereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” in connection with registered public offerings.
(h) (a) Upon commencement of the offering of Stock under this Agreement, the Company shall have furnished to the Agent, the Forward Purchaser and the Forward Seller a certificate of an officer in a form satisfactory to the Agent, the Forward Purchaser and the Forward Seller stating the minimum price for the sale of such Stock pursuant to this Agreement and the maximum number of shares of Stock that may be issued and sold pursuant to this Agreement or, alternatively, maximum gross proceeds from such sales, as authorized from time to time by the Company’s Board of Trustees or a duly authorized committee thereof or, in connection with any amendment, revision or modification of such minimum price or maximum amount, a new certificate with respect thereto, and (b) on each date specified in Section 3(a)(xiii), the Company shall have furnished to the Agent, the Forward Purchaser and the Forward Seller a certificate, dated such date, of its Chief Executive Officer and its Chief Financial Officer as to such matters as the Agent, the Forward Purchaser and the Forward Seller may reasonably request, including, without limitation, a statement that:
(A) All the representations and warranties of the Company in this Agreement shall be true and correct, on and as of the applicable date specified in Section 3(a)(xiii). The Company has complied with all agreements and all conditions on its part to be performed or satisfied hereunder at or prior to such applicable date;
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(B) The Registration Statement has become effective under the Securities Act; the Prospectus and any Issuer Free Writing Prospectus shall have been filed with the Commission pursuant to Rule 424(b) (in the case of the Issuer Free Writing Prospectus, to the extent required under Rule 433) within the applicable time period prescribed for such filing by such Rule and prior to the time the Prospectus was distributed to the Agent, the Forward Purchaser and the Forward Seller; no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or the Pricing Disclosure Package or any amendment or supplement thereto has been issued, and no proceedings for that purpose have been instituted or are pending before, or threatened or, to the Company’s knowledge, after due inquiry, are contemplated by the Commission; no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no order directed at any document incorporated by reference in the Registration Statement, the Prospectus or the Pricing Disclosure Package or any amendment or supplement thereto has been issued, and no proceedings for that purpose have been instituted or are pending before, or threatened or, to the best of the Company’s knowledge, after due inquiry, are contemplated by the state securities authority of any jurisdiction; and
(C) Subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus and the Pricing Disclosure Package, other than as set forth in or contemplated by the Registration Statement, the Prospectus and the Pricing Disclosure Package (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) and prior to the applicable date specified in Section 3(a)(xiii), except for changes of a general nature applicable to all real estate investment trusts investing in commercial office properties, (i) there has not occurred any material adverse change or, to the best knowledge of such persons, any development involving a prospective material adverse change in the condition, financial or otherwise, or the results of operations, business, prospects, management or operations of the Company and the Subsidiaries, taken as a whole, (ii) there has been no casualty loss or condemnation or other adverse event with respect to any of the properties which would be material to the Company and the Subsidiaries, taken as a whole, (iii) there has not been any material adverse change or any development involving a prospective material adverse change in the capitalization, long-term or short-term debt or in the shares of beneficial interest or equity of the Company or any of the Subsidiaries, (iv) except as described in the Prospectus or the Pricing Disclosure Package, neither the Company nor any of the Subsidiaries has incurred any material liability or obligation, direct or contingent, which would be material, nor have they entered into any transactions, other than pursuant to this Agreement and the transactions referred to herein or as contemplated in the Prospectus and the Pricing Disclosure Package, which would be material, to the Company and its Subsidiaries taken as a whole, and (v) except for regular quarterly distributions on the Stock and other securities issued by the Company, the Company has not paid or declared and will not pay or declare any dividends or other distributions of any kind on any class of its shares of beneficial interest except in the ordinary course of business consistent with such practice.
(D) The maximum number of shares of Stock that may be issued and sold pursuant to the Sales Agreements is 20,800,000 shares and the maximum gross proceeds from such sales of Stock is $300,000,000, as authorized by the Company’s Board of Trustees.
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(i) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Company and its Subsidiaries taken as one enterprise which, in the judgment of the Agent, the Forward Purchaser or the Forward Seller, is material and adverse and makes it impractical or inadvisable to proceed with the offering or the sale of the Stock on the terms and in the manner contemplated in the Prospectus; (ii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Agent, the Forward Purchaser or the Forward Seller be likely to prejudice materially the success of the proposed issue, sale or distribution of the Stock, whether in the primary market or in respect of dealings in the secondary market; (iii) any material suspension or material limitation of trading in securities generally on the NYSE, or any setting of minimum prices for trading on such exchange; (iv) any banking moratorium declared by U.S. Federal or New York authorities; (v) any major disruption of settlements of securities or clearance services in the United States; (vi) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Agent, the Forward Purchaser or the Forward Seller the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with the offering or the sale of the Stock on the terms and in the manner contemplated in the Prospectus; or (vii) any suspension of trading of any securities of the Company and the Operating Partnership on any exchange or in the over-the-counter market.
(j) The Stock shall have been approved for listing on the NYSE, subject to official notice of issuance.
(k) On or prior to each Delivery Date, the Company shall have furnished to the Agent, the Forward Purchaser and the Forward Seller such further certificates and documents as the Agent, the Forward Purchaser or the Forward Seller may reasonably request.
