Form 8-K
8-K — ADAMAS TRUST, INC.
Accession: 0001104659-26-073212
Filed: 2026-06-12
Period: 2026-06-12
CIK: 0001273685
SIC: 6798 (REAL ESTATE INVESTMENT TRUSTS)
Item: Other Events
Item: Financial Statements and Exhibits
Documents
8-K — tm2617546d2_8k.htm (Primary)
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EX-5.1 — EXHIBIT 5.1 (tm2617546d2_ex5-1.htm)
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event
reported): June 12, 2026
ADAMAS TRUST, INC.
(Exact name of registrant as specified in its
charter)
Maryland
001-32216
47-0934168
(State or other jurisdiction of
incorporation)
(Commission File Number)
(IRS Employer Identification No.)
90 Park Avenue
New York, New York 10016
(Address and zip code of
principal executive
offices)
Registrant’s
telephone number, including area code: (212) 792-0107
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section
12(b) of the Act:
Title of Each Class
Trading
Symbol(s)
Name of Each Exchange on
Which Registered
Common Stock, par value $0.01 per share
ADAM
NASDAQ Stock Market
8.000%
Series D Fixed-to-Floating Rate Cumulative Redeemable Preferred Stock, par value $0.01 per share, $25.00 Liquidation Preference
ADAMN
NASDAQ Stock Market
7.875%
Series E Fixed-to-Floating Rate Cumulative Redeemable Preferred Stock, par
value $0.01 per share, $25.00 Liquidation Preference
ADAMM
NASDAQ Stock Market
6.875% Series F Fixed-to-Floating Rate Cumulative Redeemable Preferred Stock, par value $0.01 per share, $25.00 Liquidation Preference
ADAML
NASDAQ Stock Market
7.000%
Series G Cumulative Redeemable Preferred Stock, par value $0.01 per share, $25.00 Liquidation Preference
ADAMZ
NASDAQ Stock Market
9.125% Senior Notes due 2029
ADAMI
NASDAQ Stock Market
9.125% Senior Notes due 2030
ADAMG
NASDAQ Stock Market
9.875% Senior Notes due 2030
ADAMH
NASDAQ Stock Market
9.250% Senior Notes due 2031
ADAMO
NASDAQ Stock Market
Indicate by check mark whether the
registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or
Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). Emerging Growth Company ¨
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 8.01. Other Events.
Common Stock ATM Program
On June 12, 2026, Adamas
Trust, Inc. (the “Company”) entered into an equity distribution agreement (the “Equity Distribution Agreement”)
with JonesTrading Institutional Services LLC, BTIG, LLC and B. Riley Securities, Inc., as sales agents (the “Agents”),
pursuant to which the Company may offer and sell, from time to time, shares of the Company’s common stock, par value $0.01 per share,
having a maximum aggregate offering price of up to $250,000,000 (the “Offered Stock”).
Pursuant to the Equity Distribution
Agreement, the Offered Stock may be offered and sold from time to time through the Agents in transactions that are deemed to be “at-the-market”
offerings as defined in Rule 415 under the Securities Act of 1933, as amended, including, without limitation, in ordinary brokers'
transactions, on or through the Nasdaq Global Select Market, the existing trading market for the Offered Stock, or any other market venue
where the securities may be traded, to or through a market maker other than on an exchange, in privately negotiated transactions (including
block trades), or through a combination of any such methods of sale, or, if specified in a written notice from the Company, by any other
method permitted by law. Under the terms of the Equity Distribution Agreement, the Company may also sell the Offered Stock to an Agent
as principal for its own account at a price agreed upon at the time of sale. If the Company sells shares of the Offered Stock to an Agent
as principal, the Company will enter into a separate written agreement with such Agent. Under the Equity Distribution Agreement, each
Agent will be entitled to compensation of up to 2.0% of the gross proceeds from the sale of shares of the Offered Stock sold through such
Agent pursuant to the terms of the Equity Distribution Agreement. The Company has no obligation to sell, and the Agents have no obligation
to buy or sell, any of the Offered Stock under the Equity Distribution Agreement and the Company or the applicable Agent may at any time
suspend solicitations and offers under the Equity Distribution Agreement.
The Company expects to use
the net proceeds from the sales of the Offered Stock for general corporate purposes, which may include, among other things, acquiring
its targeted assets and various other types of mortgage-, residential housing- and credit-related assets that the Company may target from
time to time, and general working capital purposes.
The Offered Stock will be
issued pursuant to the Company’s Registration Statement on Form S-3 (File No. 333-290073). The Company filed a prospectus
supplement, dated June 12, 2026, to the prospectus, dated September 16, 2025, with the Securities and Exchange Commission in
connection with the offer and sale of the Offered Stock.
The Equity Distribution Agreement
is attached hereto as Exhibit 1.1 and incorporated herein by reference. The foregoing description of the Equity Distribution Agreement
is not complete and is qualified in its entirety by reference to the Equity Distribution Agreement filed herewith as an exhibit to this
Current Report on Form 8-K.
In connection with the filing
of the Equity Distribution Agreement, the Company is filing as Exhibit 5.1 to this Current Report on Form 8-K the opinion of
its Maryland counsel, Vinson & Elkins L.L.P.
This Current Report on Form 8-K
shall not constitute an offer to sell or a solicitation of an offer to buy any securities, nor shall there be any sale of securities in
any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under
the securities laws of any such state or other jurisdiction.
Item 9.01. Financial Statements and Exhibits.
Exhibit
Description
1.1†
Equity Distribution Agreement, dated June 12, 2026, by and between the Company and JonesTrading Institutional Services LLC, BTIG, LLC and B. Riley Securities, Inc.
5.1†
Opinion of Vinson & Elkins L.L.P. regarding legality of the Offered Stock.
23.1
Consent of Vinson & Elkins L.L.P. (included in Exhibit 5.1 hereto).
2
Exhibit
Description
104
Cover Page Interactive Data File (formatted as Inline XBRL).
† Filed
herewith.
3
SIGNATURE
Pursuant to the requirements
of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned
thereunto duly authorized.
ADAMAS TRUST, INC.
(Registrant)
Date: June 12, 2026
By:
/s/ Kristine R. Nario-Eng
Kristine R. Nario-Eng
Chief Financial Officer
4
EX-1.1 — EXHIBIT 1.1
EX-1.1
Filename: tm2617546d2_ex1-1.htm · Sequence: 2
Exhibit 1.1
Adamas Trust, Inc.
Up to $250,000,000 Shares of Common Stock
EQUITY DISTRIBUTION AGREEMENT
Dated: June 12, 2026
TABLE OF CONTENTS
Section 1.
Description of Securities
1
Section 2.
Placements
3
Section 3.
Sale of Placement Securities by the Placement Agents
4
Section 4.
Suspension of Sales
5
Section 5.
Representations and Warranties
5
Section 6.
Sale and Delivery to the Placement Agents; Settlement
23
Section 7.
Covenants of the Company
24
Section 8.
Payment of Expenses
31
Section 9.
Conditions of the Placement Agent’s Obligations
31
Section 10.
Indemnity and Contribution by the Company and the Placement
Agents
34
Section 11.
Representations, Warranties and Agreements to Survive
Delivery
36
Section 12.
Termination of Agreement
36
Section 13.
Notices
38
Section 14.
Parties
38
Section 15.
Adjustments for Stock Splits
38
Section 16.
Governing Law and Time
38
Section 17.
Effect of Headings
38
Section 18.
Permitted Free Writing Prospectuses
39
Section 19.
Absence of Fiduciary Relationship
39
Section 20.
Recognition of the U.S. Special Resolution Regimes
40
Section 21.
Termination of Prior Agreement
41
Section 22.
Counterparts
41
EXHIBITS
Exhibit A
–
Form of
Placement Notice
Exhibit B
–
Authorized
Individuals for Placement Notices and Acceptances
Exhibit C
–
Compensation
Exhibit D
–
Form of
Corporate Opinion of Company Corporate Counsel
Exhibit E
–
Form of
Tax Opinion of Company Special Counsel
Exhibit F
–
Officer’s
Certificate
Exhibit G
–
Certain Subsidiaries
Exhibit H
–
Issuer Free
Writing Prospectus
Adamas Trust, Inc.
Up to $250,000,000
Shares of Common Stock
EQUITY DISTRIBUTION AGREEMENT
June 12, 2026
JonesTrading Institutional Services LLC
325 Hudson Street, 6th Floor
New York, New York 10013
BTIG, LLC
65 East 55th Street
New York, New York 10022
B. Riley Securities, Inc.
299 Park Avenue, 21st Floor
New York, New York 10171
Ladies and Gentlemen:
Adamas
Trust, Inc., a Maryland corporation (the “Company”), confirms its agreement (this “Agreement”)
with JonesTrading Institutional Services LLC, BTIG, LLC and B. Riley Securities, Inc. (each, a “Placement Agent”
and collectively, the “Placement Agents”), as follows:
Section 1. Description
of Securities.
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 through the Placement Agents, acting as agents and/or principals, shares of the Company’s common stock, par
value $0.01 per share (the “Common Stock”), having a maximum aggregate sales price of up to $250,000,000 (the
“Securities”); provided, however, that in no event shall the Company issue or sell through the Placement Agents such
number or dollar amount of Securities that would (i) exceed the number or dollar amount of shares of Common Stock registered on
an effective registration statement pursuant to which the offering is being made, (ii) exceed the number of authorized but unissued
shares of Common Stock under the Company’s organizational documents, (iii) exceed the number or dollar amount of shares of
Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (iv) exceed
the number or dollar amount of shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser
of (i), (ii), (iii), and (iv), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, except
as set forth in a Placement Notice (as defined below), the parties hereto agree that compliance with the limitations set forth in this
Section 1 on the number of the Securities issued and sold under this Agreement shall be the sole responsibility of the Company,
and the Placement Agents shall have no obligation in connection with such compliance. The issuance and sale of the Securities through
the Placement Agents will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective
by the Securities and Exchange Commission (the “Commission”), although nothing in this Agreement shall be construed
as requiring the Company to use the Registration Statement to offer, sell or issue the Securities.
The
Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the “Securities Act”), with the Commission a shelf registration statement on Form S-3 (File
No. 333-290073) (the “Shelf Registration Statement”), including a base prospectus, relating to, among other securities
of the Company, the Common Stock, including the Securities to be issued from time to time by the Company, 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 thereunder (collectively, the “Exchange Act”). The Shelf Registration Statement
became effective on September 16, 2025. The Company has prepared a prospectus supplement specifically relating to the Securities
(the “Prospectus Supplement”) to the base prospectus included as part of the Shelf Registration Statement. The Company
will furnish to each Placement Agent, for use by each Placement Agent, copies of the base prospectus included as part of the Shelf Registration
Statement, as supplemented by the Prospectus Supplement, relating to the Securities. Except where the context otherwise requires, the
Shelf Registration Statement, as amended when it became effective, including all documents filed as part thereof or incorporated by reference
therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to
Rule 424(b) under the Securities Act or deemed to be a part of such registration statement pursuant to Rule 430B or 462(b) of
the Securities Act, is herein called the “Registration Statement.” The base prospectus, including all documents incorporated
therein by reference, included in the Registration Statement, as it may be supplemented by the Prospectus Supplement, in the form in
which such prospectus and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under
the Securities Act is herein called the “Prospectus.” Any reference herein to the Registration Statement, any Rule 462(b) Registration
Statement (as defined below), 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. Any reference herein to financial statements and
schedules and other information that is “contained,” “included” or “stated” in the Registration Statement
or the Prospectus (and all other references of like import) shall be deemed to mean and include all such financial statements and schedules
and other information that is incorporated by reference in the Registration Statement or the Prospectus, as the case may be. Any reference
herein to the Registration Statement, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include
the copy filed with the Commission pursuant to the Commission’s Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”);
all references in this Agreement to any Issuer Free Writing Prospectus (defined below) (other than any Issuer Free Writing Prospectuses
that, pursuant to Rule 433 under the Securities Act, are not required to be filed with the Commission) shall be deemed to include
the copy thereof filed with the Commission pursuant to EDGAR.
