Exhibit
1.1
Chicago
Atlantic Real Estate Finance, Inc.
UP
TO $75,000,000 OF COMMON STOCK
(par
value $0.01 per share)
At-the-market
SALES AGREEMENT
June 20, 2023
[●]
[●]
[●]
Ladies
and Gentlemen:
Chicago Atlantic Real Estate
Finance, Inc., a Maryland corporation (the “Company”), and Chicago Atlantic REIT Manager, LLC, a Delaware limited
liability company (the “Manager”), confirm their respective agreements (this “Agreement”)
with [●] (in its capacity as sales agent for the Company “Agent” and, together with the Company, the “Parties”),
as follows:
1.
Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject
to the conditions set forth herein, it may issue and sell to or through Agent, as sales agent and/or principal, up to that number of
shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”), having an aggregate
offering price of $75,000,000 (the “Shares”); provided, however, that in no event shall the Company
issue or sell to or through Agent such number of Shares that would (a) cause the Company not to satisfy the eligibility requirements
for use of Form S-3 (including, if and so long as applicable, General Instruction I.B.6. of Form S-3), (b) exceed the number or amount
of shares of Common Stock then available for offer and sale under the currently effective Registration Statement (as defined below) pursuant
to which the offering hereunder and under any Terms Agreement is being made or (c) exceed the number of authorized but unissued shares
of the Company’s Common Stock (the lesser of (a), (b) and (c), the “Maximum Amount”). Notwithstanding
anything to the contrary contained herein, the Parties acknowledge and agree that compliance with the limitations set forth in this Section
1 on the Maximum Amount of Shares that may be issued and sold under this Agreement and any Terms Agreement (as defined below) shall
be the sole responsibility of the Company, and that Agent shall have no obligation in connection with such compliance. The Company agrees
that whenever it determines to sell Shares directly to Agent, as principal, it will enter into a separate agreement (each, a “Terms
Agreement”) in a form to be agreed upon by the Company and Agent relating to such sale in accordance with Section 2(b)
of this Agreement (each such transaction being referred to as a “Principal Transaction”). Each transaction
pursuant to this Agreement in which the Company determines to sell Shares through Agent, as sales agent, is hereinafter referred to as
an “Agency Transaction”. The issuance and sale of Shares to or through Agent will be effected pursuant to the
Registration Statement (as defined below) filed by the Company and which was declared effective under the Securities Act (as defined
below) by the U.S. Securities and Exchange Commission (the “Commission”).
The
Company has prepared and filed, in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder (collectively, the “Securities Act”), with the Commission, not earlier than three years
prior to the date hereof, a shelf registration statement on Form S-3 (File No. 333-268920), including a base prospectus, with respect
to offerings of certain securities of the Company, including the Shares, and which incorporates by reference documents that the Company
has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement
to the base prospectus included as part of such registration statement at the time it became effective specifically relating to the offering
of the Shares pursuant to this Agreement (the “Prospectus Supplement”). The Company will furnish to Agent,
for use by Agent, copies of the base prospectus included as part of such registration statement at the time it became effective, as supplemented
by the Prospectus Supplement. Except where the context otherwise requires, such registration statement, as declared effective by the
Commission, including the information, if any, deemed pursuant to Rule 430B or 430C under the Securities Act, as applicable, to be part
of the registration statement at the time of its effectiveness and all documents filed as part thereof or incorporated by reference therein,
and including any information contained in the Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule
424(b) under the Securities Act, collectively, are herein called the “Registration Statement,” and the base
prospectus included in the registration statement at the time it became effective, including all documents incorporated therein by reference
to the extent such information has not been superseded or modified in accordance with Rule 412 under the Securities Act (as qualified
by Rule 430B(g) of the Securities Act), as it may be supplemented by the Prospectus Supplement, in the form filed by the Company with
the Commission pursuant to Rule 424(b) under the Securities Act, together with any “issuer free writing prospectus”, as defined
in Rule 433 under the Securities Act (“Rule 433”), relating to the Shares that (i) is required to be filed
with the Commission by the Company or (ii) is exempt from filing pursuant to Rule 433(d)(5)(i), in each case, in the form filed or required
to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule
433(g), is herein called the “Prospectus.” If the Company has filed an abbreviated registration statement
to register additional securities of the Company pursuant to Rule 462(b) under the Securities Act, then any reference to the Registration
Statement in this Agreement shall also be deemed to include such abbreviated registration statement filed by the Company pursuant to
Rule 462(b) under the Securities Act. Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement
thereto shall be deemed to refer to and include the documents incorporated by reference therein, and any reference herein to the terms
“amend,” “amendment” or “supplement” with respect to the Registration Statement or the Prospectus
shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated
by reference therein (such documents incorporated or deemed to be incorporated by reference are herein called the “Incorporated
Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment
or supplement thereto shall be deemed to include any copy filed with the Commission pursuant to its Electronic Data Gathering Analysis
and Retrieval system, or if applicable, the Interactive Data Electronic Applications system when used by the Commission (collectively,
“EDGAR”).
The Company and the Manager
have also entered into separate sales agreements (collectively, the “Separate Sales Agreements”), dated as of
even date herewith, with [●] and [●] (and, as applicable, their respective affiliates) (each, in its capacity as agent and/or
principal thereunder, a “Separate Agent”), for the issuance and sale from time to time through the applicable
Separate Agents on the terms set forth in the applicable Separate Sales Agreements. The Company and the Manager may also in the future
enter into additional at-the-market 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. The aggregate offering price of the Shares that may be sold pursuant to this Agreement and the Alternative Sales Agreements
shall not exceed the Maximum Amount.
2.
Placements; Principal Transactions.
(a)
Each time that the Company wishes to issue and sell Shares hereunder in an Agency Transaction (each, a “Placement”
and Shares sold thereunder, “Placement Shares”), it will notify Agent by email notice (or other method mutually agreed
to in writing by the Parties) of the amount of Shares requested to be sold or the gross proceeds to be raised in a given time period,
the time period during which sales are requested to be made, any limitation on the amount of Shares that may be sold in any single day,
any minimum price below which sales may not be made or any minimum price requested for sales in a given time period and any other instructions
relevant to such requested sales (a “Placement Notice”), the form of which is attached hereto as Schedule
1. A Placement Notice shall originate from any of the individual representatives of the Company set forth on Schedule 3,
and shall be addressed to each of the individual representatives of Agent set forth on Schedule 3, as such Schedule
3 may be amended from time to time. Provided the Company is otherwise in compliance with the terms of this Agreement, the Placement
Notice shall be effective unless and until (i) Agent, in accordance with the notice requirements set forth in Section 4, declines
to accept the terms contained therein for any reason, in its sole discretion (which shall not be deemed a breach of Agent’s agreement
herein), (ii) the entire amount of the Shares thereunder have been sold or the aggregate Shares sold under this Agreement and all Terms
Agreements equals the Maximum Amount, whichever occurs first, (iii) the Company, in accordance with the notice requirements set forth
in Section 4, suspends or terminates the Placement Notice or sales thereunder, (iv) Agent, in accordance with the notice requirements
set forth in Section 4, suspends sales under the Placement Notice, (v) the Company issues a subsequent Placement Notice with parameters
superseding those on the earlier dated Placement Notice or (vi) this Agreement has been terminated under the provisions of Section
14. The amount of any commission to be paid by the Company to Agent in connection with the sale of the Shares effected through Agent,
as agent, in an Agency Transaction shall be calculated in accordance with the terms set forth in Schedule 2. It is expressly
acknowledged and agreed that neither the Company nor Agent will have any obligation whatsoever with respect to a Placement or any Shares
unless and until the Company delivers a Placement Notice to Agent and Agent does not decline such Placement Notice pursuant to the terms
set forth above, and then only upon the terms specified therein and herein. In the event of a conflict between the terms of this Agreement
and the terms of a Placement Notice, the terms of the Placement Notice will control.
(b)
If the Company wishes to issue and sell Shares hereunder in a Principal Transaction, it will notify Agent by email notice (or other method
mutually agreed to in writing by the Parties) of the proposed terms of the Principal Transaction. If Agent, acting as principal, wishes
to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company,
wishes to accept amended terms, the Company and Agent shall enter into a Terms Agreement setting forth the terms of such Principal Transaction.
Neither the Company nor Agent shall have any obligation to enter into a Principal Transaction. The terms set forth in a Terms Agreement
shall not be binding on the Company or Agent, unless and until the Company and Agent have each executed such Terms Agreement accepting
all of the terms of such Terms Agreement. Any such Terms Agreement shall specify the number or amount of Shares to be sold by the Company
to and purchased by Agent pursuant thereto, the per share purchase price to be paid to the Company for such Shares (specifying and giving
effect to all market price discounts applicable to such Principal Transaction), all other compensation and/or other fees or expenses
payable by the Company to or for the benefit of Agent in connection with such Principal Transaction, the Net Proceeds (as defined below)
payable to the Company, the time, date and place of delivery of and payment for such Shares (to the extent the settlement terms for sales
of such Shares are intended to differ from those set forth in Section 5 hereof), and the other terms upon which such sale is to
occur. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by Agent. Each of the Parties
acknowledges and agrees that such Principal Transaction shall be based on compensation that is mutually agreeable to both the Company
and Agent. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of the Terms
Agreement will control. The commitment of Agent to purchase the Shares as principal pursuant to any Terms Agreement shall be deemed to
have been made on the basis of the representations, warranties and agreements of the Company contained in this Agreement and shall be
subject to the terms and conditions herein set forth. Each of the Parties acknowledges and agrees that, notwithstanding anything to the
contrary contained in this Agreement or any Terms Agreement, Agent may engage in sales and other transactions in respect of a number
of shares of Common Stock equal to the number of Shares deliverable to Agent pursuant to a Terms Agreement, whether or not Agent has
taken possession of such Shares at the time of such sales or other transactions, and nothing contained in this Agreement or any Terms
Agreement shall limit or be deemed to limit Agent’s ability to engage in such sales or other transactions.
(c)
The Company agrees that any offer to sell, any solicitation of an offer to buy or any sales of Shares shall only be effected by or through
only one of the Agent or the respective Separate Agent on any single given day, but in no event more than one, and the Company shall
in no event request that the Agent and one or more of the Separate Agents sell Shares on the same day; provided, however, that (x) the
foregoing limitation shall not apply to (A) exercise of any option, warrant, right or any conversion privilege set forth in the instrument
governing such security or (B) 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, (y) such limitation shall not apply on any day during which no sales
are made pursuant to this Agreement and (z) such limitation shall not apply if, prior to any such request to sell Shares, all Shares
the Company has previously requested the Agent or any Separate Agents to sell have been sold.
3.
Sale of Shares by Agent. On the basis of the representations and warranties herein contained and subject to the terms and conditions
herein set forth, upon the Company’s issuance of a Placement Notice in an Agency Transaction, and unless the sale of the Shares
described therein has been declined, suspended or otherwise terminated in accordance with the terms of this Agreement, Agent, as sales
agent for the Company, will use its commercially reasonable efforts, consistent with its normal trading and sales practices and applicable
state and federal laws, rules and regulations and the rules of The NASDAQ Global Market (the “Exchange”), for
the period specified in the Placement Notice to sell such Shares up to the amount specified by the Company in, and otherwise in accordance
with the terms of, such Placement Notice. If acting as sales agent in an Agency Transaction, Agent will provide written confirmation
to the Company no later than the opening of the Trading Day (as defined below) next following the Trading Day on which it has made sales
of Shares hereunder, setting forth the number of Shares sold on such day, the compensation payable by the Company to Agent with respect
to such sales pursuant to Section 2 (it being hereby acknowledged and agreed that such compensation shall not apply when Agent
acts as principal, in which case such compensation, discounts or other fees shall be set forth in the applicable Terms Agreement), and
the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by Agent (as set forth in Section
5(a)) from the gross proceeds for the Shares that it receives from such sales. Agent may sell Shares, as sales agent in an Agency
Transaction, by any method permitted by law deemed to be an “at-the-market” offering as defined in Rule 415 under the Securities
Act, including, without limitation, sales made directly on the Exchange, on any other existing trading market for the Common Stock or
to or through a market maker or through an electronic communications network. After consultation with the Company and subject to the
terms of a Placement Notice, Agent may also sell Shares, as sales agent in an Agency Transaction, in privately negotiated transactions,
including, without limitation, in block trades. During the term of this Agreement and notwithstanding anything to the contrary herein,
Agent agrees that in no event will it or any of its affiliates engage in any market making, bidding, stabilization or other trading activity
with regard to the Common Stock if such activity would be prohibited under Regulation M or other anti-manipulation rules under the Exchange
Act. Each of the Company and the Manager acknowledge and agree that (i) there can be no assurance that Agent will be successful in selling
Shares in any Agency Transaction hereunder, (ii) Agent will incur no liability or obligation to the Company, the Manager or any other
person or entity if it does not sell Shares in any Agency Transaction for any reason other than a failure by Agent to use its commercially
reasonable efforts consistent with its normal trading and sales practices to sell such Shares as required under this Section 3,
and (iii) Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as may otherwise
be specifically agreed by each of Agent and the Company pursuant to a Terms Agreement, and then only to the extent permitted by applicable
law and the rules and regulations of the Exchange. For the purposes hereof, “Trading Day” means any day on
which Common Stock is purchased and sold on the principal market on which the Common Stock is listed or quoted.
4.
Suspension of Sales.
(a)
The Company or Agent may, upon notice to the other party in writing (including by email correspondence to each of the individual representatives
of the other party set forth on Schedule 3, if receipt of such correspondence is actually acknowledged by any of the individuals
to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable facsimile transmission or
email correspondence to each of the individual representatives of the other party set forth on Schedule 3) (a “Suspension
Notice”), suspend this offering and any sale of Shares in an Agency Transaction for a period of time (a “Suspension
Period”); provided, however, that such suspension shall not affect or impair either party’s obligations with
respect to any Shares sold hereunder prior to the receipt of such notice. Each of the Parties agrees that no such notice under this Section
4 shall be effective against the other unless it is made to one of the individuals named on Schedule 3 hereto, as such
Schedule may be amended from time to time. During a Suspension Period, the Company shall not issue any Placement Notices and Agent shall
not sell any Shares hereunder. The party that issued a Suspension Notice shall notify the other party in writing of the Trading Day on
which the Suspension Period shall expire not later than twenty-four (24) hours prior to such Trading Day.
(b)
Notwithstanding any other provision of this Agreement or any Terms Agreement, the Company shall not offer or sell, or request the offer
or sale of, any Shares and, by notice to Agent given by telephone (confirmed promptly by verifiable facsimile transmission or email),
shall cancel any instructions for the offer or sale of any Shares, and Agent shall not be obligated to offer or sell any Shares, (i)
during any period in which the Company is, or may be deemed to be, in possession of material non-public information or (ii) except as
expressly provided in Section 4(c) below, at any time from and including the date (each, an “Announcement Date”)
on which the Company shall issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results
of operations (each, an “Earnings Announcement”) through and including the time that is 24 hours after the
time that the Company files (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.