All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Agent, the Forward Purchaser and the Forward Seller.
6. Indemnification and Contribution.
(a) The Company and the Operating Partnership will jointly and severally indemnify and hold harmless the Agent, the Forward Purchaser and the Forward Seller, each of their respective affiliates, partners, directors and officers and each person, if any, who controls the Agent, the Forward Purchaser or the Forward Seller within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, against any losses, claims, damages or liabilities, joint or several, to which the Agent, the Forward Purchaser or the Forward Seller may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus (as amended or supplemented) or any other prospectus relating to the Stock, or any amendment or supplement thereto (including the information deemed to be a part of the Registration Statement pursuant to Rule 434 under the Securities Act, if applicable), or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the Agent, the Forward Purchaser or the Forward Seller for any legal or other expenses reasonably incurred by the Agent, the Forward Purchaser or the Forward Seller in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Prospectus as amended or supplemented or any other prospectus relating to the Stock or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by the Agent, the Forward Purchaser or the Forward Seller for use therein, it being understood and agreed that the only such information furnished by the Agent, the Forward Purchaser or the Forward Seller consists of the information described as such in subsection (b) below by the Agent, the Forward Purchaser or the Forward Seller expressly for use in in the Registration Statement, the Prospectus or the Pricing Disclosure Package.
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(b) The Agent, the Forward Purchaser and the Forward Seller will indemnify and hold harmless the Company, its trustees and officers and each person, if any who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, against any losses, claims, damages or liabilities to which the Company may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus (as amended or supplemented) or any other prospectus relating to the Stock, or any amendment or supplement thereto (including the information deemed to be a part of the Registration Statement pursuant to Rule 434 under the Securities Act, if applicable), or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, 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 Prospectus, any Issuer Free Writing Prospectus (as amended or supplemented) or any other prospectus relating to the Stock or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by the Agent, the Forward Purchaser or the Forward Seller expressly for use therein; and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as to which the Company shall be entitled to indemnification under this subsection (b) as such expenses are incurred, it being understood and agreed that the only such information furnished by the Agent, the Forward Purchaser and the Forward Seller consists of the following information in the Registration Statement, the Prospectus or the Pricing Disclosure Package furnished by the Agent, the Forward Purchaser and the Forward Seller: the legal name of the Agent, the Forward Purchaser and the Forward Seller in the Prospectus Supplement dated the date hereof.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under subsection (a) or (b) above, except to the extent such omission so to notify the indemnifying party materially prejudices the indemnifying party. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel (unless separate counsel is required due to conflict of interest) or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromises or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim 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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(d) If the indemnification provided for in this Section 6 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Agent, the Forward Purchaser and the Forward Seller on the other from the offering of the Stock to which such loss, claim, damage or liability (or action in respect thereof) relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Agent, the Forward Purchaser and the Forward Seller on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by each of the Company, the Agent, the Forward Purchaser and the Forward Seller shall be equal to the sum of (a) in the case of the Company, (x) the Actual Sold Forward Amount for each Forward under this Agreement, multiplied by the Forward Hedge Price for such Forward, and (y) the aggregate market price for the Issuance Shares sold by the Agent under this Agreement, (b) in the case of the Agent, the total commissions received from the sale of Issuance Shares under this Agreement, (c) in the case of a Forward Seller, the Actual Sold Forward Amount for each Forward under this Agreement, multiplied by the Forward Hedge Selling Commission for such Forward, and (d) in the case of a Forward Purchaser, the net Spread (as such term is defined in the relevant Forward Contract and net of any related stock borrow costs or other costs or expenses actually incurred) multiplied by the Forward Hedge Amount for each Forward Contract executed in connection with this Agreement. The relative fault of the Company, on the one hand, and of the Agent, the Forward Purchasers and the Forward Sellers, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by each such party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company, the Agent, the Forward Purchaser and the Forward Seller agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), (i) the Agent shall not be required to contribute any amount in excess of (x) the amount by which the total price at which the Issuance Shares sold by it and distributed to the public were offered to the public exceeds the amount of any damages which the Agent has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission, (ii) the Forward Seller shall not be required to contribute any amount in excess of the aggregate Forward Hedge Selling Commissions received by it under this Agreement and (iii) a Forward Purchaser shall in no event be required to contribute any amount in excess of the net Spread (as such term is defined in the relevant Forward Contract and net of any related stock borrow costs or other costs or expenses actually incurred) multiplied by the Forward Hedge Amount for all Forward Contracts executed in connection with this Agreement. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
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(e) The obligations of the Company and the Operating Partnership under this Section 6 shall be in addition to any liability which the Company and the Operating Partnership may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls the Agent, the Forward Purchaser or the Forward Seller within the meaning of the Securities Act; and the obligations of the Agent, the Forward Purchaser or the Forward Seller under this Section 6 shall be in addition to any liability which the Agent, the Forward Purchaser or the Forward Seller may otherwise have and shall extend, upon the same terms and conditions, to each officer of the Company who signed the Registration Statement, trustee of the Company and to each person, if any, who controls the Company within the meaning of the Securities Act.