2
Section 2. Placements.
Each
time that the Company wishes to issue and sell the Securities hereunder (each, a “Placement”), it will notify
the applicable Placement Agent selected by the Company by email notice (or other method mutually agreed to in writing by the parties)
containing the parameters in accordance with which it desires the Securities to be sold, which shall at a minimum include the maximum
number of Securities to be offered, sold and issued (the “Placement Securities”), the time period during which sales
are requested to be made, any limitation on the number of Securities that may be sold in any one day, any minimum price below which sales
may not be made, and the maximum prices above which sales may not be made (a “Placement Notice”), a form of which
containing such parameters necessary is attached hereto as Exhibit A. The Placement Notice shall originate from any of the
individuals from the Company set forth on Exhibit B (with a copy to each of the other individuals from the Company listed
on such exhibit), and shall be addressed to the individuals from the applicable Placement Agent set forth on Exhibit B, as
such Exhibit B may be amended from time to time. If the applicable Placement Agent wishes to accept such proposed terms included
in the Placement Notice (which it may decline to do so for any reason in its sole discretion) or, following discussion with the Company,
wishes to accept amended terms, such Placement Agent will, prior to 8:30 a.m., Eastern Time, on the Business Day (as defined below) following
the Business Day on which such Placement Notice is delivered to such Placement Agent, issue to the Company a notice by email (or other
method mutually agreed to in writing by the parties) addressed to all of the individuals from the Company set forth on Exhibit B
setting forth such acceptance or, in the alternative, such other terms that such Placement Agent is willing to accept. Where the terms
provided in the Placement Notice are amended as provided for in the immediately preceding sentence, such terms will not be binding on
the Company or such Placement Agent until the Company delivers to such Placement Agent an acceptance by email (or other method mutually
agreed to in writing by the parties) of all of the terms of such Placement Notice, as amended (the “Acceptance”),
which email shall be addressed to all of the individuals from the Company and such Placement Agent set forth on Exhibit B.
The Placement Notice (as amended by the corresponding Acceptance, if applicable) shall be effective upon receipt by the Company of the
applicable Placement Agent’s acceptance of the terms of the Placement Notice or upon receipt by such Placement Agent of the Company’s
Acceptance, as the case may be, unless and until (i) the entire amount of the Placement Securities have been sold, (ii) the
Company terminates the Placement Notice in writing (including via email) at any time and in its sole discretion, which shall be addressed
to all of the individuals from the applicable Placement Agent on Exhibit B, (iii) the Company issues a subsequent Placement
Notice with parameters expressly superseding those on the earlier dated Placement Notice, (iv) this Agreement has been terminated
under the provisions of Section 12 or (v) either party shall have suspended the sale of the Placement Securities in
accordance with Section 4 below. The amount of any discount, commission or other compensation to be paid by the Company to
the applicable Placement Agent in connection with the sale of the Placement Securities shall be calculated in accordance with the terms
set forth in Exhibit C. It is expressly acknowledged and agreed that neither the Company nor any Placement Agent will have
any obligation whatsoever with respect to a Placement or any Placement Securities unless and until the Company delivers a Placement Notice
to such Placement Agent and either (i) such Placement Agent accepts the terms of such Placement Notice or (ii) where the terms
of such Placement Notice are amended, the Company accepts such amended terms by means of an Acceptance pursuant to the terms set forth
above, and then only upon the terms specified in the Placement Notice (as amended by the corresponding Acceptance, if applicable) and
herein. In the event of a conflict between the terms of this Agreement and the terms of a Placement Notice (as amended by the corresponding
Acceptance, if applicable), the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable) will control.
The term “Business Day” means each Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on which banking
institutions in New York are generally authorized or obligated by law or executive order to close.
3
Notwithstanding
any other provision of this Agreement and except as may otherwise be specifically agreed by the Placement Agents and the Company with
respect to clause (i) below, the Company shall not offer, sell or deliver, or request the offer or sale, of any Placement Securities
pursuant to this Agreement and, by notice to the Placement Agents given either by email or telephone (confirmed promptly by email), shall
cancel any instructions for the offer or sale of any Placement Securities, and the Placement Agents shall not be obligated to offer or
sell any Placement Securities, (i) during any period in which the Company is in possession of material non-public information or
(ii) at any time, from and including the date on which the Company issues a press release containing, or shall otherwise publicly
announce, its earnings, revenues or other results of operations (an “Earnings Announcement”) through and including
the time that is 24 hours after the time that the Company files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K
that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such Earnings
Announcement.
The Company further agrees that any offer to sell,
any solicitation of an offer to buy, or any sales of Securities by the Company shall only be effected by or through only one of the Placement
Agents during any Active Placement Notice Period (as defined below), and the Company shall in no event request that more than one Placement
Agent sell Securities during the same Active Placement Notice Period unless specifically agreed to by both such Placement Agents. As
used herein, “Active Placement Notice Period” means the period of time commencing upon the earliest time specified
in connection with a Placement Notice and ending upon the earlier of (i) the latest time specified in connection with such Placement
Notice and (ii) the time that the sale of the Placement Securities described in such Placement Notice has been declined, suspended,
or otherwise terminated in accordance with the terms of this Agreement.
Section 3. Sale
of Placement Securities by the Placement Agents.
Subject
to the provisions of Section 6(a), the applicable Placement Agent, for the period specified in the Placement Notice, 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 Stock Market LLC (“NASDAQ”) to sell the Placement
Securities up to the amount specified, and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding
Acceptance, if applicable). The applicable Placement Agent will provide written confirmation to the Company no later than the opening
of the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Placement Securities hereunder
setting forth the number of Placement Securities sold on such day, the compensation payable by the Company to the Placement Agents pursuant
to Section 2 with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization
of the deductions made by such Placement Agent (as set forth in Section 6(b)) from the gross proceeds that it receives from
such sales. Subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), the applicable
Placement Agent may sell Placement Securities by any method permitted by law deemed to be an “at-the-market” offering as
defined in Rule 415 of the Securities Act, including, without limitation, in ordinary brokers’ transactions, on or through
NASDAQ or any other market venue where the Securities may be traded, to or through a market maker other than on an exchange, in privately
negotiated transactions (including block trades), or through a combination of any such methods of sale, or, if specified in a Placement
Notice (as amended by the corresponding Acceptance, if applicable), the applicable Placement Agent may also sell Placement Securities
by any other method permitted by law. The Securities may be sold at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at negotiated prices. For the purposes hereof, “Trading Day” means any day on which
shares of Common Stock are purchased and sold on the principal market on which the Common Stock is listed or quoted and during which
there has been no market disruption of, unscheduled closing of or suspension of trading on such principal market.
4
Section 4. Suspension
of Sales.
The Company or the Placement Agents may, upon
notice to the other party in writing (including by email correspondence to each of the individuals of the other party set forth on Exhibit B,
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 email correspondence to each of the individuals of the other party set forth on
Exhibit B), suspend any sale of Placement Securities; provided, however, that such suspension shall not affect or impair
either party’s obligations with respect to any Placement Securities 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 Exhibit B hereto, as such Exhibit may be amended from time to time.
Section 5. Representations
and Warranties.
(a) Representations
and Warranties by the Company. The Company represents and warrants to, and agrees with, the Placement Agents as of the date hereof
and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(o) of
this Agreement and as of the time of each sale of any Securities pursuant to this Agreement (the “Applicable Time”),
as follows:
(1) Compliance
with Registration Requirements. The Securities have been duly registered under the Securities Act pursuant to the Registration Statement.
The Registration Statement has become effective under the Securities Act, or, with respect to any registration statement to be filed
to register the offer and sale of the Securities pursuant to Rule 462(b) under the Securities Act, including the documents
incorporated by reference therein and the Rule 430A Information, (a “Rule 462(b) Registration Statement”),
will be filed with the Commission and become effective under the Securities Act no later than 10:00 p.m., Eastern Time, on the date of
determination of the public offering price for the Securities, and no stop order preventing or suspending the use of any base prospectus,
the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus (as defined below), or the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement and no proceedings for such purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated by the Commission, and any request on the part of the Commission for additional
information with respect to such Registration Statement has been complied with.
5
At the respective times each of the Registration
Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto became or becomes effective and
as of the date hereof, the Registration Statement, any Rule 462(b) Registration Statement and any amendments and supplements
thereto complied and will comply in all material respects with the requirements of the Securities Act. The conditions for the use of
Form S-3, as set forth in the General Instructions thereto, have been complied with and the Registration Statement meets, and the
offering and sale of the Securities as contemplated hereby complies with, the requirements of Rule 415(a)(1)(x) under the Securities
Act (including without limitation, Rule 415(a)(5)). The Registration Statement, as of the date hereof and each effective date with
respect thereto, 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. Neither the Prospectus nor any amendments or supplements thereto,
as of their respective dates, and at each Applicable Time, each Settlement Date (as defined below) and each Representation Date, as the
case may be, included 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 Prospectus,
at the time the Prospectus was issued and at each Settlement Date, complied and will comply in all material respects with the Securities
Act.
The representations and warranties set forth in
the immediately preceding paragraph shall not apply to statements in or omissions from the Registration Statement or the Prospectus,
as amended or supplemented, made in reliance upon and in conformity with information furnished to the Company in writing by the Placement
Agents expressly for use therein.
The
copies of the Registration Statement, each Issuer Free Writing Prospectus (as defined below) that is required to be filed with the Commission
pursuant to Rule 433 under the Securities Act and the Prospectus and any amendments or supplements thereto delivered and to be delivered
to the Placement Agents (electronically or otherwise) in connection with the offering of the Securities were and will be identical to
the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T. “Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in
Rule 433 under the Securities Act, relating to the Securities that (i) is required to be filed with the Commission by the Company,
(ii) is a “road show” that is a “written communication” within the meaning of Rule 433(d)(8)(i) under
the Securities Act whether or not required to be filed with the Commission, or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) under
the Securities Act because it contains a description of the Securities or of the offering that does not reflect the final terms, and
all free writing prospectuses that are listed in Exhibit H hereto, in each case, in the form furnished (electronically or
otherwise) to the Placement Agents for use in connection with the offering of the Securities.
6
Each Issuer Free Writing Prospectus relating to
the Securities, if any, as of its issue date and as of each Applicable Time and Settlement Date, 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; each Issuer Free Writing Prospectus,
as supplemented by and taken together with the Prospectus, as of the Applicable Time and Settlement Date, will not include an untrue
statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances,
prevailing at that time, not misleading. The foregoing sentence does not apply to statements in or omissions from any issuer free writing
prospectus based upon and in conformity with written information furnished to the Company by the Placement Agents specifically for use
therein.
Each document incorporated or deemed to be incorporated
by reference in the Registration Statement and the Prospectus, at the time they were or hereafter are filed with the Commission, complied
and will comply when filed in all material respects with the requirements of the Exchange Act.