(c)
If the Company wishes to offer, sell or deliver Shares at any time during the period from and including an Announcement Date through
and including the time that is 24 hours after the corresponding Filing Time, the Company shall, as conditions to the giving or continuation
of any Placement Notice with respect to an Agency Transaction or the execution by Agent of any Terms Agreement with respect to a Principal
Transaction, (i) prepare and deliver to Agent (with a copy to counsel to Agent) a 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 or other projections,
similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance
reasonably satisfactory to Agent and its counsel, (ii) provide Agent with the officer’s certificate called for by Section 8(m),
dated the date of the Placement Notice for such Agency Transaction or the Settlement Date (as defined below) of such Principal Transaction,
as applicable, which certificate shall be deemed to remain in effect during the applicable period unless withdrawn by the Company, and
the opinion of Company Counsel (as defined below), opinion of Company Tax Counsel (as defined below), opinion of Company Maryland Counsel
(as defined below) and Comfort Letter (as defined below) and certificate of the Principal Financial Officer of the Company called for
by Sections 8(n), 8(o), and 8(p) respectively, dated the date of the Placement Notice for such Agency Transaction
or the Settlement Date of such Principal Transaction, as applicable, (iii) afford Agent the opportunity to conduct a due diligence review
in accordance with Section 8(k) hereof and (iv) file such Earnings 8-K with the Commission (so that it is deemed “filed”
for purposes of Section 18 of the Exchange Act). The provisions of clause (ii) of Section 4(b) shall not be applicable for the
period from and after the time at which the conditions set forth in the immediately preceding sentence 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, as the case
may be. For purposes of clarity, the Parties agree that (A) the delivery of any officers’ certificate, opinion of Company Counsel
and Comfort Letter pursuant to this Section 4(c) shall not relieve the Company from any of its obligations under this Agreement
with respect to any quarterly report on Form 10-Q, annual report on Form 10-K, or report on Form 8-K, as the case may be, including,
without limitation, the obligation to deliver the officers’ certificate, opinion of Company Counsel, opinion of Company Tax Counsel,
opinion of Company Maryland counsel, Comfort Letter and certificate of the Principal Financial Officer called for by Sections 8(m),
8(n), 8(o) and 8(p), respectively, which Sections shall have independent application, and (B) this Section 4(c)
shall in no way affect or limit the operation of the provisions of clause (i) of Section 4(b), which shall have independent
application.
5.
Settlement.
(a)
Settlement of Placement Shares. Unless otherwise specified in the applicable Placement Notice or Terms Agreement (as applicable),
settlement for sales of Placement Shares will occur on the second (2nd) Trading Day (or such earlier day as is industry practice for
regular-way trading) following the date on which such sales are made (each, a “Settlement Date”). The amount
of proceeds to be delivered to the Company on a Settlement Date against receipt of the Placement Shares sold (the “Net Proceeds”)
will be equal to the aggregate sales price received by Agent for the Placement Shares, after deduction for (i) Agent’s commission
for such sales payable by the Company pursuant to Section 2 hereof in an Agency Transaction, or Agent’s compensation, discounts
or other fees pursuant to the terms of the applicable Terms Agreement in a Principal Transaction, as applicable, (ii) any other amounts
due and payable by the Company to Agent hereunder and under any Terms Agreement, as applicable, pursuant to Section 8(g) (Expenses)
hereof and (iii) any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales.
(b)
Delivery of Placement Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent to, issue
and electronically transfer the Placement Shares being sold by crediting Agent’s or its designee’s (provided Agent shall
have given the Company written notice of such designee prior to the Settlement Date) account at The Depository Trust Company through
its Deposit and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon by the Parties, which
Placement Shares in all cases shall be freely tradeable, transferable, registered shares in good deliverable form. On each Settlement
Date, Agent will deliver the related Net Proceeds in same day funds to an account designated by the Company prior to the Settlement Date.
The Company agrees that if the Company, or its transfer agent, defaults in its obligation to deliver Placement Shares on a Settlement
Date pursuant to the terms of any Agency Transaction or Terms Agreement, in addition to and in no way limiting the rights and obligations
set forth in Section 12(a) (Indemnification by the Company), the Company will (i) hold Agent, its directors, officers, members,
partners, employees and agents of Agent and each person, if any, who (A) controls Agent within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act or (B) is controlled by or is under common control with Agent (other than the Company and its Subsidiaries
(as defined below)) (an “Agent Affiliate”), harmless against any loss, claim, damage, or expense (including
reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company or its transfer agent
(if applicable) and (ii) pay to Agent any commission or other compensation (including the value of any market price discounts in any
applicable Principal Transaction) to which it would otherwise have been entitled absent such default.
(c)
Limitations on Offering Size. With respect to each Trading Day during which sales are requested to be made pursuant to a Placement
Notice in an Agency Transaction, under no circumstances shall the Company cause or request the offer or sale of any Shares pursuant to
this Agreement on, or over the course of, such Trading Day in excess of 15% of the average daily trading volume (as such term is used
in Rule 10b-18 of the Exchange Act) in the Common Stock on the Exchange for the thirty (30) Trading Days immediately preceding the date
of delivery of the Placement Notice, or as otherwise agreed between the Company and Agent and documented in the applicable Placement
Notice. Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares pursuant to this Agreement
or any Terms Agreement (i) if, after giving effect to the sale of such Placement Shares, the aggregate number of Placement Shares sold
pursuant to this Agreement and all Terms Agreements would exceed the lesser of (A) the Maximum Amount and (B) the number or amount authorized
from time to time to be issued and sold under this Agreement by the Company’s Board of Directors (the “Board”),
a duly authorized committee thereof or a duly authorized executive committee, and notified to Agent in writing, or (ii) at a price lower
than the minimum price therefor authorized from time to time by the Board, a duly authorized committee thereof or a duly authorized executive
committee, and notified to Agent in writing. Under no circumstances shall the Company cause or request the offer or sale of any Shares
in any Agency Transaction pursuant to this Agreement or cause the offer or sale to Agent of any Shares in any Principal Transaction pursuant
to this Agreement and any Terms Agreement, in each case, at a price lower than the minimum price therefor authorized from time to time
by the Board, a duly authorized committee thereof or a duly authorized executive committee, and notified to Agent in writing. Under no
circumstances shall the aggregate number of Placement Shares sold pursuant to this Agreement and all Terms Agreements exceed the Maximum
Amount. Notwithstanding anything to the contrary contained herein, the Parties acknowledge and agree that compliance with the limitations
set forth in this Section 5(c) on the number or amount of Placement Shares that may be issued and sold under this Agreement and
any Terms Agreement shall be the sole responsibility of the Company, and that Agent shall have no obligation in connection with such
compliance.
6.
Representations and Warranties of the Company. The Company represents and warrants to, and agrees with, Agent that as of (i)
the date of this Agreement, (ii) each Representation Date (as defined in Section 8(m)) on which a certificate is required to be
delivered pursuant to Section 8(m), (iii) the date on which any Placement Notice is delivered by the Company hereunder, (iv) the
date on which any Terms Agreement is executed by the Company and Agent and (v) each time of sale of Shares pursuant to this Agreement
or any Terms Agreement (each such time of sale, an “Applicable Time”), as the case may be:
(a)
Registration Statement and Prospectus. All of the conditions to the use of Form S-3 in connection with the offering and sale of
the Shares as contemplated hereby have been satisfied. The Registration Statement meets, and the offering and sale of Shares as contemplated
hereby comply with, the requirements of Rule 415(a)(1)(x) under the Securities Act. The Registration Statement was declared effective
under the Securities Act by the Commission on January 19, 2023, and any post-effective amendment thereto has also been declared effective
or became effective upon filing. The Company has not received from the Commission any notice pursuant to Rule 401(g)(1) under the Securities
Act objecting to the use of the shelf registration statement form. No stop order of the Commission preventing or suspending the use of
the base prospectus, the Prospectus Supplement or the Prospectus, or the effectiveness of the Registration Statement, has been issued,
and no proceedings for such purpose have been instituted or are pending or, to the Company’s knowledge, are contemplated by the
Commission. At the time of the initial filing of the Registration Statement, the Company paid the required Commission filing fees relating
to the Shares in accordance with Rules 456(a) and 457(o) under the Securities Act. Copies of the Registration Statement, the Prospectus,
and any such amendments or supplements and all documents incorporated by reference therein that were filed with the Commission on or
prior to the date of this Agreement have been delivered, or are available through EDGAR, to Agent and its counsel.
(b)
No Material Misstatement or Omission. At the respective times the Registration Statement and each post-effective amendment thereto
became effective, at each deemed effective date with respect to Agent pursuant to Rule 430B(f)(2) under the Securities Act, and at each
Settlement Date, as the case may be, the Registration Statement complied, complies and will comply in all material respects with the
requirements of the Securities Act (including Rule 415(a)(1)(x) under the Securities Act), and did not and will not 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
not misleading. The Prospectus, when so filed with the Commission under Rule 424(b) under the Securities Act, complied, complies and
will comply in all material respects with the requirements of the Securities Act, and each Prospectus furnished to Agent for use in connection
with the offering of the Shares was identical to the electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T. Neither the Prospectus nor any amendments or supplements thereto, at the time
the Prospectus or any such amendment or supplement was filed, as of the date hereof, at each Representation Date, and at each Applicable
Time, as the case may be, included, includes or will include an untrue statement of a material fact or omitted or will omit to state
a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading. The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration
Statement, the Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with written information furnished
to the Company by Agent expressly for use therein.
(c)
Incorporated Documents. Each Incorporated Document heretofore filed, when it was filed (or, if any amendment with respect to any
such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act,
and any further Incorporated Documents so filed and incorporated after the date of this Agreement will, when they are filed, conform
in all material respects with the requirements of the Exchange Act; no such Incorporated Document when it was filed (or, if an amendment
with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and no such Incorporated Document, when it is filed, will contain an untrue statement of
a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading.
(d)
Free Writing Prospectuses. The Company has not distributed and will not distribute any “prospectus” (within the meaning
of the Securities Act) or offering material in connection with the offering or sale of the Shares other than the then most recent Prospectus
Supplement and any “issuer free writing prospectus” (as defined in Rule 433) reviewed and consented to by Agent, in each
case accompanied by the then most recent base prospectus. Each issuer free writing prospectus (as defined in Rule 433), as of its issue
date and as of each Applicable Time, 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 Incorporated Document deemed to be a part
thereof that has not been superseded or modified. The foregoing sentence does not apply to any statements in or omissions from any issuer
free writing prospectus made in reliance upon and in conformity with written information furnished to the Company by Agent expressly
for use in such issuer free writing prospectus. The Company is not disqualified, by reason of subsection (f) or (g) of Rule 164 under
the Securities Act, from using, in connection with the offer and sale of the Shares, issuer free writing prospectuses pursuant to Rules
164 and 433 under the Securities Act. The Company was not and is not an “ineligible issuer” as defined in Rule 405 under
the Securities Act at the times specified in Rules 164 and 433 under the Securities Act in connection with the offering of the Shares.
Any issuer free writing prospectus that the Company is required to file pursuant to Rule 433 has been, or will be, timely filed with
the Commission in accordance with the requirements of Rule 433. Each issuer free writing prospectus that the Company has filed, or is
required to file, pursuant to Rule 433 or that was prepared by or on behalf of or used by the Company complies or will comply in all
material respects with the requirements of the Securities Act.
(e)
Capitalization. The Company has an authorized and outstanding capitalization as set forth in the Registration Statement and the
Prospectus as of the dates referred to therein (subject, in each case, to the issuance of shares of Common Stock under this Agreement
or any Terms Agreement, the issuance of shares of Common Stock upon exercise of stock options and warrants disclosed as outstanding in
the Registration Statement and the Prospectus, the grant of options under existing stock option plans described in the Registration Statement
and the Prospectus). All of the issued and outstanding shares of capital stock, including the Common Stock, of the Company have been
duly authorized and validly issued and are fully paid and non-assessable, have been issued in compliance, in all material respects, with
all federal and state securities laws and were not issued in violation of any preemptive right or similar right. Except as disclosed
in the Registration Statement and the Prospectus, there are no outstanding (i) securities or obligations of the Company or any of its
Subsidiaries (as defined below) convertible into or exchangeable for any equity interests of the Company or any such Subsidiary, (ii)
warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such equity interests or any such
convertible or exchangeable securities or obligations or (iii) obligations of the Company or any such Subsidiary to issue any equity
interests, any such convertible or exchangeable securities or obligation, or any such warrants, rights or options. The Company’s
Common Stock has been registered pursuant to Section 12(b) of the Exchange Act and is authorized for trading on the Exchange, and the
Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock from the Exchange,
nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing.
The Company is in compliance with the current listing standards of the Exchange. The Company has filed a Notification of Listing of Additional
Shares with the Exchange with respect to the Shares.
(f)
Organization of the Company. The Company has been duly incorporated and is validly existing as a corporation in good standing
under the laws of the State of Maryland, with the corporate power and authority to acquire, own, lease and operate its properties, and
to lease the same to others, and to conduct its business as described in the Registration Statement and the Prospectus, to execute and
deliver this Agreement and each Terms Agreement and to issue and sell the Shares as contemplated herein and therein; and the Company
is in compliance in all respects with the laws, orders, rules, regulations and directives issued or administered by such jurisdictions,
except where the failure to be in compliance would not, individually or in the aggregate, have a Material Adverse Effect (as defined
below).
(g)
Management Agreement. The Management Agreement between the Company and the Manager (as amended, the “Management Agreement”)
has been duly authorized, executed and delivered by, and is a valid and legally binding agreement of, the Company, enforceable against
the Company in accordance with its terms, except to the extent that enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors’ rights generally and by general equitable principles.
(h)
Foreign Qualification of the Company. The Company is duly qualified to do business as a foreign corporation and is in good standing
in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except
where the failure to be so qualified and in good standing would not, individually or in the aggregate, either (i) have or reasonably
be expected to have a material adverse effect on the business, operations, properties, financial condition, results of operations or
prospects of the Company and its Subsidiaries, taken as a whole, or (ii) prevent, materially interfere with or materially delay consummation
of the transactions contemplated hereby or in any Terms Agreement (the effects described in the foregoing clauses (i) and (ii) being
herein referred to as a “Material Adverse Effect”).