7. Termination.
(a) The Company shall have the right, by giving written notice as hereinafter specified, to terminate this Agreement in its sole discretion at any time. Any such termination shall be without liability of any party to any other party except that with respect to any pending sale through the Agent or the Forward Seller for the Company, the obligations of the Company, including in respect of compensation of the Agent or the Forward Seller, shall remain in full force and effect notwithstanding such termination and the provisions of Sections 4, 6, 7, 8, 9, 10, 11, 13, 15 and 16 of this Agreement shall remain in full force and effect notwithstanding such termination.
(b) The Agent or the Forward Seller shall have the right, by giving written notice as hereinafter specified, to terminate this Agreement in its sole discretion at any time. Any such termination shall be without liability of any party to any other party except that the provisions of Sections 1, 4, 6 and 13 of this Agreement shall remain in full force and effect notwithstanding such termination.
(c) This Agreement shall remain in full force and effect unless terminated pursuant to Section 7(a) or (b) above or otherwise by mutual agreement of the parties; provided that any such termination by mutual agreement or pursuant to this clause (c) shall in all cases be deemed to provide that Sections 1, 4, 6 and 13 of this Agreement 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 the Agent, the Forward Purchaser, the Forward Seller or the Company, as the case may be. If such termination shall occur prior to the Delivery Date for any sale of Stock, such sale shall settle in accordance with the provisions of Section 2(i) hereof.
(e) Each of the Company, the Operating Partnership, the Agent, Forward Purchaser and Forward Seller acknowledges the termination of the prior sales agreement, dated November 13, 2018, as amended (the “Prior Sales Agreement”), by and among the Company, the Operating Partnership, Barclays Bank PLC and Barclays Capital Inc. pursuant to Section 7(a) of the Prior Sales Agreement (provided that the provisions listed in Section 7(a) shall remain in effect) and hereby waive the notice requirements pursuant to Section 7(a) of the Prior Sales Agreement.
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8. Research Analyst Independence. The Company acknowledges that the research analysts and research departments of the Agent, the Forward Purchaser and Forward Seller are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies, and that the research analysts of the Agent, the Forward Purchaser and Forward Seller may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company and/or the offering that differ from the views of investment banking divisions of the Agent, the Forward Purchaser or Forward Seller. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Agent, the Forward Purchaser and Forward Seller with respect to any conflict of interest that may arise from the fact that the views expressed by their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company by the investment banking divisions of the Agent, the Forward Purchaser and Forward Seller. The Company acknowledges that the Agent, the Forward Purchaser and Forward Seller are each a full service securities firm and as such from time to time, are subject to applicable securities laws, and each may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that may be the subject of the transactions contemplated by this Agreement.
9. No Fiduciary Duty. Each of the Company and the Operating Partnership acknowledges and agrees that:
(a) the Agent, Forward Purchaser and Forward Seller have been acting solely as sales agent or principal in connection with the sale of the Stock and that no fiduciary, advisory or agency relationship between the Company, the Operating Partnership, on the one hand, and the Agent, Forward Purchaser and Forward Seller on the other, has been created in respect of any of the transactions contemplated by this Agreement, irrespective of whether the Agent, Forward Purchaser and Forward Seller have advised or is advising the Company or the Operating Partnership on other matters;
(b) the terms of the offering of the Stock set forth in this Agreement was established by the Company and the Operating Partnership following discussions and arms-length negotiations with the Agent, Forward Purchaser and Forward Seller, and each of the Company and the Operating Partnership is capable of evaluating and understanding and understand and accept the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) it has been advised that the Agent, Forward Purchaser and Forward Seller and their respective affiliates are engaged in a broad range of transactions that may involve interests that differ from those of the Company or the Operating Partnership and that the Agent, Forward Purchaser and Forward Seller have no obligation to disclose such interests and transactions to the Company or the Operating Partnership by virtue of any fiduciary, advisory or agency relationship; and
(d) it waives, to the fullest extent permitted by law, any claims it may have against the Agent, Forward Purchaser and Forward Seller for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that Agent, Forward Purchaser and Forward Seller shall have no liability (whether direct or indirect) to the Company or the Operating Partnership in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Company or the Operating Partnership, including shareholders, partners, employees or creditors of the Company or the Operating Partnership.