(2) Company
Capitalization. The Company has an authorized capitalization as set forth in the Prospectus; the outstanding shares of capital stock
of the Company have been duly and validly authorized and issued and are fully paid and non-assessable. All of the outstanding limited
liability company, partnership or other equity interests of each Subsidiary of the Company have been duly authorized and validly issued
and are fully paid and are owned directly or indirectly by the Company, free and clear of any claim, lien, encumbrance or security interest.
(3) Disclosure
Regarding Outstanding Securities. Except as disclosed in the Prospectus, there are no outstanding (A) securities or obligations
of the Company or the subsidiaries of the Company required to be set forth in Exhibit 21.1 to the Company’s Form 10-K
filed for its most recently completed fiscal year, (each a “Subsidiary,” and together, the “Subsidiaries”)
convertible into or exchangeable for any capital stock of or partnership interests, membership interests or other equity interests, as
the case may be, in the Company or any such Subsidiary, (B) preemptive rights, rights of first refusal, warrants, options or other
rights to subscribe for or purchase from the Company or any Subsidiary any such capital stock or any such convertible or exchangeable
securities or obligations or any restriction upon the voting or transfer of, any shares of capital stock pursuant to the Company’s
charter, bylaws or other governing documents or any agreement or other instrument to which the Company or any of the Subsidiaries is
a party or by which any of them may be bound, or (C) obligations of the Company or any Subsidiary to issue any securities or obligations,
any such convertible or exchangeable securities or obligations, or any such warrants, rights or options the existence of which, in each
case (A), (B) and (C), is required to be disclosed in the Registration Statement and the Prospectus and are not so disclosed. None
of the outstanding shares of the Company’s capital stock were issued in violation of any preemptive rights, rights of first refusal
or other similar rights to subscribe for or purchase securities of the Company.
7
(4) Good
Standing. Each of the Company and the Subsidiaries has been duly incorporated or organized and is validly existing as a corporation,
general or limited partnership, limited liability company or statutory trust, as the case may be, except to the extent, in the case of
the Subsidiaries, that the failure to be so organized in its respective jurisdiction of incorporation or organization would not, individually
or in the aggregate, reasonably be expected to have any material adverse effect on, or any material adverse change with respect to, the
assets, business operation, earnings, prospects, properties or financial condition of the Company and its Subsidiaries taken as a whole
(a “Material Adverse Effect” or “Material Adverse Change”), and is in good standing under the laws
of its respective jurisdiction of incorporation or organization except to the extent that the failure to be so qualified or in good standing
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(5) Corporate
Power. Each of the Company and the Subsidiaries has the corporate, partnership or limited liability company power, as the case may
be, and authority, to own, lease or operate its respective properties and conduct its respective businesses, as presently conducted and
as described in each of the Registration Statement and the Prospectus (as applicable) except to the extent that the failure to have such
power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; the Company
has all necessary corporate power to execute and deliver this Agreement and to consummate the transactions described in this Agreement.
(6) Foreign
Qualifications. The Company and the Subsidiaries are duly qualified or licensed and in good standing in each jurisdiction where such
qualification or license is required except where the failure, individually or in the aggregate, to be so qualified or licensed would
not reasonably be expected to have a Material Adverse Effect.
(7) No
Prohibition on Dividends Payable by the Subsidiaries. Except as disclosed in the Prospectus, no Subsidiary (excluding, for purposes
of this representation, each subsidiary set forth in Exhibit G hereto and any subsidiaries formed or organized in the future
for purposes of facilitating a securitization by the Company) is contractually prohibited or restricted, directly or indirectly, from
paying dividends or from making any other distribution with respect to the outstanding membership interests of such Subsidiary or from
repaying to the Company or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances
to such Subsidiary from the Company or another subsidiary of the Company, or from transferring such Subsidiary’s property or assets
to the Company or another subsidiary of the Company except for any such prohibitions and restrictions that would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect or to the extent that any such restriction would currently
materially limit the Company’s ability to pay dividends or that would be reasonably likely to materially limit the future payment
of dividends on capital stock of the Company.
8
(8) Absence
of Defaults. Except as disclosed in the Prospectus, neither the Company nor any Subsidiary is in breach of or in default under (nor
has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), its respective organizational
documents, or in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture,
mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party
or by which any of them or their respective properties or assets is bound, except for such breaches or defaults which would not reasonably
be expected to have a Material Adverse Effect.
(9) Absence
of Conflicts. The execution, delivery and performance of this Agreement, the issuance, sale and delivery of the Securities by the
Company and the consummation of the transactions contemplated herein will not (A) conflict with, or result in any breach of, or
constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default
under): (1) any provision of the organizational documents of the Company, (2) any provision of any license, indenture, mortgage,
deed of trust, bank, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by
which any of them or their respective assets or properties may be bound or affected, or (3) under any federal, state, local or foreign
law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of clauses
(2) or (3), for such conflicts, breaches or defaults which have been validly waived or would not reasonably be expected to have
a Material Adverse Effect; or (B) result in the creation or imposition of any material lien, charge, claim or encumbrance upon any
property or asset of the Company or any Subsidiary.
(10) Authorization
of Agreement. This Agreement has been duly authorized, executed and delivered by the Company and is a legal, valid and binding agreement
of the Company enforceable against the Company in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent
that the indemnification and contribution provisions of Section 10 hereof may be limited by federal or state securities laws
and public policy considerations in respect thereof.
(11) Absence
of Further Requirements. No approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental
or regulatory commission, board, body, authority or agency is required in connection with the Company’s execution, delivery and
performance of this Agreement, the consummation of the transactions contemplated herein by the Company, including the Company’s
issuance, sale and delivery of the Securities, other than (A) such as have been obtained, or will have been obtained at the Settlement
Date (as defined below), as the case may be, under the Securities Act, the Exchange Act or state securities laws or as may be required
by NASDAQ or the Financial Industry Regulatory Authority (“FINRA”) or (B) any such approvals, authorizations,
consents, orders, or filings that if not obtained or made, would not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect or which would not reasonably be expected to have a material adverse effect on the Company’s ability
to perform its obligations under this Agreement.
9
(12) Possession
of Licenses and Permits. To the Company’s knowledge, each of the Company and the 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 authorizations, consents and approvals from other persons, required in order to conduct its respective
businesses as described in the Prospectus, except to the extent that any failure to have any such licenses, authorizations, consents
or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is in violation
of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization,
consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable
to the Company or any of the Subsidiaries the effect of which would reasonably be expected to result in a Material Adverse Change.
(13) Permitted
Free Writing Prospectuses. The Company has not prepared, used or referred to, and will not, (i) without the prior consent of
the Placement Agents or (ii) upon advice of counsel that failure to do so could result in a violation of applicable securities laws,
prepare, use or refer to, any Issuer Free Writing Prospectus in connection with any Placement.
(14) Company
Not an Ineligible Issuer. (i) At the earliest time after the filing of the Registration Statement that the Company or another
offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Securities Act) of the Securities
and (ii) as of the date hereof, the Company was not and is not an Ineligible Issuer (as defined in Rule 405 of the Securities
Act), without taking account of any determination by the Commission pursuant to Rule 405 of the Securities Act that it is not necessary
that the Company be considered an Ineligible Issuer.
10
(15) Filing
of Registration Statement. The Company filed the Registration Statement with the Commission before using any Issuer Free Writing
Prospectus.
(16) Absence
of Proceedings. There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or, to the knowledge of the Company, threatened, against or affecting the Company or any Subsidiary,
which is required to be disclosed in the Registration Statement or the Prospectus (other than as disclosed therein), or which would reasonably
be expected to result in a Material Adverse Effect, or which would reasonably be expected to materially and adversely affect the consummation
of the transactions contemplated in this Agreement or the performance by the Company of its obligations hereunder; 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 property
or assets is the subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the
business, would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. Neither the Company
nor any Subsidiary is in violation of any law, statute, ordinance, rule or regulation or any court decree, ruling or order to which
it or any of its assets may be subject which violation would reasonably be expected to have a Material Adverse Effect.
(17) Financial
Statements. The consolidated financial statements of the Company and its subsidiaries and schedules (and related notes) included
or incorporated by reference in the Prospectus present fairly the consolidated financial conditions of the Company and its subsidiaries,
as of the dates indicated and consolidated results of operations and changes in financial condition and cash flows for the periods specified;
such financial statements have been prepared in conformity with generally accepted accounting principles as applied in the United States
and on a consistent basis during the periods involved and in accordance with Regulation S-X promulgated by the Commission; the financial
statement schedules included or incorporated by reference in the Prospectus have been compiled on a basis consistent with the financial
statements; no pro forma financial information, financial statements or supporting schedules other than the financial statements and
schedules included in the Prospectus are required to be included in the Registration Statement or the Prospectus. All adjustments necessary
for a fair presentation of results for such periods have been made. The consolidated financial statements of the Company and its consolidated
subsidiaries, together with related notes and schedules as set forth or incorporated by reference in the Registration Statement and the
Prospectus, comply in all material respects with the applicable accounting requirements of the Securities Act. The selected financial,
operating and statistical data set forth or incorporated by reference in the Prospectus under the caption “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” fairly present, when read in conjunction with the
Company’s financial statements and the related notes and schedules and on the basis stated in the Registration Statement, the information
set forth therein and such data has been compiled on a basis consistent with the financial statements presented therein and the books
and records of the Company. The interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration
Statement and the Prospectus fairly present the information called for in all material respects and have been prepared in accordance
with the Commission’s rules and guidelines applicable thereto. All non-GAAP financial measures (as such term is defined by
the rules and regulations of the Commission) included in or incorporated by reference into the Registration Statement and the Prospectus
comply in all material respects with the requirements of Regulation G and Item 10 of Regulation S-K of the Securities Act to the extent
such rules are applicable to such financial measures.
11
(18) Independent
Accountants. Grant Thornton LLP (“Grant Thornton”), whose reports on the consolidated financial statements of
the Company and its subsidiaries constitute part of the Prospectus, is, and was during the periods covered by its reports, an independent
registered public accounting firm as required by the Securities Act and the Public Company Accounting Oversight Board (including the
rules and regulations promulgated by such entity, the “PCAOB”). To the knowledge of the Company, Grant Thornton
is duly registered and in good standing with the PCAOB. Grant Thornton has not during the periods covered by the financial statements
included or incorporated by reference in the Registration Statement and in the Prospectus, provided to the Company any non-audit services,
as such term is defined in Section 10A(g) of the Exchange Act, except for such non-audit services as have been pre-approved
by the Audit Committee of the Company’s Board of Directors.
(19) No
Material Adverse Change. Subsequent to the respective dates of the financial statements, and except as may be otherwise disclosed
in the Prospectus, there has not been (A) any Material Adverse Change or any development that would reasonably be expected to result
in a Material Adverse Change, whether or not arising in the ordinary course of business, (B) any transaction that is material to
the Company and the Subsidiaries taken as a whole entered into by the Company or any of the Subsidiaries, (C) any obligation, contingent
or otherwise, directly or indirectly incurred by the Company or any Subsidiary that is material to the Company and the Subsidiaries taken
as a whole or (D) any dividend or other distribution of any kind declared, paid or made by the Company on any class of its capital
stock.
(20) Description
of Securities. The Common Stock and the Preferred Stock conform in all material respects to the descriptions thereof contained in
the Prospectus.