(i)
Subsidiaries. Each subsidiary of the Company (each a “Subsidiary” and collectively, the “Subsidiaries”)
that is a significant subsidiary, as defined in Rule 1-02(w) of Regulation S-X of the Exchange Act (each a “Significant Subsidiary”
and collectively, the “Significant Subsidiaries”), has been duly incorporated or organized and is validly existing
as a corporation, limited liability company or limited partnership, as the case may be, in good standing under the laws of the jurisdiction
of its incorporation or organization, has corporate power and authority to own, lease and operate its properties and conduct its business
as described in the Prospectus and is duly qualified as a foreign corporation, limited liability company or limited partnership, as the
case may be, to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a Material
Adverse Effect. All of the issued and outstanding capital stock of, or other ownership interests in, each such Significant Subsidiary
has been duly authorized and validly issued, is fully paid and non-assessable and, except for directors’ qualifying shares, is
owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity; and attached hereto as Schedule 4 is an accurate and complete list of the Significant Subsidiaries. At
the filing date of the Company’s most recent Annual Report on Form 10-K, the Company did not have any Significant Subsidiary not
listed on Exhibit 21 to the Company’s most recent Annual Report on Form 10-K which was required to be so listed.
(j)
Validity of Shares. The Shares have been duly and validly authorized and, when issued and delivered against payment therefor as
provided herein, will be duly and validly issued, fully paid and non-assessable and free of preemptive rights and similar rights. No
further approval or authority of the stockholders or the Board are required for the issuance and sale of the Shares.
(k)
Description of Shares. The capital stock of the Company, including the Common Stock, conforms in all material respects to the
description thereof contained in the Registration Statement and the Prospectus, and the holders of the Shares will not be subject to
personal liability solely by reason of being such holders.
(l)
Authorization. This Agreement and each Terms Agreement, at the time such Terms Agreement is entered into, has been duly authorized,
executed and delivered by the Company and constitutes a valid and legally binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity. This
Agreement and each Terms Agreement, at the time such Terms Agreement is entered into, conforms in all material respects to the descriptions
thereof in the Registration Statement and the Prospectus.
(m)
Absence of Defaults and Conflicts. Neither the Company nor any Significant Subsidiary is (i) in breach or violation of its certificate
or articles of incorporation, charter, bylaws, limited liability company agreement, certificate or agreement of limited or general partnership,
memorandum and articles of association, or other similar organizational documents, as the case may be, of such entity, (ii) in breach
of or in default (or, with the giving of notice or lapse of time or both, would be in default) (“Default”)
under any indenture, mortgage, loan or credit agreement, deed of trust, note, contract, franchise, lease or other agreement, obligation,
condition, covenant or instrument to which the Company or any of its Significant Subsidiaries is a party or by which it or any of them
may be bound or to which any of the property or assets of the Company or any of its Significant Subsidiaries is subject (each, an “Existing
Instrument”), or (iii) in violation of any statute, law, rule, regulation, judgment, order or decree of any court, regulatory
body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its Significant
Subsidiaries or any of their properties, as applicable, except, with respect to clauses (ii) and (iii) only, for such breaches, violations
or Defaults that would not, individually or in the aggregate, have a Material Adverse Effect. The Company’s execution, delivery
and performance of this Agreement and each Terms Agreement and consummation of the transactions contemplated hereby or thereby or by
the Registration Statement and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale
of the Shares as described in the Prospectus under the caption “Use of Proceeds”) (i) have been duly authorized by all necessary
corporate action, and will not result in any breach or violation of the certificate or articles of incorporation, charter, bylaws, limited
liability company agreement, certificate or agreement of limited or general partnership, memorandum and articles of association, or other
similar organizational documents, as the case may be, of the Company or any of its Significant Subsidiaries, (ii) will not conflict with
or constitute a breach of, or Default or a Debt Repayment Triggering Event (as defined below) under, or result in the creation or imposition
of any lien, charge, claim or encumbrance upon any property or assets of the Company or any of its Significant Subsidiaries pursuant
to, or require the consent of any other party to, any Existing Instrument, and (iii) will not result in any violation of any statute,
law, rule, regulation, judgment, order or decree applicable to the Company or any of its Significant Subsidiaries of any court, regulatory
body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its Significant
Subsidiaries or any of its or their properties, as applicable, except, with respect to clauses (ii) and (iii) only, for such conflicts,
breaches, Defaults, Debt Repayment Triggering Events or violations that would not, individually or in the aggregate, have a Material
Adverse Effect. As used herein, a “Debt Repayment Triggering Event” means any event or condition which gives,
or with the giving of notice or lapse of time or both would give, the holder of any note, debenture or other evidence of indebtedness
(or any person acting on such holder’s behalf), issued by the Company, the right to require the repurchase, redemption or repayment
of all or a portion of such indebtedness by the Company or any of its Significant Subsidiaries.
(n)
Absence of Further Requirements. No consent, approval, license, permit, qualification, authorization or other order or decree
of, or registration or filing with, any court or other governmental or regulatory authority or agency is required for the Company’s
execution, delivery and performance of this Agreement and each Terms Agreement or consummation of the transactions contemplated hereby
or thereby or by the Registration Statement and the Prospectus (including the issuance and sale of the Shares hereunder or under any
Terms Agreement), except such as have been already obtained or made or as may be required under the Securities Act, applicable state
securities or Blue Sky laws, the rules of the Exchange, or the rules and regulations of the Financial Industry Regulatory Authority,
Inc. (“FINRA”).
(o)
No Preferential Rights; No Commissions. Except as set forth in the Registration Statement and the Prospectus, (i) no person (as
such term is defined in Rule 1-02 of Regulation S-X promulgated under the Securities Act) has the right, contractual or otherwise, to
cause the Company to issue or sell to such person any Common Stock or shares of any other capital stock or other securities of the Company,
(ii) no person (as such term is defined in Rule 1-02 of Regulation S-X promulgated under the Securities Act) has any preemptive rights,
resale rights, rights of first refusal, or any other rights (whether pursuant to a “poison pill” provision or otherwise)
to purchase any Common Stock or shares of any other capital stock or other securities of the Company, (iii) no person (as such term is
defined in Rule 1-02 of Regulation S-X promulgated under the Securities Act) has the right to act as an underwriter or as a financial
advisor to the Company in connection with the offer and sale of the Shares hereunder or under any Terms Agreement, whether as a result
of the filing or effectiveness of the Registration Statement or the sale of the Shares as contemplated thereby or otherwise, and (iv)
no person (as such term is defined in Rule 1-02 of Regulation S-X promulgated under the Securities Act) has the right, contractual or
otherwise, to cause the Company to register under the Securities Act any shares of Common Stock or shares of any other capital stock
or other securities of the Company, or to include any such shares or other securities in the Registration Statement or the offering contemplated
thereby. Neither the Company nor any of its Subsidiaries is a party to any contract, agreement or understanding with any person (other
than as contemplated by this Agreement or any Terms Agreement) that would give rise to a valid claim against the Company or any of its
Subsidiaries or Agent for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the
Shares by Agent under this Agreement or any Terms Agreement.
(p)
Intellectual Property. Except as set forth in the Registration Statement and the Prospectus, the Company or its Significant Subsidiaries
own or possess a valid right to use all material patents, trademarks, service marks, trade names, copyrights, patentable inventions,
trade secrets, know-how and other intellectual property (collectively, the “Intellectual Property”) used by
the Company or its Significant Subsidiaries in, and material to, the conduct of the Company’s or its Significant Subsidiaries’
business as now conducted or as proposed in the Registration Statement and the Prospectus to be conducted. Except as set forth in the
Registration Statement and the Prospectus, there is no material infringement by third parties of any of the Intellectual Property and
there are no legal or governmental actions, suits, proceedings or claims pending or, to the Company’s knowledge, threatened, against
the Company (i) challenging the Company’s rights in or to any Intellectual Property, (ii) challenging the validity or scope of
any Intellectual Property owned by the Company, or (iii) alleging that the operation of the Company’s business as now conducted
infringes or otherwise violates any patent, trademark, copyright, trade secret or other proprietary rights of a third party, where any
such action, suit, proceeding or claim would, individually or in the aggregate, have a Material Adverse Effect.
(q)
Possession of Licenses and Permits. Each of the Company and its Significant Subsidiaries has all necessary licenses, authorizations,
consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule,
and has obtained all necessary licenses, certificates, authorizations, orders, permits, consents and approvals from other persons, in
order to acquire and own, lease or sublease, lease to others and conduct its respective business as described in the Registration Statement
or Prospectus, except where the failure to have or obtain such licenses, permits, authorizations, consents and approvals and to make
such filings would not, individually or in the aggregate, have a Material Adverse Effect. All of such license, permit, authorization,
consent or approval are valid and in full force and effect, except where the invalidity of such license, permit, authorization, consent
or approval to be in full force and effect would not have a Material Adverse Effect. Neither the Company nor any of its Significant Subsidiaries
is in violation of, or in default under, or has received notice of any proceedings relating to revocation or modification of, any such
license, permit, authorization, consent or approval (or has any reason to believe that any such license, permit, authorization, consent
or approval will not be renewed in the ordinary course) or any federal, state, local or foreign law, regulation or rule or any decree,
order or judgment applicable to the Company or any of its Significant Subsidiaries, except where such violation, default, revocation
or modification would not, individually or in the aggregate, have a Material Adverse Effect.
(r)
Contracts and Agreements. There are no contracts, agreements, instruments or other documents that are required to be described
in the Registration Statement or the Prospectus or any Incorporated Documents or to be filed as exhibits thereto which have not been
so described in all material respects and filed as required by Item 601(b) of Regulation S-K under the Securities Act. The copies of
all contracts, agreements, instruments and other documents (including governmental licenses, authorizations, permits, consents and approvals
and all amendments or waivers relating to any of the foregoing) that have been furnished to Agent or its counsel are complete and genuine
and include all material collateral and supplemental agreements thereto. All contracts and agreements between the Company and third parties
expressly referenced in the Registration Statement or the Prospectus are legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their respective terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general
principles of equity.
(s)
Absence of Proceedings. Except as disclosed in the Registration Statement and Prospectus, there are no actions, suits, claims,
investigations or proceedings pending or, to the Company’s knowledge, threatened to which the Company or any of the Subsidiaries
is or would be a party, or of which any of the respective properties or assets of the Company and the Subsidiaries is or would be subject,
at law or in equity, before any court or arbitral body or by or before any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency, which are required to be disclosed in the Registration Statement or Prospectus, or which
would reasonably be expected to result in a judgment, decree or order having, individually or in the aggregate, a Material Adverse Effect,
or which could materially and adversely affect the respective properties or assets of the Company or any of its Subsidiaries. The aggregate
of all pending legal or governmental proceedings to which the Company or any Subsidiary is a party or of which any of their respective
properties or assets is the subject which are not described in the Registration Statement and Prospectus, including ordinary routine
litigation incidental to the business of the Company, would not, individually or in the aggregate, result in a Material Adverse Effect.
(t)
Independent Accountants. BDO USA, LLP, whose report on the consolidated financial statements of the Company and the Subsidiaries
is incorporated by reference in the Registration Statement and the Prospectus, is an independent registered public accounting firm with
respect to the Company as required by the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board (United
States) (the “PCAOB”). BDO USA, LLP has not been engaged by the Company to perform any “prohibited activities”
(as defined in Section 10A of the Exchange Act).
(u)
Financial Statements. The financial statements included or incorporated by reference in the Registration Statement and the Prospectus,
together with the related notes and schedules, present fairly the consolidated financial position of the Company and the Subsidiaries
as of the dates indicated and the consolidated results of operations and cash flows of the Company and the Subsidiaries for the periods
specified and have been prepared in compliance with the requirements of the Securities Act and Exchange Act and in conformity with United
States generally accepted accounting principles (“GAAP”) applied on a consistent basis during the periods involved.
The selected financial data and the summary financial information included in the Registration Statement and the Prospectus present fairly
the information shown therein and have been compiled on a basis consistent with that of the financial statements included or incorporated
by reference in the Registration Statement and the Prospectus, as of and at the dates indicated. Any pro forma financial statements
or data included or incorporated by reference in the Registration Statement and the Prospectus comply with the requirements of Regulation
S-X of the Securities Act, including, without limitation, Article 11 thereof, and the assumptions used in the preparation of such pro
forma financial statements and data are reasonable, the pro forma adjustments used therein are appropriate to give effect
to the circumstances referred to therein and the pro forma adjustments have been properly applied to the historical amounts in
the compilation of those statements and data. The other financial data set forth or incorporated by reference in the Registration Statement
and the Prospectus is accurately presented and prepared on a basis consistent with the financial statements and books and records of
the Company. The Company and the Subsidiaries do not have any material liabilities or obligations, direct or contingent (including any
off-balance sheet obligations or any “variable interest entities” as that term is used in Accounting Standards Codification
Paragraph 810-10-25-20), not disclosed in the Registration Statement and the Prospectus. All disclosures contained in the Registration
Statement or the Prospectus, including the Incorporated Documents, that contain “non-GAAP financial measures” (as such term
is defined by the rules and regulations of the Commission) comply, in all material respects, with Regulation G under the Exchange Act
and Item 10 of Regulation S-K under the Securities Act, to the extent applicable.
(v)
No Material Adverse Change in Business. Subsequent to the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been (i) any material adverse change in the business, operations, properties, financial condition,
results of operations or prospects of the Company and its Subsidiaries, taken as a whole, (ii) any transaction, other than in the ordinary
course, which is material to the Company and the Subsidiaries, taken as a whole, (iii) any obligation, direct or contingent (including
any off-balance sheet obligations), incurred by the Company or any Subsidiary, which is material to the Company and the Subsidiaries,
taken as a whole, (iv) any change in the authorized capital stock of the Company, or (v) except for regular quarterly dividends or special
dividends made in the ordinary course on the Common Stock, any dividend or distribution of any kind declared, paid or made on the capital
stock of the Company.
(w)
Investment Company Act. The Company is not, and after receipt of payment for the Shares and the application of the proceeds thereof
as contemplated under the caption “Use of Proceeds” in the Registration Statement and the Prospectus will not be, required
to be registered as an “investment company” under the Investment Company Act of 1940, as amended, and the rules and regulations
promulgated thereunder (collectively, the “Investment Company Act”).
(x)
Property. Except as set forth in the Registration Statement and the Prospectus, the Company and each of its Significant Subsidiaries
have good and marketable title to all of the properties and assets reflected as owned in the financial statements referred to in Section
6(t) above (or elsewhere in the Registration Statement and the Prospectus), in each case free and clear of any security interests,
mortgages, liens, encumbrances, equities, claims and other defects, except such as do not materially and adversely affect the value of
such property or assets and do not materially interfere with the use made or proposed to be made of such property by the Company or any
Significant Subsidiary. The material real property, improvements, equipment and personal property held under lease by the Company or
any of its Significant Subsidiaries are held under valid and enforceable leases, with such exceptions as are not material and do not
materially interfere with the use made or proposed to be made of such real property, improvements, equipment or personal property by
the Company or such Significant Subsidiary. The Company and each of its Subsidiaries have such consents, easements, rights-of-way or
licenses from any person (“rights-of-way”) as are necessary to enable the Company and each of its Subsidiaries
to conduct its business in the manner described in the Registration Statement and the Prospectus, and except for such rights-of-way the
lack of which would not have, individually or in the aggregate, a Material Adverse Effect.