10. Notices, etc. All statements, requests, notices and agreements hereunder shall be in writing, and:
(a) if to the Agent, shall be delivered or sent by mail or facsimile transmission to Barclays Capital Inc., 745 Seventh Avenue, New York, NY 10019, Attention: Syndicate Registration (Fax: 646-834-8133), with a copy that shall not constitute as notice to Morrison & Foerster LLP, 250 West 55th Street, New York, New York 10019, Attention: Larry Medvinsky (email: LMedvinsky@mofo.com); provided, however, that any notice to the Agent pursuant to Section 6 will be mailed, delivered or telegraphed and confirmed to the Agent;
38
(b) if to the Forward Purchaser, shall be delivered or sent by mail transmission to Barclays Bank PLC, 5 The North Colonnade, Canary Wharf, London E14 4BB, Telephone: +44 (20) 777 36810 c/o Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019, Attention: Ilya Blanter (Tel. No.: 212-526-3209, Fax: 917-522-0458, Email: ilya.blanter@barclays.com), with a copy that shall not constitute as notice to Morrison & Foerster LLP, 250 West 55th Street, New York, New York 10019, Attention: Larry Medvinsky (email: LMedvinsky@mofo.com); provided, however, that any notice to the Forward Purchaser pursuant to Section 6 will be mailed, delivered or telegraphed and confirmed to the Forward Purchaser;
(c) if to the Forward Seller, shall be delivered or sent by mail or facsimile transmission to Barclays Capital Inc., 745 Seventh Avenue, New York, NY 10019, Attention: Syndicate Registration (Fax: 646-834-8133), with a copy that shall not constitute as notice to Morrison & Foerster LLP, 250 West 55th Street, New York, New York 10019, Attention: Larry Medvinsky (email: LMedvinsky@mofo.com); provided, however, that any notice to the Forward Seller pursuant to Section 6 will be mailed, delivered or telegraphed and confirmed to the Forward Seller;
(d) if to the Company, shall be delivered or sent by mail or facsimile transmission to the address of the Company set forth in the Registration Statement, Attention: General Counsel (Fax: (443) 285-7652); and
Any such statements, requests, notices or agreements shall take effect at the time of receipt thereof. The Company shall be entitled to act and rely upon any request, consent, notice or agreement given or made by the Agent.
11. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the Company, the Agent, the Forward Purchaser, the Forward Seller and their respective successors. This Agreement and the terms and provisions hereof are for the sole benefit of only those persons, except that (a) the representations, warranties, indemnities and agreements of the Company contained in this Agreement shall also be deemed to be for the benefit of the directors, officers and employees of the Agent, the Forward Purchaser and the Forward Seller and each person or persons, if any, who control the Agent, the Forward Purchaser or the Forward Seller within the meaning of Section 15 of the Securities Act, and (b) the indemnity agreement of the Agent, the Forward Purchaser and the Forward Seller contained in Section 6(b) of this Agreement shall be deemed to be for the benefit of the trustees of the Company, the officers of the Company who have signed the Registration Statement and any person controlling the Company within the meaning of Section 15 of the Securities Act. Nothing in this Agreement is intended or shall be construed to give any person, other than the persons referred to in this Section 11, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein.
12. Qualified Financial Contract. In the event that any party to this Agreement is not a company (i) that is incorporated or organized under the laws of the United States or any state thereof or (ii) with its principal place of business in the United States or any State thereof, then the following provisions shall be applicable to this Agreement and any transaction hereunder:
(a) In the event that the Agent, the Forward Purchaser or the Forward Seller that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such party that is a Covered Entity 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 interest and obligation in or under this Agreement, were governed by the laws of the United States or a state of the United States.
39
(b) In the event that the Agent, the Forward Purchaser or the Forward Seller that is a Covered Entity or a BHC Act Affiliate of the Agent, the Forward Purchaser or the Forward Seller that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, any Default Rights under this Agreement that may be exercised against such party that is a Covered Entity are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime.
For purposes of this Section 12, the following terms shall have the following meaning:
“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) or 1813(w), as applicable.
“Covered Entity” means: (i) a subsidiary of a bank holding company that is identified as a global systemically important BHC pursuant to 12 C.F.R. § 217.402; or (ii) a U.S. subsidiary, U.S. branch or U.S. agency of a top-tier foreign banking organization that is identified as a global systemically important foreign banking organization pursuant to 12 C.F.R. § 252.153(b)(4).
“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.
13. Survival. The respective indemnities, representations, warranties and agreements of the Company, the Operating Partnership, the Agent, the Forward Purchaser and the Forward Seller contained in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall survive the delivery of and payment for the Stock and shall remain in full force and effect, regardless of any investigation made by or on behalf of any of them or any person controlling any of them.
14. Definition of the Terms “Business Day” and “Affiliate”. For purposes of this Agreement, (a) “business day” means each Monday, Tuesday, Wednesday, Thursday or Friday on which the NYSE is open for trading and that is not a day on which banking institutions in New York are generally authorized or obligated by law or executive order to close, and (b) “affiliate” has the meaning set forth in Rule 405 under the Securities Act.
15. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to conflict of laws principles that would result in the application of any other law than the laws of the State of New York (other than Section 5-1401 of the General Obligations Law).
16. Waiver of Jury Trial. The Company, the Agent, the Forward Purchaser and the Forward Seller hereby irrevocably waive, 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 or the transactions contemplated hereby.
17. Counterparts. This Agreement may be executed in one or more counterparts and, if executed in more than one counterpart, the executed counterparts shall each be deemed to be an original but all such counterparts shall together constitute one and the same instrument. The words “execution,” “signed,” “signature,” and words of like import in this Agreement or in any other certificate, agreement or document related to this Agreement shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
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18. Headings. The headings herein are inserted for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
19. Successors and Assigns.
(a) This Agreement shall be binding upon the Agent, the Forward Purchaser, the Forward Seller, the Company, the Operating Partnership and their successors and assigns and any successor or assign of any substantial portion of the Company’s, the Operating Partnership’s, the Agent’s, Forward Purchaser’s and Forward Seller’s respective businesses and/or assets. The parties hereby agree that the Agent, the Forward Purchaser and/or the Forward Seller may, without notice to the Company or the Operating Partnership, assign its rights and obligations under this Agreement to any of its affiliates or any other registered broker-dealer to which all or substantially all of such Agent’s investment banking or related business may be transferred following the date of this Agreement.