(21) Absence
of Registration Rights. Except as disclosed in the Prospectus, there are no persons with registration or other similar rights to
have any equity or debt securities of the Company or the Subsidiaries, including securities which are convertible into or exchangeable
or redeemable for equity securities of the Company or the Subsidiaries, registered pursuant to the Registration Statement or otherwise
registered by the Company under the Securities Act.
12
(22) Authorization
of Securities. The Securities have been duly authorized and, when issued and duly delivered against payment therefor as contemplated
by this Agreement, will be validly issued, fully paid and non-assessable and the sale of the Securities by the Company is not subject
to preemptive, right of first refusal or other similar rights.
(23) Listing.
The shares of Common Stock are listed on the Nasdaq Global Select Market and the Company is currently in compliance in all material respects
with all continued listing standards and corporate governance standards of the Nasdaq Global Select Market and the Company has no knowledge
of any proceeding intended to suspend or terminate listing of its Common Stock on the Nasdaq Global Select Market. The Common Stock is
registered under Section 12(b) of the Exchange Act.
(24) Absence
of Stabilization and Manipulation. The Company has not taken, directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities.
(25) Absence
of Registration Requirements. Neither the Company nor, to the knowledge of the Company, any of its affiliates, (A) is required
to register as a “broker” or “dealer” in accordance with the provisions of the Exchange Act, or (B) directly,
or indirectly through one or more intermediaries, controls or has any other association with (within the meaning of Article I of
the By-laws of FINRA) any member firm of FINRA.
(26) Form of
Certificates. The form of certificate used to evidence the Common Stock complies in all material respects with all applicable statutory
requirements, with any applicable requirements of the organizational documents of the Company and the requirements of NASDAQ.
(27) Title
to Property. The Company and the Subsidiaries have good and marketable title in fee simple to all real property, if any, and good
title to all personal property, if any, owned by them, in each case free and clear of all liens, security interests, pledges, charges,
encumbrances, claims, restrictions, mortgages and defects in such title (collectively, the “Encumbrances”), except
such Encumbrances that are disclosed in the Prospectus or would not reasonably be expected to have a Material Adverse Effect; any real
or personal property leased by the Company or any Subsidiary is held under a lease which is a valid and binding agreement, enforceable
against the Company or such Subsidiary (to the extent a party thereto) and, to the Company’s knowledge, the other parties thereto,
except (A) as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights
generally, and by general principles of equity, and except to the extent that the indemnification and contribution provisions of Section 10
hereof may be limited by federal or state securities laws and public policy considerations in respect thereof, (B) as otherwise
disclosed in the Prospectus or (C) for such exceptions that would not reasonably be expected to have a Material Adverse Effect.
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(28) Mortgages.
Except as disclosed in the Prospectus, the mortgages, if any, encumbering any real property owned in fee simple by the Company or a Subsidiary
are not and will not be: (A) convertible (in the absence of foreclosure) into an equity interest in such real property or in the
Company or any Subsidiary, (B) cross-defaulted to any indebtedness other than indebtedness of the Company or any of the Subsidiaries
or (C) cross-collateralized to any property or assets not owned by the Company or any of the Subsidiaries.
(29) Description
of Legal Proceedings. The descriptions of legal or governmental proceedings, contracts, leases and other legal documents in the Prospectus
constitute fair and accurate summaries of such proceedings or documents, and there are no legal or governmental proceedings, contracts,
leases or other documents that are known to the Company of a character required to be described in the Prospectus or filed as exhibits
to the Registration Statement which are not so described or filed; all agreements between the Company or any of the Subsidiaries and
third parties expressly referenced in the Prospectus are legal, valid and binding obligations of the Company or the Subsidiaries, to
the extent a party thereto, and, to the knowledge of the Company, of the other parties thereto, enforceable against the Company or Subsidiaries
in accordance with their respective terms (except (A) to the extent enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors’ rights generally and by general equitable principles, and except to the extent
that the indemnification and contribution provisions may be limited by federal or state securities laws and public policy considerations
in respect thereof and (B) where the failure to be enforceable would not reasonably be expected to have a Material Adverse Effect),
and neither the Company nor any Subsidiary is in breach or default under any such agreements except where the breach or default thereof
would not reasonably be expected to have a Material Adverse Effect.
(30) Possession
of Intellectual Property. The Company or the Subsidiaries own or possess adequate licenses or other rights to use all material patents,
trademarks, service marks, trade names, copyrights, software licenses, trade secrets, other intangible property rights and know-how (collectively,
“Intangibles”) necessary for the Company and the Subsidiaries taken together as a whole (the “Consolidated
Company”) to conduct the business of the Consolidated Company as described in the Prospectus, and neither the Company nor any
Subsidiary has received notice of infringement of or conflict with (and the Company and the Subsidiaries know of no such infringement
of or conflict with) asserted rights of others with respect to any Intangibles which could reasonably be expected to have a Material
Adverse Effect. Except as would not reasonably be expected to have a Material Adverse Effect, the Company and the Subsidiaries own or
have a valid right to access and use all computer systems, networks, hardware, software, databases, websites, and equipment used to process,
store, maintain and operate data, information, and functions used in connection with the business of the Company and the Subsidiaries
(the “Company IT Systems”). The Company IT Systems are adequate for, and operate and perform in all material respects
as required in connection with, the operation of the business of the Company and the Subsidiaries as currently conducted, except as would
not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company and the Subsidiaries have
implemented commercially reasonable backup, security and disaster recovery technology, and to the Company’s knowledge there have
been no material breaches, violations, outages or unauthorized uses of or accesses to the Company IT Systems and data (including all
personal, personally identifiable, sensitive, confidential or regulated data), nor any incidents under internal review or investigations
relating to the same.
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(31) Accounting
Controls. The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that, with respect
to the Consolidated Company, (A) transactions are executed in accordance with management’s general or specific authorizations;
(B) transactions are recorded as necessary to permit preparation of the consolidated financial statements of the Company in conformity
with generally accepted accounting principles as applied in the United States and to maintain asset accountability; (C) access to
assets is permitted only in accordance with management’s general or specific authorization; and (D) 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 disclosed in the Prospectus, since the date of the most recent evaluation of such system of internal accounting controls, there
has been no material change in internal control over financial reporting, including any corrective actions with regard to significant
deficiencies or material weaknesses.
(32) Disclosure
Controls. (A) the Company has established and maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under
the Exchange Act), which (1) are designed to ensure that the information required to be disclosed by the Company in the reports
it files or submits under the Exchange Act is accumulated and communicated to management of the Company, including its principal executive
officer and its principal financial officer, as appropriate, to allow timely disclosure to be made, (2) have been evaluated for
effectiveness as of the end of the Company’s most recent quarterly fiscal period, and (3) are effective in all material respects
to perform the functions for which they were established, and (B) based on the evaluation of the Company’s disclosure controls
and procedures described above, the Company is not aware of (1) any material weakness in the design or operation of internal control
over financial reporting which is reasonably likely to adversely affect the Company’s ability to record, process, summarize and
report financial information, or (2) any fraud, whether or not material, that involves management or other employees who have a
significant role in the Company’s internal control over financial reporting. To the Company’s knowledge, since the most recent
evaluation of the Company’s disclosure controls and procedures described above and except as otherwise described in the Prospectus,
there have been no significant changes in internal control over financial reporting or in other factors that could significantly affect
internal control over financial reporting.
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(33) ERISA.
The Company and the Subsidiaries are in compliance in all material respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder (“ERISA”);
no “reportable event” (as defined in ERISA) has occurred with respect to any “pension plan” (as defined in ERISA)
for which the Company or any of the Subsidiaries would have any material liability; neither the Company nor any of the Subsidiaries has
incurred and none of them expect to incur any material liability under (A) Title IV of ERISA with respect to termination of, or
withdrawal from, any “pension plan” or (B) Section 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (“Code”); each “pension plan” for which
the Company or any of the Subsidiaries would have any liability that is intended to be qualified under Section 401(a) of the
Code is so qualified in all material respects and nothing has occurred, whether by action or by failure to act, which would cause the
loss of such qualification, the result of which would reasonably be expected to result in a Material Adverse Effect.
(34) Tax
Returns. The Company and each of the Subsidiaries has filed on a timely basis all material U.S. federal, state, local and foreign
tax returns required to be filed through the date hereof or have properly requested extensions thereof, and all such tax returns are
true, correct and complete in all material respects (except where any omission or inaccuracy could not reasonably be expected to have
a Material Adverse Effect), and have paid all material taxes required to be paid, including any tax assessment, fine or penalty levied
against the Company or any of the Subsidiaries other than such amounts that are being contested in good faith and for which appropriate
reserves have been provided for on the books of such entities; and no tax deficiency has been asserted against any such entity, nor does
any such entity know of any tax deficiency which is likely to be asserted against any such entity which, individually or in the aggregate,
if determined adversely to any such entity, could reasonably be expected to have a Material Adverse Effect; all material tax liabilities
are adequately provided for on the respective books of such entities.
(35) REIT
Qualification. The Company is organized and has operated in conformity with the requirements for qualification as a real estate investment
trust (a “REIT”) under the Code; the Company qualified as a REIT for the taxable years ended December 31, 2004
through December 31, 2025 and the present and contemplated method of operation of the Company and the Subsidiaries will enable the
Company to meet the requirements for qualification and taxation as a REIT under the Code for its tax year ending December 31, 2026
and subsequent taxable years; and the Company intends to continue to qualify as a REIT until the Board of Directors of the Company determines
that it is no longer in the best interests of the Company to continue to qualify as a REIT; neither the Company nor any of the Subsidiaries
has taken any action that could reasonably be expected to cause the Company to fail to qualify as a REIT under the Code at any time.
The description of the Company’s organization and actual and proposed method of operation and its qualification and taxation as
a REIT set forth in the Prospectus is accurate and presents fairly the matters referred to therein in all material respects; the Company’s
operating policies and investment guidelines described in the Prospectus accurately reflect in all material respects the current intentions
of the Company with respect to the operation of its business, and no material deviation from such guidelines or policies is currently
contemplated.
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(36) Key
Personnel. To the knowledge of the Company, no director, officer or other key person of the Company, its Subsidiaries or its affiliates
named in the Prospectus, plans to terminate his or her employment with the Company, its Subsidiaries or its affiliates. None of the directors,
officers or other key persons of the Company named in the Prospectus is subject to any noncompete, nondisclosure, confidentiality, employment,
consulting or similar agreement that would be violated by the present or proposed business activities of the Company as described in
the Prospectus.
(37) U.S.
Federal Income Tax Considerations. The statements set forth in the Prospectus under the caption “Material U.S. Federal Income
Tax Considerations” insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate
and complete in all material respects.
(38) Tax
Advice. The Company has not relied upon the Placement Agents or legal counsel for the Placement Agents for any legal, tax or accounting
advice in connection with the offering and sale of the Securities.
(39) No
Other Offering Documents or Prospectuses. The Company has not distributed, and prior to the completion of the distribution of the
Securities, will not distribute, any offering material in connection with the offering or sale of the Securities to be sold hereunder
by the Placement Agents, other than the Registration Statement, the Prospectus and any Permitted Free Writing Prospectus reviewed and
consented to by the Placement Agents.
(40) Insurance.