(y)
Environmental Laws. Except as otherwise disclosed in the Registration Statement and Prospectus, neither the Company nor any of
its Subsidiaries has been in material violation of, in connection with the ownership, use, maintenance or operation of its properties
and assets, any applicable federal, state, municipal, local or foreign laws, rules, regulations, decisions, orders, policies, permits,
licenses, certificates or approvals having force of law, domestic or foreign, relating to environmental, health, or safety matters or
hazardous or toxic substances or wastes, pollutants or contaminants (collectively, “Environmental Laws”). Without
limiting the generality of the foregoing and except as otherwise described in the Registration Statement and Prospectus: (i) the Company
and each of its Subsidiaries has occupied its properties and has received, handled, used, stored, treated, shipped and disposed of all
pollutants, contaminants, hazardous or toxic materials, controlled or dangerous substances or wastes in compliance with all applicable
Environmental Laws to conduct their respective businesses; (ii) neither the Company nor any of its Subsidiaries is aware of any unlawful
spills, releases, discharges or disposal of any pollutants, contaminants, hazardous or toxic materials, controlled or dangerous substances
or wastes that have occurred or are presently occurring on or from its properties as a result of any construction on or operation and
use of its properties, (iii) there are no orders, rulings or directives issued against the Company or any of its Subsidiaries, and there
are no orders, rulings or directives pending or, to the knowledge of the Company, threatened against the Company or any of its Subsidiaries
under or pursuant to any Environmental Laws requiring any work, repairs, construction or capital expenditures with respect to any properties
or assets of the Company or any of its Subsidiaries; and (iv) no notice with respect to any of the matters referred to in this Section
6(x), including any alleged violations by the Company or any of the Subsidiaries with respect thereto has been received by the Company
or any of its Subsidiaries, and no writ, injunction, order or judgment is outstanding, and no legal proceeding under or pursuant to any
Environmental Laws or relating to the ownership, use, maintenance or operation of the properties and assets of the Company or any of
its Subsidiaries is in progress, pending or threatened, which could reasonably be expected to have a Material Adverse Effect, and to
the knowledge of the Company, there are no grounds or conditions which exist, on or under any property now or previously owned, operated
or leased by the Company or any of its Subsidiaries, on which any such legal proceeding might be commenced with any reasonable likelihood
of success or with the passage of time, or the giving of notice or both, would give rise thereto.
(z)
Accounting Controls and Disclosure Controls. The Company and each of its Significant Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s
general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain accountability for assets; (iii) receipts and expenditures are being made only in accordance
with management’s general or specific authorization; (iv) access to assets is permitted only in accordance with management’s
general or specific authorization; and (v) the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. Except as described in the Registration Statement and the
Prospectus, since the end of the Company’s most recent audited fiscal year, there has been (A) no material weakness in the
Company’s internal control over financial reporting (whether or not remediated) and (B) no change 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. The Company and its Significant Subsidiaries, considered as one enterprise, have established and currently
maintain disclosure controls and procedures that comply with Rule 13a-15 under the Exchange Act, and the Company has determined that
such disclosure controls and procedures are effective in compliance with Rule 13a-15 under the Exchange Act.
(aa)
Compliance with the Sarbanes-Oxley Act. There is and has been no failure on the part of the Company or any of the Company’s
directors or officers, in their capacities as such, to comply in all material respects with any applicable provision of the Sarbanes-Oxley
Act of 2002 and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”), including
Section 402 related to loans and Sections 302 and 906 related to certifications.
(bb)
Payment of Taxes. All tax returns of the Company and its Significant Subsidiaries required by law to be filed have been timely
filed and all taxes shown by such returns or otherwise assessed, which are due and payable, have been paid, except assessments against
which appeals have been or will be promptly taken and as to which adequate reserves have been provided. The charges, accruals and reserves
on the books of the Company in respect of any income and corporation tax liability for any years not finally determined are adequate
to meet any assessments or re-assessments for additional income tax for any years not finally determined, except to the extent of any
inadequacy that would not result in a Material Adverse Effect.
(cc)
Stock Transfer Taxes. On each Settlement Date, all stock transfer or other taxes (other than income taxes) which are required
to be paid in connection with the sale and transfer of the Shares to be sold hereunder and under any Terms Agreement, as applicable,
will be, or will have been, fully paid or provided for by the Company and all laws imposing such taxes will be or will have been fully
complied with.
(dd)
Statistical and Market-Related Data. The statistical and market-related data included or incorporated by reference in the Registration
Statement and the Prospectus are based on or derived from sources that the Company believes to be reliable and accurate, and the Company
has obtained the written consent to the use of such data from such sources to the extent required.
(ee)
Foreign Corrupt Practices Act. None of the Company, any Subsidiary or, to the knowledge of the Company, any director, officer,
agent, employee, affiliate or other person acting on behalf of the Company or any of its Subsidiaries, is aware of or has taken any action,
directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and
the rules and regulations thereunder (collectively, the “FCPA”), including, without limitation, making use
of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or
authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value
to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any
candidate for foreign political office, in contravention of the FCPA. The Company and the Subsidiaries have conducted their respective
businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance therewith.
(ff)
Money Laundering Laws. The operations of the Company and its 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 its Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(gg)
OFAC. None of the Company, its Subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee, affiliate
or representatives of the Company or any of its Subsidiaries is an individual or entity (“Person”) currently
the subject or target of any sanctions administered or enforced by the United States Government, including, without limitation, the U.S.
Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council,
the European Union, His Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”),
nor is the Company located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation,
the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region of Ukraine, Cuba, Iran,
North Korea and Syria); and the Company will not directly or indirectly use the net proceeds of the sale of the Shares, or lend, contribute
or otherwise make available such net proceeds to any Subsidiaries, joint venture partners or other Person, to fund any activities of
or business with any Person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions or in any
other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as underwriter,
advisor, investor or otherwise) of Sanctions.
(hh)
Related Party Transactions. No relationship, direct or indirect, exists between or among the Company or any of its Subsidiaries
on the one hand, and the directors, officers, trustees, managers, stockholders, partners, customers or suppliers of the Company or any
of the Subsidiaries on the other hand, which would be required by the Securities Act to be disclosed in the Registration Statement and
the Prospectus, which is not so disclosed.
(ii)
REIT Status. Commencing with its initial taxable year ended 2021, the Company has been organized and operated in conformity with
the requirements for qualification and taxation as a real estate investment trust (“REIT”) under the Internal
Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder (collectively, the “Code”),
and the Company’s current and proposed method of operations as described in the Registration Statement and the Prospectus will
enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code for its taxable year ended December 31,
2021 and thereafter. No transaction or other event has occurred that could cause the Company to not be able to qualify as a REIT for
its taxable year ending December 31, 2023 or future taxable years. Except as otherwise disclosed in the Registration Statement and
the Prospectus, the Company and each of its Subsidiaries have no intention of changing their operations or engaging in activities that
would cause the Company to fail to qualify, or make economically undesirable the Company’s continued qualification, as a REIT under
the Code.
(jj)
Description of Organization and Method of Operations. The description of the Company’s organization and current and proposed
method of operations and its qualification and taxation as a REIT set forth in the Registration Statement and the Prospectus is accurate
and presents fairly the matters referred to therein. The Company’s conflicts of interest, operating policies, investment guidelines
and operating restrictions described or incorporated by reference in the Registration Statement and the Prospectus accurately reflect
the guidelines and policies of the Company with respect to the operation of its business, and no material deviation from such guidelines
or policies is currently contemplated.
(kk)
ERISA. (i) The Company and its Significant Subsidiaries and any “employee benefit plan” (as defined in Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended, and the regulations and published interpretations thereunder (collectively,
“ERISA”)) established or maintained by the Company, its Significant Subsidiaries or their ERISA Affiliates
(as defined below) are in compliance in all material respects with ERISA and the Code; (ii) no “reportable event” (as defined
under ERISA), other than an event for which the reporting requirement has been waived under regulations issued by the Pension Benefit
Guaranty Corporation, has occurred with respect to any pension plan subject to Title IV of ERISA that is established or maintained by
the Company, its Significant Subsidiaries or any of their ERISA Affiliates (“Pension Plan”); (iii) no Pension
Plan’s benefit liabilities under Section 4001(a)(16) of ERISA exceed the current value of that Pension Plan’s assets, all
as determined as of the most recent valuation date for the Pension Plan in accordance with the assumptions used for funding the
Pension Plan pursuant to Section 412 of ERISA; (iv) none of the Company, its Significant Subsidiaries or any of their ERISA Affiliates
has incurred or reasonably expects to incur any liability under (A) Title IV of ERISA with respect to termination of, or withdrawal from,
any “employee benefit plan,” (B) Sections 4971 or 4975 of the Code, (C) Section 412 of the Code as a result of a failure
to satisfy the minimum funding standard, or (D) Section 4980B of the Code with respect to the excise tax imposed thereunder; and (v)
each “employee benefit plan” established or maintained by the Company, its Significant Subsidiaries or any of their ERISA
Affiliates that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the Internal
Revenue Service and nothing has occurred, whether by action or failure to act, which is reasonably likely to cause disqualification of
any such employee benefit plan under Section 401(a) of the Code, except in the case of each of clauses (i) through (v), which would not
have a Material Adverse Effect. “ERISA Affiliate” means, with respect to the Company or a Significant Subsidiary,
any member of any group of organizations described in Section 414(b), (c), (m) or (o) of the Code, of which the Company or such Significant
Subsidiary is a member.
(ll)
Labor Disputes. No labor disturbance by or dispute with employees of the Company or any of its Subsidiaries exists or, to the
knowledge of the Company, is threatened which would reasonably be expected to result in a Material Adverse Effect.
(mm) Market
Capitalization. As of the close of trading on the Exchange on the Trading Day immediately prior to the date of this Agreement, the
aggregate market value of the outstanding voting and non-voting common equity (as defined in Securities Act Rule 405) of the Company
held by persons other than affiliates of the Company (within the meaning of Securities Act Rule 144) (the “Non-Affiliate
Shares”), was approximately $263 million (calculated by multiplying (x) the highest price at which the common equity of
the Company was last sold on the Exchange on a Trading Day within 60 days prior to the date of this Agreement times (y) the number of
Non-Affiliate Shares).
(nn)
No Material Defaults. Neither the Company nor any of the Subsidiaries has defaulted on any installment on indebtedness for borrowed
money or on any rental on one or more long-term leases, which defaults, individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect. The Company has not filed a report pursuant to Section 13(a) or 15(d) of the Exchange Act since the
filing of its last Annual Report on Form 10-K, indicating that it (i) has failed to pay any dividend or sinking fund installment on preferred
stock or (ii) has defaulted on any installment on indebtedness for borrowed money or on any rental on one or more long-term leases, which
defaults, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(oo)
Absence of Manipulation. Neither the Company, nor any of its Subsidiaries, nor any of its or their respective directors, officers
or, to the knowledge of the Company, controlling persons has taken, directly or indirectly, any action designed to stabilize or manipulate,
or which has constituted or might reasonably be expected to cause or result in, the stabilization or manipulation of, the price of any
security of the Company to facilitate the sale or resale of the Shares.
(pp)
Director Independence. Each of the independent directors (or independent director nominees, once appointed, if applicable) named
in the Registration Statement and Prospectus satisfies the independence standards established by the Exchange and, with respect to members
of the Company’s audit committee, the enhanced independence standards contained in Rule 10A-3(b)(1) promulgated by the Commission
under the Exchange Act.
(qq)
Broker-Dealer Status; FINRA Matters. The Company is not required to register as a “broker” or “dealer”
in accordance with the provisions of the Exchange Act and does not, directly or indirectly through one or more intermediaries, control
or have any other association with (within the meaning of Article I of the By-laws of FINRA) any member firm of FINRA. No relationship,
direct or indirect, exists between or among the Company, on the one hand, and the directors, officers or stockholders of the Company,
on the other hand, which is required by the rules of FINRA to be described in the Registration Statement and the Prospectus, which is
not so described. The offering of the Shares pursuant to this Agreement and each Terms Agreement qualifies for the exemption from the
filing requirements of FINRA Rule 5110 afforded by FINRA Rule 5110(b)(7)(C)(i).
(rr)
Margin Rules. Neither the issuance, sale and delivery of the Shares nor the application of the proceeds thereof by the Company
as described in the Registration Statement and the Prospectus will violate Regulation T, U or X of the Board of Governors of the Federal
Reserve System or any other regulation of such Board of Governors.
(ss)
Underwriter Agreements. The Company is not a party to any agreement with an agent or underwriter for any other “at-the-market”
or continuous equity transaction or any “equity line” transaction except for the Alternative Sales Agreements.
(tt)
No Reliance. The Company has not relied upon Agent or its legal counsel for any legal, tax or accounting advice in connection
with the offering and sale of the Shares.
(uu)
No Integration. Neither the Company nor, to the Company’s knowledge, any of its affiliates (within the meaning of Securities
Act Rule 144) has, prior to the date hereof, made any offer or sale of any securities which could be “integrated” (within
the meaning of the Securities Act) with the offer and sale of the Shares.
(vv)
Cybersecurity. With such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect: (A) there
has been no security breach or incident, unauthorized access or disclosure, or other compromise of or relating to the Company’s
or any of its Subsidiaries’ information technology and computer systems, networks, hardware, software, data and databases (including
the data and information of their respective tenants, customers, employees, suppliers, vendors and any third party data maintained, processed
or stored by the Company or any of its Subsidiaries, and any such data processed or stored by third parties on behalf of the Company
or any of its Subsidiaries), equipment or technology (collectively, “IT Systems and Data”); (B) neither the
Company nor any of its Subsidiaries has been notified of, and has no knowledge of any event or condition that would result in, any security
breach or incident, unauthorized access or disclosure or other compromise to their IT Systems and Data; and (C) the Company and its Subsidiaries
have implemented appropriate controls, policies, procedures and technological safeguards to maintain and protect the integrity, continuous
operation, redundancy and security of their IT Systems and Data reasonably consistent with industry standards and practices, or as required
by applicable regulatory standards. The Company and its Subsidiaries are presently in material compliance with all applicable laws and
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 Data and to the protection of such IT Systems
and Data from unauthorized use, access, misappropriation or modification.
7. Representations
and Warranties of the Manager. The Manager represents and warrants to, and agrees with, Agent that as of (i) the date of
this Agreement, (ii) each Representation Date (as defined in Section 8(m)) on which a certificate is required to be delivered
pursuant to Section 8(m), (iii) the date on which any Placement Notice is delivered by the Company hereunder, (iv) the date
on which any Terms Agreement is executed by the Company and Agent and (v) each Applicable Time, as the case may be:
(a)
Organization of the Manager. Manager has been duly incorporated and is validly existing as a limited liability company in good
standing under the laws of the State of Delaware, with the limited liability company power and authority to acquire, own, lease and operate
its properties, and to lease the same to others, and to conduct its business as described in the Registration Statement and the Prospectus,
to execute and deliver this Agreement and each Terms Agreement and perform its obligations under this Agreement and each Terms Agreement;
and the Manager is in compliance in all respects with the laws, orders, rules, regulations and directives issued or administered by such
jurisdictions, except where the failure to be in compliance would not, individually or in the aggregate, have a Manager Material Adverse
Effect (as defined below). The Manager is duly qualified as a foreign limited liability company to transact business and in good standing
in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct
of its business, except where the failure to be so qualified or in good standing would not, singly or in the aggregate, reasonably be
expected to result in a Manager Material Adverse Effect.