(b) In the event the Forward Purchaser (the “Previous Forward Purchaser”) is replaced as a party hereunder by its affiliate (the “New Forward Purchaser”), then, from the date of such transfer or assignment, the New Forward Purchaser shall for all purposes of this Agreement be substituted for the Previous Forward Purchaser as a Forward Purchaser party hereto (as assignee of the Previous Forward Purchaser).
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If the foregoing correctly sets forth the agreement between the Company, the Operating Partnership, the Agent, the Forward Purchaser and the Forward Seller please indicate your acceptance in the space provided for that purpose below.
| Very truly yours, | ||
| CORPORATE OFFICE PROPERTIES TRUST | ||
By: |
/s/ Stephen E. Budorick | |
| Stephen E. Budorick | ||
| President and Chief Executive Officer | ||
CORPORATE OFFICE PROPERTIES, L.P. | ||
| BY: | CORPORATE OFFICE PROPERTIES TRUST, | |
| its sole general partner | ||
By: |
/s/ Stephen E. Budorick | |
| Stephen E. Budorick | ||
| President and Chief Executive Officer | ||
[Signature Page to Sales Agreement]
| Accepted: | ||
Barclays Capital Inc. |
||
| as Agent | ||
By: |
/s/ Ernest Kwarteng |
|
| Authorized Representative | ||
Barclays Bank PLC |
||
| as Forward Purchaser | ||
By: |
/s/ Ernest Kwarteng |
|
| Authorized Representative | ||
Barclays Capital Inc. |
||
| as Forward Seller | ||
By: |
/s/ Ernest Kwarteng |
|
| Authorized Representative | ||
[Signature Page to Sales Agreement]
SCHEDULE I
SUBSIDIARIES
| Name | Jurisdiction of Incorporation/Formation |
Foreign Qualification |
| Corporate Office Properties Trust | Maryland | DC |
| Limited & General Partnerships | ||
| Corporate Office Properties, L.P. | Delaware | MD, VA, AL, DC |
| COPT 8000 Potranco, L.P. | Texas | |
| COPT 8030 Potranco, L.P. | Texas | |
| COPT 8100 Potranco, L.P. | Texas | |
| COPT San Antonio, L.P. | Texas | |
| COPT San Antonio II, L.P. | Texas | |
| COPT SA Technology Center, L.P. | Texas | |
| COPT Westpointe 3A, L.P. | Texas | |
| COPT Westpointe 4, L.P. | Texas | |
| Corporations | ||
| Corporate Office Management, Inc. | Maryland | VA |
| Corporate Office Properties Holdings, Inc. | Delaware | PA |
| COPT Acquisitions, Inc. | Delaware | MD, VA, DC, AL, TX |
| Nottingham Ridge Holding Corp. | Maryland | |
| Limited Liability Companies | ||
| Advanced Gateway 7500, LLC | Delaware | |
| Advanced Gateway 7600, LLC | Delaware | |
| Advanced Gateway 8600, LLC | Delaware | |
| Airport Square, LLC | Maryland | |
| Airport Square IV, LLC | Maryland | |
| Airport Square V, LLC | Maryland | |
| Airport Square XI, LLC | Maryland | |
| Airport Square XIII, LLC | Maryland | |
| Airport Square XXII, LLC | Maryland | |
| Airport Square Holdings I, LLC | Delaware | MD |
| Airport Square Holdings VI and VII, LLC | Delaware | MD |
| Name | Jurisdiction of Incorporation/Formation |
Foreign Qualification |
| Airport Square Partners, LLC | Maryland | |
| Airport Square Storms, LLC | Maryland | |
| AP#5 Lot A, LLC | Maryland | |
| AP#5 Lot B, LLC | Maryland | |
| AP#5 Lot C, LLC | Maryland | |
| Arundel Preserve #5, LLC | Maryland | |
| C. Texas SG, LLC | Texas | |
| Cabin Branch Creek, LLC | Texas | |
| Clarks Hundred, LLC | Maryland | |
| Clarks Hundred II, LLC | Maryland | |
| Colgatedrive Associates, LLC | Maryland | PA |
| Columbia Equity Finance, LLC | Maryland | |
| Columbia Gateway S-28, L.L.C. | Maryland | |
| COMI Investments, LLC | Maryland | VA |
| Commons Office Research, LLC | Maryland | |
| Commons Office 6-B, LLC | Maryland | |
| COPT Aberdeen, LLC | Maryland | |
| COPT AP 9, LLC | Maryland | |
| COPT Arundel Preserve, LLC | Maryland | |
| COPT Baltimore County I, LLC | Maryland | |
| COPT Baltimore County II, LLC | Maryland | |
| COPT BK Holdco, LLC | Delaware | |
| COPT BK Holdco II, LLC (formed 10/15/2020) | Delaware | |
| COPT BK Holdco III, LLC | Delaware | |
| COPT Bridge Street Office, LLC | Alabama | |
| COPT Brock Bridge, LLC | Maryland | |
| COPT CC 1600, LLC | Maryland | |