The Company maintains insurance, including title insurance (in each case, issued by insurers of recognized financial responsibility)
of the types and in the amounts as are, in the reasonable opinion of management, prudent for their business, all of which insurance is
in full force and effect. The Company has not been refused any insurance coverage sought or applied for, and the Company has no reason
to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business at a cost that would not reasonably be expected to have a Material
Adverse Effect.
17
(41) Environmental
Laws. The Company and the Subsidiaries have received all permits, licenses or other approvals required of them under applicable federal
and state occupational safety and health and environmental laws, regulations and rules to conduct the business of the Consolidated
Company, and the Company and the Subsidiaries are in compliance with all terms and conditions of any such permits, licenses or approvals,
except for any failure to have required permits, licenses or other approvals or to comply with the terms and conditions of such permits,
licenses or approvals which would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change.
(42) Absence
of Impermissible Transactions. None of the Company, any of the Subsidiaries or, to the knowledge of the Company, any officer, director,
employee or agent purporting to act on behalf of the Company or any of the Subsidiaries has at any time (A) made any contributions
to any candidate for political office, or failed to disclose fully any such contributions, in violation of law, (B) made any payment
of funds or received or retained any funds in violation of any law, rule or regulation or of a character required to be disclosed
in the Prospectus, or (C) engaged in any material transactions, maintained any bank account or used any material corporate funds
except for transactions, bank accounts and funds which have been or are, as applicable, reflected in the books and records of the Company
and the Subsidiaries. The Company has not offered, or caused the Placement Agents to offer, the Securities to any person or entity with
the intention of unlawfully influencing a journalist or publication to write or publish favorable information about the Company or any
such affiliate.
(43) Absence
of Indebtedness. Except as disclosed in the Prospectus, there are no material outstanding loans, advances or guarantees of indebtedness
by the Company or any of the Subsidiaries to or for the benefit of any of the officers or directors of the Company or any officers and/or
directors of the Subsidiaries or any of the members of the immediate families of any such officers or directors.
(44) Issued
Securities. All securities issued by the Company, any of the Subsidiaries or any trusts established by the Company or any of the
Subsidiaries have been issued and sold in compliance with (A) all applicable federal and state securities laws and (B) the
applicable corporate, limited liability company or partnership law of the jurisdiction of incorporation or organization of the Company
or Subsidiary, as applicable except, in each case, where failure thereof would not reasonably be expected to have a Material Adverse
Effect.
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(45) Lessees.
Except as disclosed in the Prospectus, to the Company’s knowledge, no lessee of any portion of any of the real properties owned
by the Company or any of the Subsidiaries (collectively, the “Properties”) is in default under any of the leases governing
such Properties and there is no event which, but for the passage of time or the giving of notice or both, would constitute a default
under any of such leases, except such defaults that, individually or in the aggregate, would not reasonably be expected to have a Material
Adverse Effect.
(46) Hazardous
Materials. To the Company’s knowledge neither the Company nor any of the Subsidiaries has any liability under any applicable
environmental, health, safety or similar law or otherwise relating to any Hazardous Material (as defined below) and there are no written
notices of potential liability or claims pending or, to the knowledge of the Company, threatened against the Company or any of the Subsidiaries
or concerning any of the Properties under any applicable environmental, health, safety or similar law or otherwise relating to any Hazardous
Material, except for such liabilities or claims which would not reasonably be expected to have a Material Adverse Effect; neither the
Company nor any of the Subsidiaries or, to the knowledge of the Company, any other person, has contaminated or caused conditions that
threaten to contaminate any of the Properties with Hazardous Materials, except for such contamination or threats of contamination which
could not reasonably be expected to have a Material Adverse Effect; neither the Properties nor any other land ever owned by the Company
or any of the Subsidiaries is included on or, to the knowledge of the Company, is proposed for inclusion on the National Priorities List
pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq., or any similar
list or inventory of contaminated properties, the result of which would reasonably be expected to have a Material Adverse Effect. As
used herein, “Hazardous Material” shall mean any hazardous material, hazardous waste, hazardous substance, hazardous
constituent, toxic substance, pollutant, contaminant, asbestos, petroleum, petroleum waste, radioactive material, biohazardous material,
explosive or any other material, the presence of which in the environment is prohibited, regulated, or serves as the basis of liability,
as defined, listed, or regulated by any applicable federal, state, or local environmental law, ordinance, rule, or regulation.
(47) Compliance
with Securities Laws. In connection with the offer and sale of the Securities, the Company has not offered shares of Common Stock
or any other securities convertible into or exchangeable or exercisable or redeemable for Common Stock in a manner in violation of the
Securities Act.
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(48) Labor
Relations. With respect to employees of the Company or any Subsidiary, no labor dispute exists or, to the knowledge of the Company
or any Subsidiary, is imminent, that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(49) Lending
Relationship. Except as disclosed in the Prospectus, neither the Company nor any of its Subsidiaries has any outstanding borrowings
from, or is a party to any line of credit, credit agreement or other credit facility or otherwise has a borrowing relationship with,
any bank or other lending institution affiliated with the Placement Agents, and the Company does not intend to use any of the proceeds
from the sale of the Securities to repay any debt owed to the Placement Agents or, to the knowledge of the Company, any affiliate thereof.
(50) Absence
of Finders’ Fees. The Company has not incurred any liability for any finder’s fees or similar payments in connection
with the transactions herein contemplated.
(51) No
Other Contracts. Other than this Agreement, there are no contracts, agreements or understandings between the Company or any of its
Subsidiaries and any person that would give rise to a valid claim against the Company or any of its Subsidiaries or the Placement Agents
for a brokerage commission, finder’s fee or other like payment with respect to the consummation of the transactions contemplated
by this Agreement.
(52) Proprietary
Trading by the Placement Agents. The Company acknowledges and agrees that the Placement Agents have informed the Company that the
Placement Agents may, to the extent permitted under the Securities Act and the Exchange Act, purchase and sell shares of Common Stock
for its own account while this Agreement is in effect, and shall be under no obligation to purchase Securities on a principal basis pursuant
to this Agreement, except as otherwise agreed by the Placement Agents in the Placement Notice (as amended by the corresponding Acceptance,
if applicable); provided, that no such purchase or sales shall take place while a Placement Notice is in effect (except (i) as
agreed by the Placement Agents in the Placement Notice (as amended by the corresponding Acceptance, if applicable) or (ii) to the
extent the Placement Agents may engage in sales of Placement Securities purchased or deemed purchased from the Company as a “riskless
principal” or in a similar capacity). The Company further acknowledges and agrees that, except as otherwise agreed in a Placement
Notice (as amended by the corresponding Acceptance, if applicable), it shall not be deemed to have authorized or consented to any such
purchases or sales by the Placement Agents.
(53) FINRA
Matters. All of the information provided to the Placement Agents or to counsel for the Placement Agents by the Company and, to the
knowledge of the Company, its officers and directors and the holders of any securities of the Company in connection with letters, filings
or other supplemental information provided to FINRA pursuant to FINRA Rule 5110 or 5121 is true, complete and correct in all material
respects.
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(54) Related
Party Transactions. Except as disclosed in the Prospectus, no relationship, direct or indirect, exists between or among the Company
or any of the Subsidiaries on the one hand, and the directors, officers, stockholders, customers or suppliers of the Company or any of
the Subsidiaries on the other hand, that is required by the Securities Act to be described in the Prospectus and which is not so described.
(55) Compliance
with Sarbanes-Oxley. The Company and the Subsidiaries and, to the knowledge of the Company, the officers and directors of the Company
and the Subsidiaries, in their capacities as such, are, and at each Settlement Date and any Applicable Time will be, in compliance in
all material respects with the applicable provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated
thereunder or implementing the provisions thereof (the “Sarbanes-Oxley Act”).
(56) Investment
Company Act. The Company is not and, after giving effect to the offering and sale of the Securities and the application of the net
proceeds thereof as described under the caption “Use of Proceeds” in the Prospectus, will not be required to register as
an “investment company” under the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(57) Statistical
and Market Data. The statistical and market related data included in the Prospectus are based on or derived from sources that the
Company believes to be reliable and accurate.
(58) OFAC.
Neither the Company nor any of the Subsidiaries, nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate
of the Company or any of the Subsidiaries is, or is owned or controlled by one or more persons that are, (A) currently the subject
of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control or any similar
sanctions imposed by any other relevant sanction authority to which the Company or any of its Subsidiaries is subject (collectively,
“Sanctions”), nor (B) located, organized or resident in the country or territory that is the subject of Sanctions
(including, without limitation, Cuba, Iran, North Korea, Russia, Belarus, the regions of Ukraine consisting of Crimea, the so-called
Donetsk People’s Republic, the so-called Luhansk People’s Republic and the non-government controlled areas of Kherson and
Zaporizhzhia and, prior to July 1, 2025, Syria); and the Company will not directly or indirectly use the proceeds of the offering
of the Securities contemplated hereby, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture
partner or other person or entity, for the purpose of financing the activities of any person currently subject to any Sanctions or in
any other manner that will result in a violation of Sanctions by any person (including any person participating in the offering, whether
as underwriter, advisor, investor or otherwise). Since April 24, 2019, the Company and the Subsidiaries have not knowingly engaged
in, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any person, or in any country or territory,
that at the time of the dealing or transaction is or was the subject of Sanctions.
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(59) Foreign
Corrupt Practices Act. Neither the Company nor any of the Subsidiaries nor, to the knowledge of the Company, any director, officer,
agent, employee or affiliate of the Company or any of the Subsidiaries: (i) has used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expense relating to political activity: (ii) has made any direct or indirect unlawful contribution
or payment to any official of, or candidate for, or any employee of, any federal, state or foreign office from corporate funds; (iii) has
made any bribe, unlawful rebate, payoff, influence payment, kickback or other unlawful payment; or (iv) is aware of or has taken
any action, directly or indirectly, that would result in a violation by such persons of the OECD Convention on Bribery of Foreign Public
Officials in International Business Transactions, the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations
thereunder (collectively, the “FCPA”) or any similar law or regulation to which the Company, any of its Subsidiaries,
any director, officer, agent, employee, affiliate or other person associated with or acting on behalf of the Company or any of its Subsidiaries
is subject. Each of the Company, the Subsidiaries and their affiliates has conducted its businesses in compliance with the FCPA and any
applicable similar law or regulation and has instituted and maintain policies and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance therewith.
(60) Money
Laundering Laws. The operations of the Company and the Subsidiaries are and have been conducted at all times in material compliance
with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title
III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001
(USA PATRIOT Act), the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable anti-money laundering statutes
of jurisdictions where the Company or any Subsidiaries conduct business, the rules and regulations thereunder and any related or
similar applicable rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Anti-Money
Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body involving
the Company or any of the Subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company,
threatened.
(b) Certificates.
Any certificate signed by any officer of the Company delivered to the Placement Agents or to counsel for the Placement Agents pursuant
to the terms or provisions of this Agreement shall be deemed a representation and warranty by the Company to the Placement Agents as
to the matters covered thereby.
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Section 6. Sale
and Delivery to the Placement Agents; Settlement.