(b)
No Material Adverse Change in Business. Subsequent to the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been (i) any material adverse change in the business, operations, properties, financial condition,
results of operations or prospects of the Manager or (ii) in the ability of the Manager to perform its obligations under the Management
Agreement (collectively, a “Manager Material Adverse Effect”).
(c)
Management Agreement. The Management Agreement has been duly authorized, executed and delivered by, and is a valid and legally
binding agreement of, the Manager, enforceable against the Manager in accordance with its terms, except to the extent that enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and
by general equitable principles.
(d)
Authorization. This Agreement has been duly authorized, executed and delivered by the Manager and constitutes a valid and legally
binding obligation of the Manager, enforceable against the Manager in accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’
rights generally and by general principles of equity. This Agreement conforms in all material respects to the descriptions thereof in
the Registration Statement and the Prospectus.
(e)
Registration as an Investment Adviser. The Manager is an exempt reporting adviser under Investment Company Act, and the Manager
is not prohibited by the Investment Company Act from acting under the Management Agreement as the manager of the Company, as contemplated
by the Registration Statement and the Prospectus.
(f)
Absence of Defaults or Conflicts. The Manager is not (i) in breach or violation of its certificate of formation, operating agreement,
or other similar organizational documents, (ii) in breach of or in Default under any indenture, mortgage, loan or credit agreement, deed
of trust, note, contract, franchise, lease or other agreement, obligation, condition, covenant or instrument to which the Manager is
a party or by which it may be bound or to which any of the property or assets of the Manager is subject (each, a “Manager Existing
Instrument”), or (iii) in violation of any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Manager or any of its properties
or assets, as applicable, except, with respect to clauses (ii) and (iii) only, for such breaches, violations or Defaults that would not,
individually or in the aggregate, have a Manager Material Adverse Effect. The Manager’s execution, delivery and performance of
this Agreement, the Management Agreement and each Terms Agreement and consummation of the transactions contemplated hereby or thereby
or by the Registration Statement and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the
sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) (i) have been duly authorized by all
necessary limited liability company action, and will not result in any breach or violation of the Manager’s certificate of formation,
operating agreement, or other similar organizational documents, (ii) will not conflict with or constitute a breach of, or Default or
a Manager Debt Repayment Triggering Event (as defined below) under, or result in the creation or imposition of any lien, charge, claim
or encumbrance upon any property or assets of the Manager pursuant to, or require the consent of any other party to, any Manager Existing
Instrument, and (iii) will not result in any violation of any statute, law, rule, regulation, judgment, order or decree applicable to
the Manager of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction
over the Manager or any of its properties or assets, as applicable, except, with respect to clauses (ii) and (iii) only, for such conflicts,
breaches, Defaults, Debt Manager Repayment Triggering Events or violations that would not, individually or in the aggregate, have a Manager
Material Adverse Effect. As used herein, a “Manager Debt Repayment Triggering Event” means any event or condition which gives,
or with the giving of notice or lapse of time or both would give, the holder of any note, debenture or other evidence of indebtedness
(or any person acting on such holder’s behalf), issued by the Manager, the right to require the repurchase, redemption or repayment
of all or a portion of such indebtedness by the Manager.
(g)
Absence of Further Requirements. No consent, approval, license, permit, qualification, authorization or other order or decree
of, or registration or filing with, any court or other governmental or regulatory authority or agency is required for the Manager’s
execution, delivery and performance of this Agreement, the Management Agreement and each Terms Agreement or consummation of the transactions
contemplated hereby or thereby or by the Registration Statement and the Prospectus (including the issuance and sale of the Shares hereunder
or under any Terms Agreement), except such as have been already obtained or made or as may be required under the Securities Act, applicable
state securities or Blue Sky laws, the rules of the Exchange, or the rules and regulations of FINRA.
(h)
Absence of Proceedings. Except as disclosed in the Registration Statement and Prospectus, there are no actions, suits, claims,
investigations or proceedings pending or, to the Manager’s knowledge, threatened to which the Manager is or would be a party, or
of which any of the respective properties or assets of the Manager is or would be subject, at law or in equity, before any court or arbitral
body or by or before any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, which
are required to be disclosed in the Registration Statement or Prospectus, or which would reasonably be expected to result in a judgment,
decree or order having, individually or in the aggregate, a Manager Material Adverse Effect, or which could materially and adversely
affect the respective properties or assets of the Manager. The aggregate of all pending legal or governmental proceedings to which the
Manager is a party or of which any of its properties or assets is the subject which are not described in the Registration Statement and
Prospectus, including ordinary routine litigation incidental to the business of the Manager, would not, individually or in the aggregate,
result in a Manager Material Adverse Effect.
(i)
Possession of Licenses and Permits. The Manager has all necessary licenses, authorizations, consents and approvals and has made
all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary licenses,
certificates, authorizations, orders, permits, consents and approvals from other persons, in order to acquire and own, lease or sublease,
lease to others and conduct its respective business as described in the Registration Statement or Prospectus, except where the failure
to have or obtain such licenses, permits, authorizations, consents and approvals and to make such filings would not, individually or
in the aggregate, have a Manager Material Adverse Effect. All of such license, permit, authorization, consent or approval are valid and
in full force and effect, except where the invalidity of such license, permit, authorization, consent or approval to be in full force
and effect would not have a Manager Material Adverse Effect. The Manager is not in violation of, or in default under, or has received
notice of any proceedings relating to revocation or modification of, any such license, permit, authorization, consent or approval (or
has any reason to believe that any such license, permit, authorization, consent or approval will not be renewed in the ordinary course)
or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Manager, except where
such violation, default, revocation or modification would not, individually or in the aggregate, have a Manager Material Adverse Effect.
(j)
Internal Controls. The Manager operates under the Company’s system of internal accounting controls in order to provide reasonable
assurance that (A) transactions effectuated by the Manager on behalf of the Company pursuant to the Manager’s duties set forth
in the Management Agreement are executed in accordance with its management’s general or specific authorization, and (B) access
to assets of the Company is permitted only in accordance with its management’s general or specific authorization.
(k)
Foreign Corrupt Practices Act. Neither the Manager, nor, to the knowledge of the Manager, any director, officer, agent, employee,
affiliate or other person acting on behalf of the Manager, is aware of or has taken any action, directly or indirectly, that would result
in a violation by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term
is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention
of the FCPA. The Manager has conducted its businesses in compliance with the FCPA and has instituted and maintained policies and procedures
designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(l) Money
Laundering Laws. The operations of the Manager are and have been conducted at all times in compliance with 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 Manager with respect to the Money Laundering Laws is pending or, to the knowledge of Manager, threatened.
(m) OFAC.
Neither the Manager, nor, to the knowledge of the Manager, any director, officer, agent, employee, affiliate or representatives of
the Manager is an individual or entity (“Management Person”) currently the subject or target of any
Sanctions, nor is the Manager located, organized or resident in a country or territory that is the subject of Sanctions (including,
without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region
of Ukraine, Cuba, Iran, North Korea and Syria); and the Manager will not directly or indirectly use the net proceeds of the sale of
the Shares, or lend, contribute or otherwise make available such net proceeds to any Subsidiaries, joint venture partners or other
Management Person, to fund any activities of or business with any Management Person, or in any country or territory, that, at the
time of such funding, is the subject of Sanctions or in any other manner that will result in a violation by any Management Person
(including any Management Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of
Sanctions.
(n) Absence
of Manipulation. Neither the Manager, nor its directors, officers or, to the knowledge of the Manager, controlling persons has
taken, directly or indirectly, any action designed to stabilize or manipulate, or which has constituted or might reasonably be
expected to cause or result in, the stabilization or manipulation of, the price of any security of the Company to facilitate the
sale or resale of the Shares.
(o) Key
Employees. To the Manager’s knowledge, none of its executives or key personnel is subject to any non-compete,
non-disclosure, confidentiality, employment, consulting or similar agreement that would be violated by the Manager’s business
activities as described in the Registration Statement and the Prospectus, except, in each case, as would not reasonably be expected
to have, individually or in the aggregate, a Manager Material Adverse Effect.
Any certificate signed by
an officer of the Company and/or the Manager and delivered to Agent or to counsel for Agent pursuant to or in connection with this Agreement
or any Terms Agreement shall be deemed to be a representation and warranty by the Company and/or the Manager to Agent as to the matters
set forth therein as of the date or dates indicated therein.
8.
Covenants of the Company . The Company covenants and agrees with Agent that:
(a) Registration
Statement Amendments. After the date of this Agreement and during any period in which a Prospectus relating to any Shares is
required to be delivered by Agent under the Securities Act (without regard to the effects of Rules 153, 172 and 173 under the
Securities Act) (the “Prospectus Delivery Period”), (i) the Company will notify Agent promptly of the time
when any subsequent post-effective amendment to the Registration Statement, other than the Incorporated Documents, has been filed
with the Commission and/or has become effective or any subsequent supplement to the Prospectus has been filed and of any request by
the Commission for any amendment or supplement to the Registration Statement or Prospectus or for additional information, (ii) the
Company will prepare and file with the Commission, promptly upon Agent’s request, any amendments or supplements to the
Registration Statement or Prospectus that, in Agent’s reasonable judgment, may be necessary or advisable in connection with
the distribution of the Shares by Agent (provided, however, that the failure of Agent to make such request shall not relieve
the Company of any obligation or liability hereunder and under any Terms Agreement, as applicable, or affect Agent’s right to
rely on the representations and warranties made by the Company and the Manager in this Agreement); (iii) the Company will not file
any amendment or supplement to the Registration Statement or Prospectus relating to the Shares (except for the Incorporated
Documents) unless a copy thereof has been submitted to Agent a reasonable period of time before the filing and Agent has not
reasonably objected thereto (provided, however, (A) that the failure of Agent to make such objection shall not relieve the
Company of any obligation or liability hereunder and under any Terms Agreement, as applicable, or affect Agent’s right to rely
on the representations and warranties made by the Company and the Manager in this Agreement, (B) that, if Agent objects thereto,
Agent may cease making sales of Placement Shares pursuant to this Agreement and/or may terminate any Terms Agreement and (C) that
the Company has no obligation to provide Agent any advance copy of such filing or to provide Agent an opportunity to object to such
filing if such filing does not name Agent or does not relate to the transactions contemplated hereunder or under any Terms
Agreement); (iv) the Company will furnish to Agent at the time of filing thereof a copy of any document that upon filing is deemed
to be incorporated by reference into the Registration Statement or Prospectus, except for those documents available via EDGAR; and
(v) the Company will cause each amendment or supplement to the Prospectus to be filed with the Commission as required pursuant to
the applicable paragraph of Rule 424(b) of the Securities Act (without reliance on Rule 424(b)(8) of the Securities Act) or, in the
case of any Incorporated Document, to be filed with the Commission as required pursuant to the Exchange Act, within the time period
prescribed (the determination to file or not file any amendment or supplement with the Commission under this Section 8(a),
based on the Company’s reasonable opinion or reasonable objections, shall be made exclusively by the Company).
(b) Notice
of Commission Stop Orders. During the Prospectus Delivery Period, the Company will advise Agent, promptly after it receives
notice or obtains knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or any notice objecting to, or other order preventing or suspending the use of, the Prospectus, of the
suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation of any proceeding for
any such purpose or any examination pursuant to Section 8(e) of the Securities Act, or if the Company becomes the subject of a
proceeding under Section 8A of the Securities Act in connection with the offering of the Shares; and it will promptly use its
commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such a stop order should be
issued. Until such time as any stop order is lifted, Agent may cease making offers and sales under this Agreement or any Terms
Agreement.
(c)
Delivery of Prospectus; Subsequent Changes. During the Prospectus Delivery Period, the Company will comply with all requirements
imposed upon it by the Securities Act, as from time to time in force, and to file on or before their respective due dates all reports
and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Sections 13(a),
13(c), 14, 15(d) or any other provision of or under the Exchange Act. If the Company has omitted any information from the Registration
Statement pursuant to Rule 430A under the Securities Act, it will use its best efforts to comply with the provisions of and make all requisite
filings with the Commission pursuant to said Rule 430A and to notify Agent promptly of all such filings. If during the Prospectus Delivery
Period any event occurs 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 a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading,
or if during such period it is necessary to amend or supplement the Registration Statement or Prospectus to comply with the Securities
Act, the Company will promptly notify Agent to suspend the offering of Placement Shares during such period, and the Company will promptly
amend or supplement the Registration Statement or Prospectus (at the expense of the Company) so as to correct such statement or omission
or effect such compliance.
(d)
Listing of Placement Shares. During the Prospectus Delivery Period, the Company will use its commercially reasonable efforts
to cause the Placement Shares to be listed on the Exchange. The Company will timely file with the Exchange all material documents and
notices required by the Exchange of companies that have or will issue securities that are traded on the Exchange.
(e)
Delivery of Registration Statement and Prospectus. The Company will furnish to Agent and its counsel (at the expense of
the Company) copies of the Registration Statement, the Prospectus (including all Incorporated Documents) and all amendments and supplements
to the Registration Statement or Prospectus that are filed with the Commission during the Prospectus Delivery Period, including all documents
filed with the Commission during such period that are deemed to be incorporated by reference therein, in each case, as soon as reasonably
practicable via e-mail in “.pdf” format to an e-mail account designated by Agent and, at Agent’s request, will also
furnish copies of the Prospectus to each exchange or market on which sales of the Placement Shares may be made; provided, however,
that the Company shall not be required to furnish any document (other than the Prospectus) to Agent to the extent such document is available
on EDGAR.
(f) Earnings
Statement. The Company will make generally available to its security holders as soon as practicable, but in any event not later
than 16 months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), an
earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) and Rule 158 of the
Securities Act. The terms “earnings statement” and “make generally available to its security holders” shall
have the meanings set forth in Rule 158 under the Securities Act.