| COPT CC Bulkhead, LLC | Maryland | |
| COPT CC D1, LLC | Maryland | |
| COPT CC Holding, LLC | Maryland | |
| COPT CC Parking, LLC | Maryland | |
| COPT CC Tower, LLC | Maryland | |
| COPT CCW I, LLC | Maryland | |
| COPT CCW II, LLC | Maryland | |
| COPT CCW III, LLC | Maryland |
| Name | Jurisdiction of Incorporation/Formation |
Foreign Qualification |
| COPT Connect, LLC | Virginia | |
| COPT Dahlgren, LLC | Virginia | |
| COPT Dahlgren I, LLC | Virginia | |
| COPT Dahlgren II, LLC | Virginia | |
| COPT Dahlgren IV, LLC | Virginia | |
| COPT Dahlgren Land, LLC | Virginia | |
| COPT Data Management, LLC | Maryland | |
| COPT DC AZ, LLC | Delaware | AZ |
| COPT DC Innovation, LLC | Virginia | |
| COPT Development & Construction Services, LLC | Maryland | VA, TX, AL, DC |
| COPT Frederick, LLC | Maryland | |
| COPT Gate 63, LLC | Maryland | |
| COPT Gate 6700-6708-6724, LLC | Maryland | |
| COPT General, LLC | Maryland | |
| COPT Greens I, LLC | Virginia | |
| COPT Greens II, LLC | Virginia | |
| COPT Greens III, LLC | Virginia | |
| COPT Harbour’s Edge, LLC | Maryland | |
| COPT Huntsville, LLC | Maryland | |
| COPT-Kirk AP#5, LLC | Maryland | |
| COPT Maritime I & II, LLC | Delaware | DC |
| COPT McLearen, LLC | Virginia | |
| COPT Metro Place II, LLC | Virginia | |
| COPT Northgate A, LLC | Maryland | |
| COPT Northgate B, LLC | Maryland | |
| COPT Northgate C, LLC | Maryland | |
| COPT Northgate D, LLC | Maryland | |
| COPT Northgate H, LLC | Maryland | |
| COPT Northgate I, LLC | Maryland | |
| COPT Powerhouse, LLC | Maryland | |
| COPT Park Meadow, LLC | Virginia | |
| Parkstone Tech Park, LLC (name changed) | Virginia | |
| COPT Pres Investment, LLC | Maryland | |
| COPT Property Management Services, LLC | Maryland | DC, VA, TX, AL |
| COPT Renovation, LLC | Maryland |
| Name | Jurisdiction of Incorporation/Formation |
Foreign Qualification |
| COPT Ridgeview I, LLC | Virginia | |
| COPT Ridgeview II & III, LLC | Virginia | |
| COPT Riverwood, LLC | Maryland | |
| COPT San Antonio General, LLC | Texas | |
| COPT Stevens Place, LLC | Delaware | |
| COPT Sunrise, LLC | Virginia | |
| COPT Stonecroft, LLC | Virginia | |
| COPT Sunrise, LLC | Virginia | |
| COPT T-11, LLC | Maryland | |
| COPT Virtru, LLC | Maryland | |
| Corporate Development Services, LLC | Maryland | VA |
| Corporate Gatespring, LLC | Maryland | |
| Corporate Gatespring II, LLC | Maryland | |
| Corporate Office Services, LLC | Maryland | |
| Delaware Airport VIII, LLC | Delaware | MD |
| Delaware Airport IX, LLC | Delaware | MD |
| Enterprise Campus Developer, LLC | Maryland | |
| Fifth Exploration, L.L.C. | Maryland | |
| Fourth Exploration, L.L.C. | Maryland | |
| Gateway 44, LLC | Maryland | |
| Gateway 67, LLC | Maryland | |
| Gateway 70, LLC | Maryland | |
| Gateway Crossing 95, LLC | Maryland | |
| Great Mills I, L.L.C. | Delaware | |
| Great Mills II, L.L.C. | Delaware | |
| Great Mills III, L.L.C. | Delaware | |
| Great Mills IV, L.L.C. | Delaware | MD |
| Great Mills V, L.L.C. | Delaware | MD |
| Honeyland 108, LLC | Maryland | |
| Huntsville Holdings, LLC | Maryland | |
| Jolly COPT I, LLC | Maryland | |
| Jolly COPT II, LLC | Maryland | |
| LW Redstone Company, LLC | Delaware | AL |
| Maries Tech Park II, LLC | Virginia | |
| Maritime Holdings, LLC | Maryland |
| Name | Jurisdiction of Incorporation/Formation |
Foreign Qualification |
| M Square Associates, LLC | Maryland | |
| M Square Park, LLC | Maryland | |
| M Square 4600, LLC | Maryland | |
| M Square 5801, LLC | Maryland | |
| M Square 5825, LLC | Maryland | |
| M Square 5850, LLC | Maryland | |
| MOR Forbes, LLC | Maryland | |
| NBP Huff & Puff, LLC | Maryland | |
| NBP One, LLC | Maryland | |
| NBP Lot 3-A, LLC | Maryland | |
| NBP Retail, LLC | Maryland | |
| NBP 131 LLC | Maryland | |
| NBP 132, LLC | Maryland | |
| NBP 133, LLC | Maryland | |
| NBP 134, LLC | Maryland | |
| NBP 135, LLC | Maryland | |
| NBP 140, LLC | Maryland | |
| NBP 141, LLC | Maryland | |
| NBP 191, LLC | Maryland | |
| NBP 201, LLC | Maryland | |
| NBP 211, LLC | Maryland | |