(a) Sale
of Placement Securities. On the basis of the representations and warranties herein contained and subject to the terms and conditions
herein set forth, upon the applicable Placement Agent’s acceptance of the terms of a Placement Notice or upon receipt by such Placement
Agent of an Acceptance, as the case may be, and unless the sale of the Placement Securities described therein has been declined, suspended,
or otherwise terminated in accordance with the terms of this Agreement, such Placement Agent, for the period specified in the Placement
Notice, 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 NASDAQ to sell such Placement Securities up to the amount specified, and
otherwise in accordance with the terms of such Placement Notice. The Company acknowledges and agrees that (i) there can be no assurance
that any Placement Agent will be successful in selling Placement Securities, (ii) no Placement Agent will incur any liability or
obligation to the Company or any other person or entity if it does not sell Placement Securities for any reason other than a failure
by such Placement Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such
Placement Securities as required under this Section 6, and (iii) no Placement Agent shall be under any obligation to
purchase Securities on a principal basis pursuant to this Agreement, except as otherwise agreed by such Placement Agent in the Placement
Notice (as amended by the corresponding Acceptance, if applicable).
(b) Settlement
of Placement Securities. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement Securities
will occur on the first (1st) 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 Securities sold (the “Net Proceeds”) will be equal to the aggregate
sales price received by the applicable Placement Agent at which such Placement Securities were sold, after deduction for (i) such
Placement Agent’s commission, discount or other compensation for such sales payable by the Company pursuant to Section 2
hereof and (ii) any other amounts due and payable by the Company to such Placement Agent hereunder pursuant to Section 8(a) hereof;
provided such amounts are detailed and itemized in a written statement delivered to the Company no later than 8:00 p.m., Eastern Time,
on the Business Day prior to the Settlement Date.
(c) Delivery
of Placement Securities. On or before each Settlement Date, concurrently with the receipt by the Company of the Net Proceeds due
to the Company in respect of such Settlement Date, the Company will, or will cause its transfer agent to, electronically transfer the
Placement Securities being sold by crediting the applicable Placement Agent’s or its designee’s account (provided such Placement
Agent shall have given the Company written notice of such designee at least one Business Day prior to the Settlement Date) 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 hereto which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. On each
Settlement Date, the applicable Placement Agent will deliver the related Net Proceeds in same day funds to an account designated by the
Company on, or prior to, the Settlement Date. The Company agrees that if the Company, or its transfer agent (if applicable), defaults
in its obligation to deliver Placement Securities on a Settlement Date, the Company agrees that, in addition to and in no way limiting
the rights and obligations set forth in Section 10(a) hereto, it will (i) hold the applicable Placement Agent 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 and (ii) pay to such Placement Agent any commission, discount, or other compensation to which it
would otherwise have been entitled absent such default.
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(d) Denominations;
Registration. If requested by the Placement Agents at least one Business Day prior to the Settlement Date, then in lieu of electronic
transfer, certificates for the Securities shall be in such denominations and registered in such names as the Placement Agents shall have
specified in such request. The certificates for the Securities will be made available for examination and packaging by the Placement
Agents in The City of New York not later than 12:00 p.m. (New York time) on the Business Day prior to the Settlement Date.
Section 7. Covenants
of the Company. The Company covenants with the Placement Agents as follows:
(a) Registration
Statement Amendment. After the date of this Agreement and during any period in which a Prospectus relating to any Placement Securities
is required to be delivered by the Placement Agents under the Securities Act (including in circumstances where such requirement may be
satisfied pursuant to Rule 172 under the Securities Act), (i) the Company will notify the Placement Agents promptly of the
time when any subsequent amendment to the Registration Statement, other than documents incorporated by reference, has been filed with
the Commission and/or has become effective or any subsequent supplement to the Prospectus has been filed with the Commission, other than
documents incorporated by reference, and of any comment letter from the Commission or any request by the Commission for any amendment
or supplement to the Registration Statement or Prospectus or for additional information; (ii) unless otherwise advised by the Company’s
legal counsel, the Company will prepare and file with the Commission, promptly upon the Placement Agent’s request, any amendments
or supplements to the Registration Statement or Prospectus that, in the Placement Agent’s reasonable opinion, may be necessary
or advisable in connection with the distribution of the Placement Securities by the Placement Agents (provided, however, that
the failure of the Placement Agents to make such request shall not relieve the Company of any obligation or liability hereunder, or affect
the Placement Agent’s right to rely on the representations and warranties made by the Company in this Agreement); (iii) the
Company will not file any amendment or supplement to the Registration Statement or Prospectus, other than documents incorporated by reference,
relating to the Placement Securities or a security convertible into the Placement Securities unless (A) a copy thereof has been
submitted to the Placement Agents within a reasonable period of time before the filing and the Placement Agents have not reasonably objected
thereto or (B) the Company has been advised by legal counsel that a failure to do so could result in a violation of applicable securities
laws (provided, however, that the failure of the Placement Agents to make such objection shall not relieve the Company of any
obligation or liability hereunder, or affect the Placement Agent’s right to rely on the representations and warranties made by
the Company in this Agreement) and the Company will furnish to the Placement Agents 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 (iv) the Company will cause each amendment or supplement to the Prospectus, other than documents incorporated
by reference, 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).
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(b) Notice
of Commission Stop Orders. The Company will advise the Placement Agents, promptly after it receives notice or obtains knowledge thereof,
of the issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement
or of any other order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of
the qualification of the Placement Securities for offering or sale in any jurisdiction, of the loss or suspension of any exemption from
any such qualification, of the initiation or threatening of any proceedings for any of such purposes, or of any examination pursuant
to Section 8(e) of the Securities Act concerning the Registration Statement or if the Company becomes the subject of a proceeding
under Section 8A of the Securities Act in connection with the offering of the Securities. The Company will use its commercially
reasonable efforts to prevent the issuance of any stop order, the suspension of any qualification of the Securities for offering or sale
and any loss or suspension of any exemption from any such qualification, and if any such stop order is issued or any such suspension
or loss occurs, to obtain the lifting thereof at the earliest possible moment.
(c) Delivery
of Registration Statement and Prospectus. Except to the extent such documents have been publicly filed with the Commission pursuant
to EDGAR, the Company will furnish to the Placement Agents and their counsel (at the expense of the Company) copies of the Registration
Statement, the Prospectus (including all documents incorporated by reference therein) and all amendments and supplements to the Registration
Statement or Prospectus, and any Issuer Free Writing Prospectuses, that are filed with the Commission during any period in which a Prospectus
relating to the Placement Securities is required to be delivered under the Securities Act (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 and in such
quantities and at such locations as the Placement Agents may from time to time reasonably request.
(d) Continued
Compliance with Securities Laws. If at any time when a Prospectus is required by the Securities Act or the Exchange Act to be delivered
in connection with a pending sale of the Placement Securities (including, without limitation, pursuant to Rule 172 under the Securities
Act), any event shall occur or condition shall exist as a result of which it is necessary to amend the Registration Statement together
with the Prospectus in order that the Prospectus will not include any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered
to a purchaser, or if it shall be necessary at any such time to amend the Registration Statement together with the Prospectus in order
to comply with the requirements of the Securities Act, the Company will promptly notify the Placement Agents to suspend the offering
of Placement Securities during such period and the Company will promptly prepare and file with the Commission such amendment or supplement
as may be necessary to correct such statement or omission or to make the Registration Statement and the Prospectus comply with such requirements,
and the Company will furnish to the Placement Agents such number of copies of such amendment or supplement as the Placement Agents may
reasonably request. If at any time following the issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development
as a result of which such Issuer Free Writing Prospectus conflicted, conflicts or would conflict with the information contained in the
Registration Statement or the Prospectus relating to the Securities that was not superseded or modified or included, includes or would
include an untrue statement of a material fact or together with the Prospectus omitted, omits or would omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances, prevailing at that subsequent time, not misleading,
the Company will promptly notify the Placement Agents to suspend the offering of Placement Securities during such period and the Company
will, subject to Section 7(a) hereof, promptly amend or supplement such Issuer Free Writing Prospectus to eliminate
or correct such conflict, untrue statement or omission.
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(e) Blue
Sky and Other Qualifications. The Company will use its commercially reasonable efforts, in cooperation with the Placement Agents,
to qualify the Placement Securities for offering and sale, or to obtain an exemption for the Securities to be offered and sold, under
the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Placement Agents may designate and
to maintain such qualifications and exemptions in effect for so long as required for the distribution of the Securities (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 Securities 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 Securities (but in no event for less than one year from
the date of this Agreement).
(f) Rule 158.
The Company will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its securityholders
as soon as practicable an earnings statement for the purposes of, and to provide to the Placement Agents the benefits contemplated by,
the last paragraph of Section 11(a) of the Securities Act.
(g) Use
of Proceeds. The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the
Prospectus under “Use of Proceeds.”
(h) Listing.
During any period in which the Prospectus relating to the Placement Securities is required to be delivered by the Placement Agents under
the Securities Act with respect to a pending sale of the Placement Securities (including in circumstances where such requirement may
be satisfied pursuant to Rule 172 under the Securities Act), the Company will use its commercially reasonable efforts to cause the
Placement Securities to be listed on NASDAQ.
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(i) Filings
with NASDAQ. The Company will timely seek to file with NASDAQ all material documents and notices required by NASDAQ of companies
that have securities traded on NASDAQ.
(j) Reporting
Requirements. The Company, during any period when the Prospectus relating to the Placement Securities is required to be delivered
under the Securities Act and the Exchange Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172
under the Securities Act), 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.
(k) Notice
of Other Sales. During the pendency of any Placement Notice (as amended by the corresponding Acceptance, if applicable) given hereunder,
the Company shall provide the Placement Agents notice a reasonable time before it offers to sell, contracts to sell, sells, grants any
option to sell or otherwise disposes of any shares of Common Stock (other than Placement Securities offered pursuant to the provisions
of this Agreement) or securities convertible into or exchangeable for Common Stock, warrants or any rights to purchase or acquire Common
Stock; provided, that such notice shall not be required in connection with the (i) issuance, grant or sale of restricted
stock, Common Stock, long-term incentive plan units, options to purchase Common Stock, or Common Stock issuable upon the exercise of
options or other equity awards pursuant to any stock option, stock bonus or other stock or compensatory plan or arrangement described
in the Prospectus, (ii) the issuance of securities in connection with an acquisition, merger or sale or purchase of assets described
in the Prospectus, (iii) the issuance or sale of Common Stock pursuant to any dividend reinvestment plan or direct stock purchase
plan that the Company has in effect or may adopt from time to time, provided the implementation of such new plan is disclosed
to the Placement Agents in advance, or (iv) the issuance of Common Stock upon the exercise of any outstanding security of the Company
convertible into or exchangeable for Common Stock, warrants or any rights to purchase or acquire Common Stock; provided further that
such notice shall not be required if such information has been filed or furnished on EDGAR or has otherwise been publicly disclosed in
advance of such offer, contract, sale, grant or other disposal.
(l) Change
of Circumstances. The Company will, at any time during a fiscal quarter in which the Company intends to tender a Placement Notice
or sell Placement Securities, advise the Placement Agents promptly after it shall have received notice or obtained knowledge thereof,
of any information or fact that would alter or affect in any material respect any opinion, certificate, letter or other document provided
to the Placement Agents pursuant to this Agreement during such fiscal quarter.
(m) Due
Diligence Cooperation. The Company will cooperate with any reasonable due diligence review conducted by the Placement Agents or its
agents in connection with the transactions contemplated hereby, including, without limitation, providing information and making available
documents and senior officers, during regular business hours and at the Company’s principal offices, as the Placement Agents may
reasonably request.