(g)
Expenses. The Company, whether or not the transactions contemplated hereunder or under any Terms Agreement are consummated
or this Agreement or any Terms Agreement is terminated in accordance with the provisions of Section 14 hereunder, will pay all
expenses incident to the performance of its obligations hereunder and under each Terms Agreement, including, but not limited to, expenses
relating to: (i) the preparation, printing, filing and delivery to Agent of the Registration Statement and each amendment and supplement
thereto, of each Prospectus and of each amendment and supplement thereto, and of this Agreement and such other documents as may be required
in connection with the offer, purchase, sale, issuance or delivery of the Shares; (ii) the preparation, issuance and delivery of the Placement
Shares, including any stock or other transfer taxes and any stamp or other duties payable upon the sale, issuance or delivery of the Shares
to Agent; (iii) the fees and disbursements of the counsel, accountants and other advisors to the Company in connection with the transactions
contemplated by this Agreement and any Terms Agreement; (iv) the reimbursement for reasonable out-of-pocket expenses incurred by Agent,
including the fees and disbursements of counsel to Agent, in connection with the transactions contemplated by this Agreement, in an amount
not to exceed $100,000; provided, however, that the Company shall reimburse Agent for all such reasonable documented out-of-pocket
expenses incurred in connection with each Representation Date (as defined below), other than a 10-K Representation Date (as defined below)
in an amount not to exceed an additional $15,000 per such Representation Date; provided further, that the Company shall reimburse
Agent for all such reasonable documented out-of-pocket expenses incurred in connection with each 10-K Representation Date in an amount
not to exceed an additional $25,000 per such 10-K Representation Date ; (v) the qualification of the Placement Shares under securities
laws in accordance with the provisions of Section 8(x), including filing fees, if any; (vi) the fees and expenses incurred in connection
with the listing or qualification of the Placement Shares for trading on the Exchange; (vii) the fees and expenses of the transfer agent
or registrar for the Common Stock; (viii) filing fees and expenses, if any, of the Commission and FINRA and (ix) the reimbursement for
reasonable out-of-pocket expenses incurred by Agent, including fees and disbursements of counsel to Agent, in an amount not to exceed
$25,000 for each program “refresh” in connection with the expansion, reduction or other change in size or amount of Common
Stock available pursuant to this Agreement.
(h)
Use of Proceeds. The Company will use the Net Proceeds from the sale of the Shares as described in the Prospectus in the
section entitled “Use of Proceeds.”
(i) Other
Sales. Without the prior written consent of Agent, the Company will not, directly or indirectly, offer to sell, sell, contract
to sell, grant any option to sell or otherwise dispose of any Common Stock (other than the Shares offered pursuant to this
Agreement) or securities convertible into or exchangeable for Common Stock, warrants or any rights to purchase or acquire, Common
Stock during the period beginning on the fifth (5th) Trading Day immediately prior to the date on which any
Placement Notice is delivered to Agent hereunder and ending on the fifth (5th) Trading Day immediately following the
final Settlement Date with respect to Shares sold pursuant to such Placement Notice (or, if the Placement Notice has been terminated
or suspended prior to the sale of all Shares covered by a Placement Notice, the date of such suspension or termination); and will
not directly or indirectly in any other “at-the-market” or continuous equity transaction offer to sell, sell, contract
to sell, grant any option to sell or otherwise dispose of any Common Stock (other than the Shares offered pursuant to this
Agreement) or securities convertible into or exchangeable for Common Stock, warrants or any rights to purchase or acquire, Common
Stock prior to the later of the termination of this Agreement and the twentieth (20th) day immediately following the
final Settlement Date with respect to Shares sold pursuant to such Placement Notice; provided, however, that such
restrictions will not be required in connection with the Company’s issuance or sale of (i) Common Stock, options to
purchase Common Stock, other equity awards to acquire Common Stock, or Common Stock issuable upon the exercise or vesting of options
or other equity awards, pursuant to any employee or director equity awards or benefits plan, stock ownership plan or dividend
reinvestment plan (but not Common Stock subject to a waiver to exceed plan limits in its dividend reinvestment plan) of the Company
whether now in effect or hereafter implemented, (ii) Common Stock issuable upon conversion of securities or the exercise or
vesting of warrants, options or other rights in effect or outstanding, and disclosed in filings by the Company available on EDGAR or
otherwise in writing to Agent and (iii) Common Stock or securities convertible into or exchangeable for shares of Common Stock
as consideration for mergers, acquisitions, other business combinations or strategic alliances, or offered and sold in a privately
negotiated transaction to vendors, customers, lenders, investors, strategic partners or potential strategic partners, occurring
after the date of this Agreement which are not issued primarily for capital raising purposes.
(j)
Change of Circumstances. The Company will, at any time during the term of this Agreement, advise Agent promptly after it
shall have received notice or obtained knowledge of any information or fact that would alter or affect in any material respect any opinion,
certificate, letter or other document required to be provided to Agent pursuant to this Agreement.
(k)
Due Diligence Cooperation. The Company will cooperate with any reasonable due diligence review conducted by Agent or its
agents in connection with the transactions contemplated hereby or any Terms Agreement, including, without limitation, providing information
and making available documents and senior corporate officers, during regular business hours and at the Company’s principal offices,
as Agent may reasonably request.
(l) Required
Filings Relating to Placement of Placement Shares. The Company agrees that (i) as promptly as practicable after the close of
each of the Company’s fiscal quarters, or on such other dates as required under the Securities Act or under interpretations by
the Commission thereof, the Company shall prepare a prospectus supplement, which will set forth the number of Placement Shares sold
to or through Agent during such quarterly period (or other relevant period), the Net Proceeds to the Company and the compensation
paid or payable by the Company to Agent with respect to such sales of Placement Shares and shall file such prospectus supplement
pursuant to Rule 424(b) under the Securities Act (and within the time periods required by Rule 424(b) and Rule 430A, 430B or 430C
under the Securities Act, as applicable) and shall file any issuer free writing prospectus that is required to be filed with the
Commission within the applicable time period prescribed for such filing by Rule 433 of the Securities Act or (ii) if such prospectus
supplement is not so filed with respect to a particular fiscal quarter, the Company shall disclose the information referred to in
clause (i) above in its annual report on Form 10-K or its quarterly report on Form 10-Q, as applicable, in respect of such quarterly
period and shall file such report with the Commission within the applicable time period prescribed for such report under the
Exchange Act. The Company shall not file any such prospectus supplement or issuer free writing prospectus relating to such sales,
and shall not file any report containing disclosure relating to such sales, unless a copy of such prospectus supplement or issuer
free writing prospectus or disclosure relating to such sales to be included in a Form 10-K or Form 10-Q (it being acknowledged and
agreed that the Company shall not submit any portion of any Form 10-K or Form 10-Q other than the specific disclosure relating to
any sales of Placement Shares), as applicable, has been submitted to Agent a reasonable period of time before the filing and Agent
has not reasonably objected thereto (provided, however, (A) that the failure of Agent to make such objection shall not relieve the
Company of any obligation or liability hereunder and under any Terms Agreement, or affect Agent’s right to rely on the
representations and warranties made by the Company and the Manager in this Agreement, and (B) that, if Agent objects thereto, Agent
may cease making sales of Placement Shares pursuant to this Agreement or any Terms Agreement). The Company shall provide copies of
the Prospectus and such prospectus supplement and any issuer free writing prospectus to Agent via e-mail in “.pdf”
format on such filing date to an e-mail account designated by Agent and shall also furnish copies of the Prospectus and such
prospectus supplement to each exchange or market on which sales of the Placement Shares may be made as may be required by the rules
or regulations of such exchange or market.
(m) Representation
Dates; Certificate. On or prior to the date the first Placement Notice is given pursuant to this Agreement, each time Shares are
delivered to Agent as principal on a Settlement Date with respect to a Principal Transaction and each time the Company (i) files the
Prospectus relating to the Shares or amends or supplements the Registration Statement or the Prospectus relating to the Shares
(other than (A) a prospectus supplement filed in accordance with Section 8(l) or (B) a supplement or amendment that relates
to an offering of securities other than the Shares) by means of a post-effective amendment, sticker, or supplement, but not by means
of incorporation of document(s) by reference in the Registration Statement or the Prospectus relating to the Shares; (ii) files an
annual report on Form 10-K under the Exchange Act (including any Form 10-K/A containing amended financial information or a material
amendment to the previously filed Form 10-K) (a “10-K Representation Date”); (iii) files a quarterly
report on Form 10-Q under the Exchange Act; (iv) files a report on Form 8-K containing amended financial information (other than
information “furnished” pursuant to Items 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of
Form 8-K relating to the reclassifications of certain properties as discontinued operations in accordance with Statement of
Financial Accounting Standards No. 144) under the Exchange Act; or (v) at any other time reasonably requested by Agent (each date of
filing of one or more of the documents referred to in clauses (i) through (iv) and at any time as reasonably requested by Agent
pursuant to clause (v) shall be a “Representation Date”); the Company shall furnish Agent within two
(2) Trading Days after each Representation Date (but in the case of clause (iv) above only if Agent reasonably determines that the
information contained in such Form 8-K is material) with the certificate, in the form attached hereto as Exhibit 8(m). The
requirement to provide the certificate under this Section 8(m) shall be automatically waived for any Representation Date
occurring at a time at which no Placement Notice or Terms Agreement is pending, which waiver shall continue until the earlier to
occur of the date the Company delivers a Placement Notice hereunder (which for such calendar quarter shall be considered a
Representation Date), Shares are delivered to Agent as principal on a Settlement Date with respect to a Principal Transaction and
the next occurring Representation Date; provided, however, that such waiver shall not apply for any 10-K Representation Date.
Notwithstanding the foregoing, if the Company subsequently decides to sell Shares following a Representation Date when the Company
relied on such waiver and did not provide Agent with a certificate under this Section 8(m), then before the Company delivers
the Placement Notice or Agent sells any Shares in an Agency Transaction, or on the applicable Settlement Date with respect to a
Principal Transaction, the Company shall provide Agent with a certificate, in the form attached hereto as Exhibit 8(m), dated
the date of the Placement Notice for such Agency Transaction or the Settlement Date of such Principal Transaction, as
applicable.
(n) Legal Opinions.
On or prior to the earlier of (i) the date the first Placement Notice is given pursuant to this Agreement and (ii) Shares are delivered
to Agent as principal on a Settlement Date with respect to the first Principal Transaction pursuant to the first Terms Agreement and
this Agreement, the Company shall cause to be furnished to Agent the written opinion and 10b-5 statement of Eversheds Sutherland (US)
LLP, or other counsel reasonably satisfactory to Agent, to the effect set forth in Exhibit 8(n)-1, as issuer’s counsel to
the Company, dated the date that the opinion and 10b-5 statement are required to be delivered, (“Company Counsel”),
the written opinion of Eversheds Sutherland (US) LLP, or other tax counsel reasonably satisfactory to Agent, to the effect set forth
in Exhibit 8(n)-2, in its capacity as tax counsel for the Company (“Company Tax Counsel”), dated the
date that the opinion is required to be delivered, , the written opinion of Venable LLP, or other Maryland counsel reasonably satisfactory
to Agent, in its capacity as Maryland counsel for the Company (“Company Maryland Counsel”), to the effect set
forth in Exhibit 8(n)-3, dated the date that the opinion is required to be delivered, and the written opinion of DLA Piper LLP
(US), counsel for Agent (“Agent Counsel”), dated the date the opinion is required to be delivered. Thereafter,
each time Shares are delivered to Agent as principal on a Settlement Date with respect to a Principal Transaction and within two (2)
Trading Days after each Representation Date with respect to which the Company is obligated to deliver the certificate in the form attached
hereto as Exhibit 8(m) for which no waiver is applicable pursuant to Section 8(m), and not more than once per calendar
quarter, the Company shall cause to be furnished to Agent the written opinion and 10b-5 statement of Company Counsel, the written opinion
of Company Tax Counsel, the written opinion of Company Maryland Counsel, and the written opinion of Agent Counsel substantially in the
form previously agreed between the Parties, modified, as necessary, to relate to the Registration Statement and the Prospectus as then
amended or supplemented.
(o)
Comfort Letter. On or prior to the date the first Placement Notice is given pursuant to this Agreement, each time Shares
are delivered to Agent as principal on a Settlement Date with respect to a Principal Transaction and within two (2) Trading Days after
each Representation Date with respect to which the Company is obligated to deliver a certificate in the form attached hereto as Exhibit
8(m) for which no waiver is applicable pursuant to Section 8(m), the Company shall cause BDO USA, LLP to furnish Agent a letter,
dated as of such date (the “Comfort Letter”), in form and substance satisfactory to Agent, (i) confirming that
they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the rules and
regulations of the PCAOB 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, (ii) stating, as of such date, the conclusions and findings of such firm with respect to the
financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection
with registered public offerings (the first such letter, the “Initial Comfort Letter”) and (iii) updating the
Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date
and modified as necessary to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of such
letter.
(p)
Certificate of Principal Financial Officer. On or prior to the date the first Placement Notice is given pursuant to this
Agreement, each time Shares are delivered to Agent as principal on a Settlement Date with respect to a Principal Transaction and within
two (2) Trading Days after each Representation Date, with respect to which the Company is obligated to deliver a certificate in the form
attached hereto as Exhibit 8(m) for which no waiver is applicable pursuant to Section 8(m), the Company shall furnish Agent
with a certificate of the Principal Financial Officer of the Company, dated as of such date, in form and substance reasonably satisfactory
to counsel for the Underwriters, to the effect set forth in Exhibit 8(p).
(q)
Market Activities. The Company shall not, and shall cause its Subsidiaries and its and their respective directors, officers
and controlling persons not to, directly or indirectly, (i) take any action designed to stabilize or manipulate, or which constitutes
or might reasonably be expected to cause or result in, the stabilization or manipulation of, the price of any security of the Company
to facilitate the sale or resale of the Shares or (ii) sell, bid for, or purchase the Shares to be issued and sold pursuant to this Agreement,
or pay anyone any compensation for soliciting the purchases of the Shares, other than Agent.
(r) Compliance
with Laws. The Company and each of its Subsidiaries shall maintain, or cause to be maintained, all material permits, licenses
and other authorizations required by federal, state and local law in order to conduct their businesses as described in the
Prospectus, and the Company and each of its Subsidiaries shall conduct their businesses, or cause their businesses to be conducted,
in substantial compliance with such permits, licenses and authorizations and with applicable laws, except where the failure to
maintain or be in compliance with such permits, licenses and authorizations could not reasonably be expected to have a Material
Adverse Effect.
(s)
REIT Treatment. The Company will use its best efforts to continue to meet the requirements for qualification and taxation
as a REIT under the Code for subsequent tax years that include any portion of the term of this Agreement, unless the Board in good faith
determines by resolution that it is no longer in the Company’s best interests to so qualify.
(t)
Securities Act and Exchange Act. The Company will comply with all requirements imposed upon it by the Securities Act and
the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares
as contemplated by the provisions hereof and any Terms Agreement and the Prospectus. Without limiting the generality of the foregoing,
during the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to the Exchange
Act within the time periods required by the Exchange Act (giving effect to permissible extensions in accordance with Rule 12b-25 under
the Exchange Act).
(u)
Sarbanes-Oxley Act. The Company, and each of the Significant Subsidiaries, will maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or
specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP
and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded book value for assets is compared with the fair market value of such assets (computed in accordance
with GAAP) at reasonable intervals and appropriate action is taken with respect to any differences. The Company will comply with all requirements
imposed upon it by the Sarbanes-Oxley Act and the rules and regulations of the Commission and the Exchange promulgated thereunder.