| NBP 220, LLC | Maryland | |
| NBP 221, LLC | Maryland | |
| NBP 300, LLC | Maryland | |
| NBP 300 Restaurant, LLC | Maryland | |
| NBP 302, LLC | Maryland | |
| NBP 304, LLC | Maryland | |
| NBP 306, LLC | Maryland | |
| NBP 308, LLC | Maryland | |
| NBP 310, LLC | Maryland | |
| NBP 312, LLC | Maryland | |
| NBP 314, LLC | Maryland | |
| NBP 316, LLC | Maryland | |
| NBP 318, LLC | Maryland | |
| NBP 320, LLC | Maryland |
| Name | Jurisdiction of Incorporation/Formation |
Foreign Qualification |
| NBP 322, LLC | Maryland | |
| NBP 324, LLC | Maryland | |
| NBP 410, LLC | Maryland | |
| NBP 420, LLC | Maryland | |
| NBP 430, LLC | Maryland | |
| NBP 520, LLC | Maryland | |
| NBP 540, LLC | Maryland | |
| NBP 550, LLC | Maryland | |
| NBP 560, LLC (formed 1/26/2021) | Maryland | |
| One Sellner Road, LLC | Maryland | |
| Park Circle Equities, LLC | Maryland | |
| Parkstone Tech Park, LLC (fka COPT Parkstone LLC) | Virginia | |
| Patriot Ridge I, LLC | Virginia | |
| Patriot Ridge II, LLC | Virginia | |
| Patriot Ridge Commons, LLC | Virginia | |
| Patriot Ridge Holdings, LLC | Virginia | |
| Patriot Ridge 7770, LLC | Virginia | |
| Pecan Court L.L.C. | Maryland | |
| Powerloft Holdings, LLC | Delaware | |
| Profit Interest Holding LLC | Delaware | |
| Red Cedar Building, LLC | Maryland | |
| Redstone Gateway 100, LLC | Delaware | AL |
| Redstone Gateway 300, LLC | Delaware | |
| Redstone Gateway 1000, LLC | Delaware | AL |
| Redstone Gateway 1100, LLC | Delaware | AL |
| Redstone Gateway 1200, LLC | Delaware | AL |
| Redstone Gateway 1700, LLC | Delaware | |
| Redstone Gateway 2100, LLC | Delaware | AL |
| Redstone Gateway 2400, LLC | Delaware | AL |
| Redstone Gateway 4000, LLC | Delaware | AL |
| Redstone Gateway 4100, LLC | Delaware | |
| Redstone Gateway 6000, LLC | Delaware | AL |
| Redstone Gateway 6200, LLC | Delaware | AL |
| Redstone Gateway 6500, LLC | Delaware | AL |
| Name | Jurisdiction of Incorporation/Formation |
Foreign Qualification |
| Redstone Gateway 7000, LLC | Delaware | AL |
| Redstone Gateway 7100, LLC | Delaware | AL |
| Redstone Gateway 7200, LLC | Delaware | AL |
| Redstone Gateway 8000, LLC | Delaware | AL |
| Redstone Gateway 8100, LLC | Delaware | |
| Redstone Gateway 8200, LLC (formed 2/5/2021) | Delaware | AL |
| Redstone Gateway 8300, LLC (formed 2/5/2021) | Delaware | AL |
| Redstone Gateway 8800, LLC | Delaware | AL |
| RG 2100 Restaurant, LLC | Maryland | AL |
| RIVA Trustee, LLC | Maryland | |
| Riverwood Business Center Equity Affiliates, LLC | Maryland | |
| South Point Phase II, LLC | Virginia | |
| Stevens Investors, LLC | Delaware | |
| Stevens School Holdings, LLC | Delaware | DC |
| Third Exploration L.L.C. | Maryland | |
| TRC Pinnacle Towers, L.L.C. | Virginia | |
| Waterside I, LLC | Virginia | |
| 30 Charm City, LLC | Maryland | |
| 30 LS Borrower, LLC | Maryland | |
| 100 Charm City, LLC | Maryland | |
| 100 LS Borrower, LLC | Maryland | |
| 250 Charm City, LLC | Maryland | |
| 1460 Dorsey Road, LLC | Maryland | |
| 1550 Nursery, LLC | Maryland | |
| 2100 L Holdings, LLC | Delaware | |
| 2100 L Subsidiary LLC | Delaware | DC |
| 6711 Gateway, LLC | Maryland | |
| 6721 Gateway, LLC | Maryland | |
| 6731 Gateway, LLC | Maryland | |
| 6741 Gateway, LLC | Maryland | |
| 7000 Honeys, LLC | Maryland | |
| 7005 Columbia Gateway, LLC | Maryland | |
| 7015 Albert Einstein Drive, L.L.C. | Maryland | |
| 7200 Riverwood, LLC | Maryland | |
| 7205 Riverwood, LLC | Maryland |
| Name | Jurisdiction of Incorporation/Formation |
Foreign Qualification |
| 7318 Parkway Drive Enterprises, LLC | Maryland | |
| 7740 Milestone, LLC | Maryland | |
| 7760 Milestone Parkway, LLC | Maryland | |
| 7780 Milestone Parkway, LLC | Maryland | |
| 7874 Milestone Parkway, LLC | Maryland | |
| 7876 Milestone Parkway, LLC | Maryland | |
| 7878 Milestone Parkway, LLC | Maryland | |
| 7880 Milestone Parkway, LLC | Maryland | |
| 45310 Abell House, LLC | Maryland |
SCHEDULE II
SIGNIFICANT SUBSIDIARIES - MORGAN, LEWIS & BOCKIUS LLP OPINION
Corporate Office Management, Inc.