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(n) Disclosure
of Sales. The Company agrees that it will either (i) disclose in its Quarterly Reports on Form 10-Q and in its Annual Report
on Form 10-K the number of Placement Securities sold through the Placement Agents during the most recent fiscal quarter, the Net
Proceeds to the Company and the compensation paid or payable by the Company to the Placement Agents with respect to such Placement Securities
or (ii) (x) on or prior to the date of each such filing of its Annual and Quarterly Reports on Forms 10-K and 10-Q, file a
prospectus supplement with the Commission under the applicable paragraph of Rule 424(b) under the Securities Act, which prospectus
supplement will contain the information required by clause (i), and (y) deliver such number of copies of each such prospectus supplement
to each exchange or market on which such sales were effected as may be required by the rules or regulations of such exchange or
market.
(o) Representation
Dates; Certificate. On or prior to the date that the Placement Securities are first sold pursuant to the terms of this Agreement
and:
(i) each
time the Company files the Prospectus relating to the Placement Securities or amends or supplements the Registration Statement or the
Prospectus relating to the Placement Securities (other than amendments or supplements that are filed solely to report sales of the Placement
Securities pursuant to this Agreement) by means of a post-effective amendment, sticker, or supplement but, except as set forth in clauses
(ii), (iii) and (iv) below, not by means of incorporation of documents by reference into the Registration Statement or the
Prospectus relating to the Placement Securities;
(ii) each
time the Company files its Annual Report on Form 10-K under the Exchange Act;
(iii) each
time the Company files its Quarterly Reports on Form 10-Q under the Exchange Act; or
(iv) each
time the Company files a report on Form 8-K containing amended financial information (other than an earnings release, to “furnish”
information 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 (each date of filing of one or more of the documents referred to in clauses (i) through (iv) shall
be a “Representation Date”);
the Company shall furnish the Placement Agents
with a certificate, in the form attached hereto as Exhibit F, within three (3) Trading Days of any Representation Date.
The requirement to provide a certificate under this Section 7(o) shall be waived for any Representation Date occurring
at a time at which no Placement Notice (as amended by the corresponding Acceptance, if applicable) 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) and the next occurring Representation Date; provided, however, that such waiver shall not apply for any
Representation Date on which the Company files its Annual Report on Form 10-K. Notwithstanding the foregoing, if the Company subsequently
decides to sell Placement Securities following a Representation Date when the Company relied on such waiver and did not provide the Placement
Agents with a certificate under this Section 7(o), then before the Company delivers the Placement Notice or the Placement
Agents sell any Placement Securities, the Company shall provide the Placement Agents with a certificate, in the form attached hereto
as Exhibit F, dated the date of the Placement Notice.
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(p) Legal
Opinions. On or prior to the date that the Securities are first sold pursuant to the terms of this Agreement and within three (3) Trading
Days after each Representation Date (excluding Representation Dates with regard to the time the Company files its Quarterly Reports on
Form 10-Q) with respect to which the Company is obligated to deliver a certificate in the form attached hereto as Exhibit F
for which no waiver is applicable, the Company shall use its commercially reasonable efforts to cause to be furnished to the Placement
Agents (i) a written opinion of Vinson & Elkins L.L.P., corporate counsel to the Company (“Company Corporate Counsel”),
or other counsel satisfactory to the Placement Agents, in form and substance reasonably satisfactory to the Placement Agents and their
counsel, dated the date that the opinion is required to be delivered, substantially similar to the form attached hereto as Exhibit D
and (ii) a written opinion of Vinson & Elkins L.L.P., special tax counsel to the Company (“Company Special Counsel”),
or other counsel satisfactory to the Placement Agents, in form and substance reasonably satisfactory to the Placement Agents and their
counsel, dated the date that the opinion is required to be delivered, substantially similar to the form attached hereto as Exhibit E.
The Placement Agents covenant to use their commercially reasonable efforts to cause to be furnished to themselves a written opinion of
Skadden, Arps, Slate, Meagher & Flom LLP, counsel to the Placement Agents (“Counsel to the Placement Agents”),
or other counsel satisfactory to the Placement Agents, in form and substance reasonably satisfactory to the Placement Agents, dated the
date that the opinion is required to be delivered. In lieu of such opinions for subsequent Representation Dates, counsel may furnish
the Placement Agents with a letter to the effect that the Placement Agents may rely on a prior opinion delivered under this Section 7(p) to
the same extent as if it were dated the date of such letter (except that statements in such prior opinion shall be deemed to relate to
the Registration Statement and the Prospectus as amended or supplemented at such Representation Date).
(q) Comfort
Letter. On or prior to the date that the Securities are first sold pursuant to the terms of this Agreement and within three (3) Trading
Days after each Representation Date (excluding Representation Dates with regard to the time the Company files its Quarterly Reports on
Form 10-Q) with respect to which the Company is obligated to deliver a certificate in the form attached hereto as Exhibit F
for which no waiver is applicable, the Company shall use its commercially reasonable efforts to cause its independent accountants (and
any other independent accountants whose report is included in the Prospectus) to furnish the Placement Agents a letter (the “Comfort
Letter”), dated the date the Comfort Letter is delivered, in form and substance reasonably satisfactory to the Placement Agents,
(i) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange
Act and the PCAOB, and (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.
(r) Market
Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes
or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities or (ii) sell, bid for, or purchase the Securities to be issued and sold pursuant to this Agreement,
or pay anyone any compensation for soliciting purchases of the Securities to be issued and sold pursuant to this Agreement other than
the Placement Agents; provided, however, that the Company may bid for and purchase its Common Stock in accordance with Rule 10b-18
under the Exchange Act.
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(s) Investment
Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor its subsidiaries
will be required to register as, at any time prior to the termination of this Agreement, an “investment company,” as such
term is defined in the Investment Company Act, assuming no change in the Commission’s current interpretation as to entities that
are not considered an investment company.
(t) Securities
Act and Exchange Act. The Company will use its commercially reasonable efforts to 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 Placement Securities as contemplated by the provisions hereof and the Prospectus.
(u) 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 the Placement Agents in its capacity as principal or agent hereunder, or as deemed necessary by the Company
to comply with applicable securities laws under advice of counsel, the Company (including its agents and representatives, other than
the Placement Agents in their capacity as such) will not, directly or indirectly, make, use, prepare, authorize, approve or refer to
any free writing prospectus relating to the Securities to be sold by any Placement Agent as principal or agent hereunder.
(v) Sarbanes-Oxley
Act. The Company will use its commercially reasonable efforts to comply with all effective applicable provisions of the Sarbanes-Oxley
Act.
(w) Regulation
M. If the Company has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under
the Exchange Act are not satisfied with respect to the Company or the Common Stock, it shall promptly notify the Placement Agents and
sales of the Placement Securities under this Agreement shall be suspended until that or other exemptive provisions have been satisfied
in the judgment of each party.
(x) REIT
Qualification. The Company will use its best efforts to enable the Company to meet the requirements to qualify as a REIT under the
Code until the Board of Directors of the Company determines that it is no longer in the best interests of the Company to qualify as a
REIT.
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Section 8. Payment
of Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as originally filed and
of each amendment and supplement thereto, (ii) the word processing, printing and delivery to the Placement Agents of this Agreement
and such other documents as may be required in connection with the offering, purchase, sale, issuance or delivery of the Placement Securities,
(iii) the preparation, issuance and delivery of the certificates for the Placement Securities by the Company to the Placement Agents,
including any stock or other transfer taxes and any capital duties, stamp duties or other duties or taxes payable upon the sale, issuance
or delivery of the Placement Securities to the Placement Agents, (iv) the fees and disbursements of the counsel, accountants and
other advisors to the Company, (v) the qualification or exemption of the Placement Securities under securities laws in accordance
with the provisions of Section 7(e) hereof (provided, however, that any fees or disbursements of counsel for the Placement
Agents in connection therewith and in connection with the preparation of the Blue Sky Survey and any supplements thereto shall be paid
by the Placement Agents), (vi) the printing and delivery to the Placement Agents of copies of any permitted Free Writing Prospectus
and the Prospectus and any amendments or supplements thereto and any costs associated with electronic delivery of any of the foregoing
by the Placement Agents to investors, (vii) the fees and expenses of the transfer agent and registrar for the Securities, (viii) the
filing fees incident to the review (if any) by FINRA of the terms of the sale of the Securities, and (ix) the fees and expenses
incurred in connection with the listing of the Placement Securities on NASDAQ. In addition, the Company agrees to reimburse the Placement
Agents for certain legal fees and expenses incurred in connection with the initial filing related to this Agreement and establishment
of this program in accordance with the following terms: if shares of Common Stock having an aggregate offering price of less than $25,000,000
have been offered and sold under this Agreement in the aggregate by the second anniversary of the date hereof (or such earlier date at
which the Company terminates this Agreement) (the “Determination Date”), the Company shall reimburse the Placement Agents
for the fees and disbursements of counsel for the Placement Agents incurred in connection with the negotiation, execution and initial
filing related to this Agreement, as reasonably documented by the Placement Agents (the “Placement Agent Counsel Expenses”),
in an amount not to exceed $150,000.
Section 9. Conditions
of the Placement Agent’s Obligations. The obligations of the Placement Agents hereunder with respect to a Placement will
be subject to the continuing accuracy and completeness of the representations and warranties of the Company contained in this
Agreement or in certificates of any officer of the Company or any Subsidiary of the Company delivered pursuant to the provisions
hereof, to the performance by the Company of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Opinions
of Company Corporate Counsel, Company Maryland Counsel, Company Special Counsel and Counsel to the Placement Agents. On or prior
to the date that Securities are first sold pursuant to the terms of this Agreement the Company shall furnish to the Placement Agents
the opinions, each addressed to the Placement Agents, of (i) Company Corporate Counsel, or other counsel satisfactory to the Placement
Agents, in form and substance reasonably satisfactory to the Placement Agents and their counsel, dated the date that the opinion is required
to be delivered, substantially similar to the form attached hereto as Exhibit D-1; (ii) Company Maryland Counsel, or
other counsel satisfactory to the Placement Agents, in form and substance reasonably satisfactory to the Placement Agents and their counsel,
dated the date that the opinion is required to be delivered, substantially similar to the form attached hereto as Exhibit D-2;
(iii) Company Special Counsel, or other counsel satisfactory to the Placement Agents, in form and substance reasonably satisfactory
to the Placement Agents and their counsel, dated the date that the opinion is required to be delivered, substantially similar to the
form attached hereto as Exhibit E; and (iv) Counsel to the Placement Agents, or other counsel satisfactory to the Placement
Agents, in form and substance reasonably satisfactory to the Placement Agents dated the date that the opinion is required to be delivered.
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(b) Effectiveness
of Registration Statement. The Registration Statement and any Rule 462(b) Registration Statement shall have become effective
and shall be available for (i) all sales of Placement Securities issued pursuant to all prior Placement Notices (as amended by the
corresponding Acceptance, if applicable) and (ii) the sale of all Placement Securities contemplated to be issued by any Placement
Notice (as amended by the corresponding Acceptance, if applicable).
(c) No
Material Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company or any of its
Subsidiaries 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 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 Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose; (iv) the occurrence of any event that makes any material statement made in the Registration Statement or the Prospectus,
or any Issuer Free Writing 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, the Prospectus, or any Issuer Free
Writing Prospectus, or such 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, and any Issuer Free Writing Prospectus (when read together with 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
Misstatement or Material Omission. The Placement Agents shall not have advised the Company that the Registration Statement or Prospectus,
or any Issuer Free Writing Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that in the Placement
Agent’s reasonable opinion is material, or omits to state a fact that in the Placement Agent’s opinion is material and is
required to be stated therein or is necessary to make the statements therein not misleading.