(v)
No Offer To Sell. Other than a free writing prospectus (as defined in Rule 405 under the Securities Act) approved in advance
in writing by the Company and Agent in its capacity as agent hereunder or as principal hereunder and under any Terms Agreement, neither
Agent nor the Company (including its agents and representatives other than Agent in its capacity as such) will, directly or indirectly,
make, use, prepare, authorize, approve or refer to any free writing prospectus relating to the Shares to be sold by Agent as agent hereunder
or as principal hereunder and under any Terms Agreement.
(w) Investment
Company Act. The Company shall conduct its affairs in such a manner so as to reasonably ensure that neither it nor any of its
Subsidiaries will be or become, at any time prior to the termination of this Agreement, an “investment company,” as such
term is defined in the Investment Company Act.
(x)
Transfer Agent. The Company shall maintain, at its sole expense, a registrar and transfer agent for the Common Stock.
(y)
Blue Sky and Other Qualifications. The Company will use its commercially reasonable efforts, in cooperation with
Agent, to qualify the Placement Shares for offering and sale, or to obtain an exemption for the Placement Shares to be offered and sold,
under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as Agent may designate and to maintain
such qualifications and exemptions in effect for so long as required for the distribution of the Placement Shares (but in no event for
less than one year from the date of this Agreement); provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not
so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
In each jurisdiction in which the Placement Shares have been so qualified or exempt, the Company will file such statements and reports
as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so
long as required for the distribution of the Placement Shares (but in no event for less than one year from the date of this Agreement).
(z)
Renewal of Registration Statement. If, immediately prior to the third (3rd) anniversary of the initial effective
date of the Registration Statement (the “Renewal Date”), any of the Shares remain unsold and this Agreement
has not been terminated for any reason, the Company will, prior to the Renewal Date, file a new shelf registration statement or, if applicable,
an automatic shelf registration statement relating to the Shares, in a form satisfactory to Agent and its counsel, and, if such registration
statement is not an automatic shelf registration statement, will use its best efforts to cause such registration statement to be declared
effective within 180 days after the Renewal Date. The Company will take all other reasonable actions necessary or appropriate to
permit the public offer and sale of the Shares to continue as contemplated in the expired registration statement relating to the Shares.
From and after the effective date thereof, references herein to the “Registration Statement” shall include such new shelf
registration statement or such new automatic shelf registration statement, as the case may be.
(aa) Consent
to Agent Purchases. The Company acknowledges and agrees that Agent may, to the extent permitted under the Securities Act and the
Exchange Act (including, without limitation, Regulation M promulgated thereunder), purchase and sell shares of Common Stock for its
own account and for the account of its clients while this Agreement is in effect, including, without limitation, at the same time
any Placement Notice is in effect or any sales of Shares occur pursuant to this Agreement or any Terms Agreement; provided that
Agent acknowledges and agrees that, except pursuant to a Terms Agreement, any such transactions are not being, and shall not be
deemed to have been, undertaken at the request or direction of, or for the account of, the Company, and that the Company has and
shall have no control over any decision by Agent and its affiliates to enter into any such transactions.
9.
Covenants of the Manager.
(a)
The Manager covenants with the Agent and with the Company that, so long as this Agreement is in effect, it shall promptly notify
the Agent and the Company of the occurrence of any Manager Material Adverse Change and the Manager will forthwith supply such information
to the Company as shall be necessary in the opinion of counsel to the Company and the Agent for the Company to prepare any amendment or
supplement to the Registration Statement and the Prospectus so that, as so amended or supplemented, the same will not include an untrue
statement of a material fact or omit to state a material fact necessary in order to make the statements therein (except in the case of
the Registration Statement, in the light of the circumstances existing at the time it is delivered to a purchaser) not misleading.
(b)
The Manager covenants with the Agent and the Company that so long as this agreement is in effect, it shall promptly notify Agent
and the Company in the event that any of its executives or any of its key personnel plans to terminate employment with the Manager.
10.
Representations and Covenants of Agent. Agent represents and warrants that it is duly registered as a broker-dealer under
FINRA, the Exchange Act and the applicable statutes and regulations of each state in which the Placement Shares will be offered and sold,
except such states in which Agent is exempt from registration or such registration is not otherwise required. Agent shall continue, for
the term of this Agreement, to be duly registered as a broker-dealer under FINRA, the Exchange Act and the applicable statutes and regulations
of each state in which the Placement Shares will be offered and sold, except in such states in which Agent is exempt from registration
or such registration is not otherwise required, during the terms of this Agreement. Agent will comply with all applicable laws and regulations
in connection with the sale of Placement Shares pursuant to this Agreement and any Terms Agreement, including, but not limited to, Regulation
M under the Exchange Act.
11.
Conditions to Agent’s Obligations. The obligations of Agent hereunder with respect to a Placement in any Agency Transaction,
and the obligations of Agent with respect to a Principal Transaction pursuant to any Terms Agreement and this Agreement, will in each
case be subject to the continuing accuracy and completeness of the representations and warranties made by the Company and the Manager
herein, to the due performance by the Company of its obligations hereunder and under any Terms Agreement, as applicable, to the completion
by Agent of a due diligence review satisfactory to Agent in its reasonable judgment, and to the continuing satisfaction (or waiver by
Agent in its sole discretion) of the following additional conditions:
(a) Registration
Statement Effective. The Registration Statement shall be effective and shall be available for the offer and sale of all
Placement Shares that have been issued or are contemplated to be issued pursuant to all Placement Notices that have been delivered
to Agent by the Company and all Terms Agreements that have been executed by the Parties.
(b)
Prospectus Supplement. The Company shall have filed with the Commission the Prospectus Supplement pursuant to Rule 424(b)
under the Securities Act not later than the Commission’s close of business on the second (2nd) Business Day (as defined
below) following the date of this Agreement.
(c)
No Material Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company of any
request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness
of the Registration Statement, the response to which would require any post-effective amendments or supplements to the Registration Statement
or the Prospectus; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending
the effectiveness of the Registration Statement or other order preventing or suspending the use of the Prospectus or the initiation of
any proceedings for that purpose; (iii) receipt by the Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Placement Shares for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose; or (iv) the occurrence of any event that makes any material statement made in the Registration Statement or the Prospectus
or any material document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires
the making of any changes in the Registration Statement, related Prospectus or documents so that, in the case of the Registration Statement,
it will not contain any materially 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 and, that in the case of the Prospectus, it will not contain any materially
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, in the light of the circumstances under which they were made, not misleading.
(d)
No Amendments or Supplements. No prospectus or amendment or supplement to the Registration Statement, the Prospectus or
any issuer free writing Prospectus shall be filed to which the Agent shall have reasonably objected in writing.
(e)
No Misstatement or Material Omission. Agent shall not have advised the Company that the Registration Statement or Prospectus,
or any amendment or supplement thereto, contains an untrue statement of fact that in Agent’s reasonable opinion is material, or
omits to state a fact that in Agent’s opinion is material and is required to be stated therein or is necessary to make the statements
therein not misleading.
(f) Material
Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with the Commission, there
shall not have been any material adverse change, on a consolidated basis, in the authorized capital stock of the Company or any
Material Adverse Effect, or any development that could reasonably be expected to cause a Material Adverse Effect, or a downgrading
in or withdrawal of the rating assigned to any of the Company’s securities by any rating organization or a public announcement
by any rating organization that it has under surveillance or review its rating of any of the Company’s securities, the effect
of which, in the case of any such action by a rating organization described above, in the reasonable judgment of Agent (without
relieving the Company of any obligation or liability it may otherwise have), is so material as to make it impracticable or
inadvisable to proceed with the offering of the Shares on the terms and in the manner contemplated by this Agreement or any Terms
Agreement, as the case may be, and the Prospectus.
(g)
Legal Opinions. Agent shall have received the opinions and 10b-5 statements required to be delivered pursuant to Section
8(n) on or before the date on which such delivery of such opinions are required pursuant to Section 8(n).
(h)
Comfort Letter. Agent shall have received the Comfort Letter required to be delivered pursuant to Section 8(o) on
or before the date on which such delivery of such Comfort Letter is required pursuant to Section 8(o).
(i)
Representation Certificate. Agent shall have received the certificate required to be delivered pursuant to Section 8(m)
on or before the date on which delivery of such certificate is required pursuant to Section 8(m).
(j)
Certificate of the Principal Financial Officer. Agent shall have received the certificate required to be delivered pursuant
to Section 8(p) on or before the date on which delivery of such certificate is required pursuant to Section 8(p).
(k)
No Suspension. Trading in the Common Stock shall not have been suspended on the Exchange and the Common Stock shall not
have been delisted from the Exchange.
(l)
Other Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 8(m),
the Company shall have furnished to Agent such appropriate further information, certificates and documents as Agent may have reasonably
requested. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof. The Company
shall have furnished Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall have
reasonably requested.
(m)
Securities Act Filings Made. All filings with the Commission required by Rule 424(b) and Rule 433 under the Securities Act
to have been filed prior to the issuance of any Placement Notice hereunder or the Settlement Date with respect to any Principal Transaction
under any Terms Agreement, as applicable shall have been made within the applicable time period prescribed for such filing by Rule 424(b)
(without reliance on Rule 424(b)(8) of the Securities Act) and Rule 433.
(n)
Approval for Listing. The Placement Shares shall have been approved for listing on the Exchange, subject only to notice
of issuance.
(o)
No Termination Event. There shall not have occurred any event that would permit Agent to terminate this Agreement pursuant
to Section 14(a).
(p)
FINRA. FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of
the terms and arrangements relating to the sale of the Shares pursuant to this Agreement and any Terms Agreement, as applicable.
12.
Indemnification and Contribution.
(a)
Indemnification by the Company. The Company agrees to indemnify and hold harmless Agent, its directors, officers, members,
partners, employees and agents and each Agent Affiliate, if any, as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the statements therein not misleading, or arising out of any untrue
statement or alleged untrue statement of a material fact included in any “issuer free writing prospectus” (as defined in Rule
433 under the Securities Act) or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement
of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that any such settlement
is effected with the written consent of the Company, which consent shall not unreasonably be delayed or withheld; and
(iii) against
any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by Agent), reasonably incurred in
investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under (i) or (ii) above;
provided, however,
that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue
statement or omission, or alleged untrue statement or omission, made in reliance upon and in conformity with information relating to Agent
that has been furnished in writing to the Company by Agent expressly for inclusion in any document described in clause (i) of this Section
12(a). This indemnity agreement will be in addition
to any liability that the Company might otherwise have.
(b)
Indemnification by Agent. Agent agrees to indemnify and hold harmless the Company and its directors and each officer of
the Company who signed the Registration Statement, and each person, if any, who (i) controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act or (ii) is controlled by or is under common control with the Company against
any and all losses, liabilities, claims, damages and expenses described in the indemnity contained in Section 12(a), as and when
incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), any “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act)
or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information relating to Agent
that has been furnished to the Company by Agent expressly for inclusion in any document as described in clause (i) of Section 12(a).
(c) Procedure.
Any indemnified party that proposes to assert the right to be indemnified under this Section 12 will, promptly after receipt
of notice of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party
or parties under this Section 12, notify each such indemnifying party of the commencement of such action, enclosing a copy of
all papers served, but the omission so to notify such indemnifying party will not relieve the indemnifying party from (i) any
liability that it might have to any indemnified party otherwise than under this Section 12 and (ii) any liability that it may
have to any indemnified party under the foregoing provision of this Section 12 unless, and only to the extent that, such
omission results in the forfeiture of substantive rights or defenses by the indemnifying party. If any such action is brought
against any indemnified party and it notifies the indemnifying party of its commencement, the indemnifying party will be entitled to
participate in and, to the extent that it elects by delivering written notice to the indemnified party promptly after receiving
notice of the commencement of the action from the indemnified party, jointly with any other indemnifying party similarly notified,
to assume the defense of the action, with counsel reasonably satisfactory to the indemnified party, and after notice from the
indemnifying party to the indemnified party of its election to assume the defense, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as provided below and except for the reasonable costs of investigation
subsequently incurred by the indemnified party in connection with the defense. The indemnified party will have the right to employ
its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such
indemnified party unless (1) the employment of counsel by the indemnified party has been authorized in writing by the indemnifying
party, (2) the indemnified party has reasonably concluded (based on advice of counsel to the indemnified party) that there may be
legal defenses available to it or other indemnified parties that are different from or in addition to those available to the
indemnifying party, (3) a conflict or potential conflict exists (based on advice of counsel to the indemnified party) between the
indemnified party and the indemnifying party (in which case the indemnifying party will not have the right to direct the defense of
such action on behalf of the indemnified party) or (4) the indemnifying party has not in fact employed counsel to assume the defense
of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm admitted to practice
in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will
be reimbursed by the indemnifying party promptly as they are incurred. An indemnifying party will not, in any event, be liable for
any settlement of any action or claim effected without its written consent. No indemnifying party shall, without the prior written
consent of each indemnified party, settle or compromise or consent to the entry of any judgment in any pending or threatened claim,
action or proceeding relating to the matters contemplated by this Section 12 (whether or not any indemnified party is a party
thereto), unless such settlement, compromise or consent (1) includes an unconditional release of each indemnified party from all
liability arising or that may arise out of such claim, action or proceeding and (2) 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.
(d) Contribution.
In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 12 is applicable in accordance with its terms but for any reason is held to be unavailable from
the Company or Agent, the Company and Agent will contribute to the total losses, claims, liabilities, expenses and damages
(including any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of,
any action, suit or proceeding or any claim asserted) to which the Company and Agent may be subject in such proportion as shall be
appropriate to reflect the relative benefits received by the Company on the one hand and Agent on the other. The relative benefits
received by the Company on the one hand and Agent on the other hand shall be deemed to be in the same proportion as the total net
proceeds from the sale of the Shares (net of commissions to Agent but before deducting expenses) received by the Company bear to the
total compensation received by Agent from the sale of Shares on behalf of the Company. If, but only if, the allocation provided by
the foregoing sentence is not permitted by applicable law, the allocation of contribution shall be made in such proportion as is
appropriate to reflect not only the relative benefits referred to in the foregoing sentence but also the relative fault of the
Company, on the one hand, and Agent, on the other, with respect to the statements or omission that resulted in such loss, claim,
liability, expense or damage, or action in respect thereof, as well as any other relevant equitable considerations with respect to
such offering. Such relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company
or Agent, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and Agent agree that it would not be just and equitable if contributions pursuant to this Section
12(d) were to be determined by pro rata allocation or by any other method of allocation that does not take into account the
equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim,
liability, expense, or damage, or action in respect thereof, referred to above in this Section 12(d) shall be deemed to
include, for the purpose of this Section 12(d), any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim to the extent consistent with Section 12(c) hereof.