Corporate Office Properties, L.P.
COPT Property Management Services, LLC
SCHEDULE III
SIGNIFICANT SUBSIDIARIES – SAUL EWING ARNSTEIN & LEHR LLP OPINION
Corporate Office Management, Inc.
Corporate Gatespring, LLC
NBP One, LLC
NBP 131 LLC
NBP 135, LLC
7200 Riverwood, LLC
SCHEDULE IV
MATERIAL DOCUMENTS
Articles Supplementary of the Company, dated September 22, 2014 (filed with the Company’s Current Report on Form 8-K on September 24, 2014).
Amended and Restated Declaration of Trust of the Company, as amended through May 15, 2018 (filed with the Company’s Quarterly Report on Form 10-Q on July 31, 2018).
Amended and Restated Bylaws of the Company, as amended through May 11, 2017 (filed with the Company’s Quarterly Report on Form 10-Q on July 31, 2017).
Third Amended and Restated Limited Partnership Agreement of the Operating Partnership, dated as of December 5, 2018 (filed with the Company’s Current Report on Form 8-K on December 6, 2018).
First Amendment to Third Amended and Restated Limited Partnership Agreement of the Operating Partnership, dated July 31, 2019 (filed with the Company’s Quarterly Report on Form 10-Q on August 5, 2019).
Amended and Restated Registration Rights Agreement, dated March 16, 1998, for the benefit of certain shareholders of the Company (filed with the Company’s Quarterly Report on Form 10-Q on August 12, 1998).
Registration Rights Agreement, dated May 6, 2013, by and among the Operating Partnership, the Company, J.P. Morgan Securities LLC and Wells Fargo Securities, LLC (filed with the Company’s Current Report on Form 8-K on May 7, 2013).
Indenture, dated as of September 16, 2013, by and among the Operating Partnership, as issuer, the Company, as guarantor, and U.S. Bank National Association, as trustee (filed with the Company’s Current Report on Form 8-K on September 19, 2013).
Third Supplemental Indenture, dated as of June 29, 2015, by among the Operating Partnership, as issuer, the Company, as guarantor, and U.S. Bank National Association, as trustee (filed with the Company’s Current Report on Form 8-K on July 1, 2015).
Indenture, dated as of April 8, 2019, by and among the Operating Partnership, as issuer, the Company, as guarantor, and U.S. Bank National Association, as trustee (filed with the Company’s Registration Statement on Form S-3, dated April 8, 2019 (Registration No. 333-230764)).
First Supplemental Indenture, dated as of September 17, 2020, by and among the Operating Partnership, as issuer, the Company, as guarantor, and U.S. Bank National Association, as trustee (filed with the Company’s Current Report on Form 8-K on September 17, 2020).
Second Supplemental Indenture, dated as of March 11, 2021, by and among the Operating Partnership, as issuer, the Company, as guarantor, and U.S. Bank National Association, as trustee (filed with the Company’s Current Report on Form 8-K on March 11, 2021).
Third Supplemental Indenture, dated as of August 11, 2021, by and among the Operating Partnership, as issuer, the Company, as guarantor, and U.S. Bank National Association, as trustee (filed with the Company’s Current Report on Form 8-K on August 11, 2021).
Fourth Supplemental Indenture, dated as of November 17, 2021, by and among the Operating Partnership, as issuer, the Company, as guarantor, and U.S. Bank National Association, as trustee (filed with the Company’s Current Report on Form 8-K on November 17, 2021).
Amended and Restated Term Loan Agreement, dated as of March 6, 2020, by and among the Operating Partnership; the Company; Capital One, National Association, PNC Bank, National Association, Regions Bank, U.S. Bank National Association and TD Bank, N.A. (filed with the Company’s Quarterly Report on Form 10-Q on May 8, 2020).
Credit Agreement, dated as of October 10, 2018, by and among the Operating Partnership; the Company; KeyBank National Association; KeyBanc Capital Markets Inc.; JPMorgan Chase Bank, N.A.; Citibank, N.A.; Wells Fargo Bank, National Association; Barclays Bank PLC; Merrill Lynch, Pierce, Fenner & Smith Incorporated; Bank of America, N.A.; U.S. Bank National Association; Capital One National Association; Manufacturers and Traders Trust Company; PNC Bank, National Association; Regions Bank; and TD Bank, N.A. (filed with the Company’s Current Report on Form 8-K on October 16, 2018).