Notwithstanding the foregoing provisions of this Section 12(d), Agent shall not be required to contribute any amount in
excess of the commissions received by it under this Agreement and no person found guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 12(d), any person who controls a party to this Agreement within
the meaning of the Securities Act, and any officers, directors, members, partners, employees or agents of Agent, will have the same
rights to contribution as that party, and each officer of the Company who signed the Registration Statement will have the same
rights to contribution as the Company, subject in each case to the provisions hereof. Any party entitled to contribution, promptly
after receipt of notice of commencement of any action against such party in respect of which a claim for contribution may be made
under this Section 12(d), will notify any such party or parties from whom contribution may be sought, but the omission to so
notify will not relieve that party or parties from whom contribution may be sought from any other obligation it or they may have
under this Section 12(d) except to the extent that the failure to so notify such other party materially prejudiced the
substantive rights or defenses of the party from whom contribution is sought. Except for a settlement entered into pursuant to the
last sentence of Section 12(c) hereof, no party will be liable for contribution with respect to any action or claim settled
without its written consent if such consent is required pursuant to Section 12(c) hereof.
13.
Representations and Agreements to Survive Delivery. The indemnity and contribution agreements
contained in Section 12 of this Agreement and all representations and warranties of the Company and the Manager herein or in certificates
delivered pursuant hereto shall survive, as of their respective dates, regardless of (i) any investigation made by or on behalf of Agent,
any controlling persons, or the Company (or any of their respective officers, directors or controlling persons), (ii) delivery and acceptance
of the Placement Shares and payment therefor or (iii) any termination of this Agreement.
14.
Termination.
(a) Agent
shall have the right, by giving notice as hereinafter specified in Section 15, at any time to terminate this Agreement and/or
any Terms Agreement (including at any time at or prior to the Settlement Date with respect to the Shares to be sold under such Terms
Agreement) if: (i) any Material Adverse Effect, or any development that has actually occurred and that would reasonably be expected
to result in a Material Adverse Effect, has occurred that, in the reasonable judgment of Agent, may materially impair the ability of
Agent to sell the Shares hereunder or as contemplated in any Terms Agreement or the Prospectus; (ii) there has occurred any (A)
material adverse change in the financial markets in the United States or the international financial markets, (B) outbreak of
hostilities or escalation thereof or other calamity or crisis or (C) change or development involving a prospective change in
national or international political, financial or economic conditions, in each case the effect of which, in the reasonable judgment
of Agent, may materially impair the ability of Agent to sell the Shares hereunder or as contemplated in any Terms Agreement or the
Prospectus; (iii) trading in the Common Stock has been suspended or limited by the Commission or the Exchange, or if trading
generally on the Exchange has been suspended or limited (including automatic halt in trading pursuant to market-decline triggers
other than those in which solely program trading is temporarily halted), or minimum prices for trading have been fixed on the
Exchange; (iv) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market shall
have occurred and be continuing; (v) a major disruption of securities settlements or clearance services in the United States shall
have occurred and be continuing; or (vi) a banking moratorium has been declared by either U.S. Federal or New York authorities. The
Company may not terminate any Terms Agreement without the prior written consent of Agent. Any such termination pursuant to this Section
14(a) shall be without liability of any party to any other party, except that the provisions of Section 8(g) (Expenses), Section
12 (Indemnification), Section 13 (Survival of Representations), Section 14(f), Section 19 (Applicable Law;
Waiver of Jury Trial) and Section 20 (Consent to Jurisdiction) hereof shall remain in full force and effect notwithstanding
such termination.
(b)
The Company shall have the right, by giving five (5) days notice as hereinafter specified in Section 15, to terminate this
Agreement in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any
party to any other party, except that the provisions of Section 8(g), Section 12, Section 13, Section 14(f),
Section 19 and Section 20 hereof shall remain in full force and effect notwithstanding such termination.
(c)
Agent shall have the right, by giving five (5) days notice as hereinafter specified in Section 15, to terminate this Agreement
in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any
other party except that the provisions of Section 8(g), Section 12, Section 13, Section 14(f), Section
19 and Section 20 hereof shall remain in full force and effect notwithstanding such termination.
(d)
Unless earlier terminated pursuant to this Section 14, this Agreement shall automatically terminate upon the issuance and
sale of all of the Shares to or through Agent on the terms and subject to the conditions set forth herein and any Terms Agreement; provided
that the provisions of Section 8(g), Section 12, Section 13, Section 14(f), Section 19 and Section
20 hereof shall remain in full force and effect notwithstanding such termination.
(e) This
Agreement shall remain in full force and effect unless terminated pursuant to Sections 14(a), (b), (c), or
(d) above or otherwise by mutual agreement of the Parties; provided, however, that any such termination by mutual
agreement shall in all cases be deemed to provide that Section 8(g), Section 12, Section 13, Section
14(f), Section 19 and Section 20 shall remain in full force and effect.
(f)
Any termination of this Agreement or any Terms Agreement shall be effective on the date specified in such notice of termination;
provided, however, that such termination shall not be effective until the close of business on the date of receipt of such
notice by Agent or the Company, as the case may be. If such termination, other than a termination of any Terms Agreement pursuant to Section
14(a) above, shall occur prior to the Settlement Date for any sale of Shares, such termination shall not become effective until the
close of business on such Settlement Date and such Shares shall settle in accordance with the provisions of this Agreement (it being hereby
acknowledged and agreed that a termination of any Terms Agreement pursuant to Section 14(a) above shall become effective in accordance
with the first sentence of this Section 14(f) and shall relieve the Parties of their respective obligations under such Terms Agreement,
including, without limitation, with respect to the settlement of the Shares subject to such Terms Agreement).
15.
Notices.
All notices or other communications
required or permitted to be given by any party to any other party pursuant to the terms of this Agreement or any Terms Agreement shall
be in writing, unless otherwise specified, and if sent to Agent, shall be delivered to
[•]
[•]
[•]
Attention: [•]
Email: [•]
with copies (which shall not
constitute notice) to:
[•]
[•]
[•]
Attention: [•]
Email: [•]
and:
DLA Piper LLP (US)
4141 Parklake Avenue,
Suite 300
Raleigh, North Carolina
27612-2350
Attention: Anna
K. Spence, Esq.
Email: anna.spence@us.dlapiper.com
Facsimile: (919)
786-2027
and if to the Company and the
Manager, shall be delivered to:
Chicago Atlantic
Real Estate Finance, Inc.
420 N. Wabash, Suite
500
Chicago, Illinois
60611
Attention: John
Mazarakis
Email: jmazarakis@chicagoatlantic.com
accounting@chicagoatlantic.com
with a copy (which shall not
constitute notice) to:
Eversheds Sutherland
(US) LLP
700 Sixth Street,
NW
Washington, D.C.
20001
Attention: Owen
J. Pinkerton, Esq.
Email: owenpinkerton@eversheds-sutherland.com
Facsimile: (202)
637-3593
Each party may change such
address for notices by sending to the other party to this Agreement written notice of a new address for such purpose. Each such notice
or other communication shall be deemed given (i) when delivered personally or by verifiable facsimile transmission (with an original to
follow) on or before 4:30 p.m., New York City time, on a Business Day or, if such day is not a Business Day, on the next succeeding Business
Day, (ii) on the next Business Day after timely delivery to a nationally-recognized overnight courier and (iii) on the Business Day actually
received if deposited in the U.S. mail (certified or registered mail, return receipt requested, postage prepaid). For purposes of this
Agreement, “Business Day” shall mean any day on which the Exchange and commercial banks in the City of New York
are open for business.
An electronic communication
(“Electronic Notice”) shall be deemed written notice for purposes of this Section 15 if sent to the electronic
mail address specified by the receiving party under separate cover. Electronic Notice shall be deemed received at the time the party sending
Electronic Notice receives confirmation of receipt by the receiving party (other than pursuant to auto-reply). Any party receiving Electronic
Notice may request and shall be entitled to receive the notice on paper, in a nonelectronic form (“Nonelectronic Notice”)
which shall be sent to the requesting party within ten (10) days of receipt of the written request for Nonelectronic Notice.
16. Successors and
Assigns. This Agreement and any Terms Agreement shall inure to the benefit of and be binding upon
the Company, the Manager and Agent and their respective successors and permitted assigns and, as to Sections 5(b) and 10,
the other indemnified parties specified therein. References to any of the Parties contained in this Agreement shall be deemed to
include the successors and permitted assigns of such party. Nothing in this Agreement or any Terms Agreement, express or implied, is
intended to confer upon any other person any rights, remedies, obligations or liabilities under or by reason of this Agreement or
any Terms Agreement, except as expressly provided in this Agreement or any Terms Agreement. Neither the Company, the Manager
or Agent may assign their rights or obligations under this Agreement or any Terms Agreement without the prior written consent of the
other party; provided, however, that Agent may assign its rights and obligations hereunder or under any Terms Agreement to an
affiliate of Agent without obtaining the Company’s consent.
17.
Adjustments for Stock Splits. The Parties acknowledge and agree that all share-related numbers
contained in this Agreement and any Terms Agreement shall be adjusted to take into account any stock split, stock dividend or similar
event effected with respect to the Common Stock.
18.
Entire Agreement; Amendment; Severability. This Agreement (including all schedules and exhibits
attached hereto and Placement Notices and Terms Agreements issued pursuant hereto) constitutes the entire agreement and supersedes all
other prior and contemporaneous agreements and undertakings, both written and oral, among the Parties with regard to the subject matter
hereof. Neither this Agreement nor any term hereof or any Terms Agreement may be amended except pursuant to a written instrument executed
by the Company and Agent. In the event that any one or more of the terms or provisions contained herein, or the application thereof in
any circumstance, is held invalid, illegal or unenforceable as written by a court of competent jurisdiction, then such provision shall
be given full force and effect to the fullest possible extent that it is valid, legal and enforceable, and the remainder of the terms
and provisions herein shall be construed as if such invalid, illegal or unenforceable term or provision was not contained herein, but
only to the extent that giving effect to such term or provision and the remainder of the terms and provisions hereof shall be in accordance
with the intent of the Parties as reflected in this Agreement.
19.
GOVERNING LAW AND TIME; WAIVER OF JURY TRIAL. THIS AGREEMENT AND ANY TERMS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME. THE COMPANY, THE MANAGER AND AGENT EACH HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY TERMS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
20. CONSENT TO JURISDICTION.
EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW YORK,
BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR ANY TERMS AGREEMENT OR IN CONNECTION WITH ANY TRANSACTION CONTEMPLATED
HEREBY OR THEREBY, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT
PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR
THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS
AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF (CERTIFIED OR REGISTERED MAIL,
RETURN RECEIPT REQUESTED) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND ANY TERMS AGREEMENT AND AGREES
THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED
TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW.
21.
Absence of Fiduciary Relationship. The Company and the Manager acknowledge and agree that:
(a)
Agent is acting solely as agent in connection with the sale of the Shares in an Agency Transaction contemplated by this Agreement
and the process leading to such transactions, and no fiduciary or advisory relationship between the Company, the Manager or any of their
respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and Agent,
on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement or any Terms Agreement,
irrespective of whether Agent has advised or is advising the Company and/or the Manager on other matters, and Agent has no obligation
to the Company or the Manager with respect to the transactions contemplated by this Agreement or any Terms Agreement, except the obligations
expressly set forth in this Agreement and any Terms Agreement;
(b)
the Company and the Manager are capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions
of the transactions contemplated by this Agreement;
(c)
Agent has not provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated by this Agreement
or any Terms Agreement, and the Company and the Manager have consulted their own legal, accounting, regulatory and tax advisors to the
extent it has deemed appropriate;
(d)
the Company and the Manager are aware that Agent and its affiliates are engaged in a broad range of transactions which may involve
interests that differ from those of the Company and the Manager, and Agent has no obligation to disclose such interests and transactions
to the Company or the Manager by virtue of any fiduciary, advisory or agency relationship or otherwise; and
(e)
the Company and the Manager waive, to the fullest extent permitted by law, any claims they may have against Agent for breach of
fiduciary duty or alleged breach of fiduciary duty and agrees that Agent shall have no liability (whether direct or indirect, in contract,
tort or otherwise) to the Company and the Manager 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 Manager, including stockholders, partners, employees or creditors of the Company
or the Manager.
22.
Effect of Headings; Knowledge of the Company. The section and Exhibit headings herein are
for convenience only and shall not affect the construction hereof. All references in this Agreement and any Terms Agreement to the “knowledge
of the Company” or the “Company’s knowledge” or similar qualifiers shall mean the actual knowledge of the directors
and officers of the Company, after due inquiry.
23.
Recognition of the U.S. Special Resolution Regimes.
In
the event that Agent is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from Agent
of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would
be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws
of the United States or a state of the United States.
In
the event that Agent is a Covered Entity or a BHC Act Affiliate (as defined below) of Agent becomes subject to a proceeding under a U.S.
Special Resolution Regime, Default Rights under this Agreement that may be exercised against Agent are permitted to be exercised to no
greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by
the laws of the United States or a state of the United States.
For purposes of this Section
23, a “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in
accordance with, 12 U.S.C. § 1841(k). “Covered Entity” means any of the following: (i) a “covered entity”
as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that
term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is
defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right” has the meaning assigned to that
term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “U.S. Special
Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title
II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
24.
Counterparts. This Agreement and any Terms Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed
Agreement or Terms Agreement by one party to the other may be made by facsimile or electronic transmission.
[Signature
Page Follows]
If the foregoing correctly
sets forth the understanding between the Company, the Manager and Agent, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between the Company, the Manager and Agent.
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Very truly yours, |
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CHICAGO ATLANTIC REAL ESTATE FINANCE, INC. |
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CHICAGO ATLANTIC REIT MANAGER, LLC
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ACCEPTED as of the date first-above written: |
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SCHEDULE 1
FORM OF PLACEMENT NOTICE
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| Subject: |
Placement Notice |
Gentlemen:
Pursuant to the terms and
subject to the conditions contained in the Sales Agreement between Chicago Atlantic Real Estate Finance, Inc. (the “Company”),
and Chicago Atlantic REIT Manager, LLC, a Delaware limited liability company (the “Manager”) and [ ] (“Agent”)
dated [_______________], 2023 (the “Agreement”), I hereby request on behalf of the Company that Agent sell up
to [[___] shares] [$[___] worth of shares] of the Company’s common stock, par value $0.01 per share, subject to the Maximum Amount
(the “Shares”), at market prices not lower than $[____] per share, during the time period beginning [month,
day, time] and ending [month, day, time].
[The company may include such
other sales parameters as it deems appropriate, subject to the terms and conditions of the Agreement.]
The Company and the Manager
represent and warrant that each representation, warranty, covenant and other agreement of the Company and the Manager contained in the
Agreement is true and correct on the date hereof, and that the Registration Statement and the Prospectus, including the documents incorporated
by reference therein, and any applicable issuer free writing prospectus, as of the date hereof, do not contain an untrue statement of
a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under
which they were made, not misleading.
Terms used herein and not
defined herein have the meanings ascribed to them in the Agreement.