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(e) Material
Changes. Except as disclosed in the Prospectus, there shall not have been any Material Adverse Change.
(f) Representation
Certificate. The Placement Agents shall have received the certificate required to be delivered pursuant to Section 7(o) on
or before the date on which delivery of such certificate is required pursuant to Section 7(o).
(g) Accountant’s
Comfort Letter. The Placement Agents shall have received the Comfort Letter required to be delivered pursuant to Section 7(q) on
or before the date on which such delivery of such Comfort Letter is required pursuant to Section 7(q).
(h) Approval
for Listing. The Placement Securities shall either have been (i) approved for listing on NASDAQ, subject only to notice of issuance,
or (ii) the Company shall have filed an application for listing of the Placement Securities on NASDAQ at, or prior to, the issuance
of any Placement Notice.
(i) No
Suspension. Trading in the Securities shall not have been suspended on NASDAQ.
(j) Additional
Documents. On each date on which the Company is required to deliver a certificate pursuant to Section 7(o), counsel for
the Placement Agents shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling
them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions, contained in this Agreement.
(k) Securities
Act Filings Made. All filings with the Commission required by Rule 424 under the Securities Act to have been filed prior to
the issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing by Rule 424
under the Securities Act.
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Section 10. Indemnity
and Contribution by the Company and the Placement Agents.
(a) Indemnification
by the Company. The Company agrees to indemnify, defend and hold harmless the Placement Agents and any person who controls the Placement
Agents within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any loss,
expense, liability, damage or claim (including the reasonable cost of investigation) which, jointly or severally, the Placement Agents
or any controlling person may incur under the Securities Act, the Exchange Act or otherwise, insofar as such loss, expense, liability,
damage or claim arises out of or is based upon (1) any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement (or any amendment thereof), any Issuer Free Writing Prospectus that the Company has filed or was required
to file with the Commission or the Prospectus (the term Prospectus for the purpose of this Section 10 being deemed to include
the Prospectus as of its date and as amended or supplemented by the Company), (2) any omission or alleged omission to state a material
fact required to be stated in any such Registration Statement, or necessary to make the statements made therein not misleading, or (3) any
omission or alleged omission from any such Issuer Free Writing Prospectus or Prospectus of a material fact necessary to make the statements
made therein, in the light of the circumstances under which they were made, not misleading; except, in the case of each of clauses
(1), (2) and (3), insofar as any such loss, expense, liability, damage or claim arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact or any omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein (in the case of the Prospectus and any Issuer Free Writing Prospectus, in the light of the circumstances
under which they were made) not misleading, in each such case, made in reliance upon and in conformity with information relating to the
Placement Agents and furnished in writing by the Placement Agents to the Company expressly stating that such information is intended
for inclusion in any document described in clause (a)(1) above. The indemnity agreement set forth in this Section 10(a) shall
be in addition to any liability which the Company may otherwise have. If any action is brought against the Placement Agents or any controlling
person in respect of which indemnity may be sought against the Company pursuant to the foregoing paragraph of this Section 10(a),
the Placement Agents shall promptly notify the Company, as the case may be, in writing of the institution of such action (enclosing a
copy of all papers served), and the Company, as the case may be, shall if it so elects, assume the defense of such action, including
the employment of counsel and payment of expenses; provided, however, that any failure or delay to so notify the Company,
as the case may be, will not relieve the Company of any obligation hereunder, except to the extent that their ability to defend is materially
prejudiced by such failure or delay. The Placement Agents or such controlling person shall have the right to employ their or their own
counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Placement Agents or such controlling
person unless the employment of such counsel shall have been authorized in writing by the Company, as the case may be, in connection
with the defense of such action, or the Company shall not have employed counsel reasonably satisfactory to the Placement Agents or such
controlling person, as the case may be, to have charge of the defense of such action within a reasonable time or such indemnified party
or parties shall have reasonably concluded (based on the advice of counsel) that there may be defenses available to it or them which
are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties), in any of which events such fees and expenses shall be borne by
the Company and paid as incurred (it being understood, however, that the Company shall not be liable for the expenses of more than one
separate firm of attorneys for the Placement Agents or such controlling persons in any one action or series of related actions in the
same jurisdiction (other than local counsel in any such jurisdiction) representing the indemnified parties who are parties to such action).
Anything in this paragraph to the contrary notwithstanding, the Company shall not be liable for any settlement of any such claim or action
effected without its consent.
(b) Indemnification
by the Placement Agents. The Placement Agents agree to indemnify, defend and hold harmless the Company, the Company’s directors,
the Company’s officers that signed the Registration Statement, any person who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, from and against any loss, expense, liability, damage or claim (including
the reasonable cost of investigation) which, jointly or severally, the Company or any such person may incur under the Securities Act,
the Exchange Act or otherwise, insofar as such loss, expense, liability, damage or claim arises out of or is based upon (1) any
untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereof), any
Issuer Free Writing Prospectus that the Company has filed or was required to file with the Commission, or the Prospectus, (2) any
omission or alleged omission to state a material fact required to be stated in any such Registration Statement, or necessary to make
the statements made therein not misleading, or (3) any omission or alleged omission from any such Issuer Free Writing Prospectus
or the Prospectus of a material fact necessary to make the statements made therein, in the light of the circumstances under which they
were made, not misleading, but in each case only insofar as such untrue statement or alleged untrue statement or omission or alleged
omission was made in such Registration Statement, Issuer Free Writing Prospectus or Prospectus in reliance upon and in conformity
with information relating to the Placement Agents furnished in writing by the Placement Agents to the Company expressly stating that
such information is intended for use in the Registration Statement (or any amendment thereto), the Issuer Free Writing Prospectus (or
any amendment thereto) or the Prospectus (or any amendment or supplement thereto). The indemnity agreement set forth in this Section 10(b) shall
be in addition to any liabilities that the Placement Agents may otherwise have.
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If any action is brought against the Company or
any such person in respect of which indemnity may be sought against the Placement Agents pursuant to the foregoing paragraph, the Company
or such person shall promptly notify the Placement Agents in writing of the institution of such action (enclosing a copy of all papers
served) and the Placement Agents shall, if they so elect, assume the defense of such action, including the employment of counsel and
payment of expenses; provided, however, that any failure or delay to so notify the Placement Agents will not relieve the
Placement Agents of any obligation hereunder, except to the extent that their ability to defend is materially prejudiced by such failure
or delay. The Company or such person shall have the right to employ its own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of the Company or such person unless the employment of such counsel shall have been authorized in writing
by the Placement Agents in connection with the defense of such action or the Placement Agents shall not have employed counsel reasonably
satisfactory to the Company or such person, as the case may be, to have charge of the defense of such action within a reasonable time
or such indemnified party or parties shall have reasonably concluded (based on the advice of counsel) that there may be defenses available
to it or them which are different from or additional to those available to the Company (in which case the Placement Agents shall not
have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events such fees
and expenses shall be borne by the Placement Agents and paid as incurred (it being understood, however, that the Placement Agents shall
not be liable for the expenses of more than one separate firm of attorneys in any one action or series of related actions in the same
jurisdiction (other than local counsel in any such jurisdiction) representing the indemnified parties who are parties to such action).
Anything in this paragraph to the contrary notwithstanding, the Placement Agents shall not be liable for any settlement of any such claim
or action effected without their written consent.
(c) Contribution.
If the indemnification provided for in this Section 10 is unavailable or insufficient to hold harmless an indemnified party
under subsections (a) and (b) of this Section 10 in respect of any losses, expenses, liabilities,
damages or claims referred to therein, then each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result of such losses, expenses, liabilities, damages or claims
(i) in such proportion as is appropriate to reflect the relative benefits received by the Company and by the Placement Agents, each
from the offering of the Securities, or (ii) if (but only if) the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company and the Placement Agents in connection with the statements or omissions which resulted in
such losses, expenses, liabilities, damages or claims, as well as any other relevant equitable considerations. The relative benefits
received by the Company shall be deemed to be equal to the total net proceeds from the offering of the Securities (after underwriting
discounts and commissions but before deducting the expenses described in Section 8(a)) received by each of them and benefits
received by the Placement Agents shall be deemed to be equal to the underwriting discounts and commissions received by the Placement
Agents. The relative fault of the Company and of the Placement Agents shall be determined by reference to, among other things, whether
the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by
the Company or by the Placement Agents and the intent of the parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission. Subject to the limitations set forth in Sections 10(a) and 10(b) hereof,
the amount paid or payable by a party as a result of the losses, claims, damages and liabilities referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any claim
or action.
35
(d) The
Company and the Placement Agents agree that it would not be just and equitable if contribution pursuant to this Section 10
were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations
referred to in clause (i) and, if applicable, clause (ii) of subsection (c) above. Notwithstanding the provisions of this
Section 10, the Placement Agents shall not be required to contribute any amount in excess of the underwriting discounts and
commissions applicable to the Securities purchased by the Placement Agents and the liability of the Company pursuant to this Section 10
shall not exceed the total net proceeds (after underwriting discounts and commissions but before deducting the expenses described in
Section 8(a)) received by the Company in the offering. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The
provisions of this Section shall not affect any agreement among the Company with respect to indemnification.
Section 11. Representations,
Warranties and Agreements to Survive Delivery. All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries submitted pursuant hereto, shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of the Placement Agents or controlling person, or by or on
behalf of the Company, and shall survive delivery of the Securities to the Placement Agents.
Section 12. Termination
of Agreement.
(a) Termination;
General. The Placement Agents may terminate this Agreement, by written notice to the Company, as hereinafter specified at any time
(i) if there has been, since the time of execution of this Agreement or since the date as of which information is given in the Prospectus,
any Material Adverse Change, or (ii) if there has occurred any material adverse change in the financial markets in the United States
or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the reasonable judgment of the Placement Agents, impracticable or inadvisable to market the
Securities or to enforce contracts for the sale of the Securities, or (iii) if trading in the Common Stock has been suspended or
materially limited by the Commission or NASDAQ, or if trading generally on NASDAQ, the NYSE American LLC or the New York Stock Exchange
has been suspended or materially limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by order of the Commission, the FINRA or any other governmental authority, or a material disruption
has occurred in commercial banking or securities settlement or clearance services in the United States or in Europe, or (iv) if
a banking moratorium has been declared by either Federal or New York authorities.
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(b) Termination
by the Company. The Company shall have the right to terminate this Agreement in whole or as to any Placement Agent in its sole discretion
at any time after the date of this Agreement. Upon termination of this Agreement pursuant to this Section 12(b), any outstanding
Placement Notices (as amended by the corresponding Acceptance, if applicable) with respect to such Placement Agents or Agents, as may
be, shall also be terminated.
(c) Termination
by the Placement Agents. Any Placement Agent or all the Placement Agents shall have the right, by giving three (3) days notice
as hereinafter specified to terminate this Agreement in its sole discretion as to itself, and if all Placement Agents, as to the entire
agreement, at any time after the date of this Agreement.
(d) Automatic
Termination. Unless earlier terminated pursuant to this Section 12, this Agreement shall automatically terminate upon
the issuance and sale of Securities through the Placement Agents, on the terms and subject to the conditions set forth herein, with an
aggregate offering price equal to the Maximum Amount.
(e) Continued
Force and Effect. This Agreement shall remain in full force and effect unless terminated pursuant to Sections 12(a), (b),
(c) or (d) above or otherwise by mutual agreement of the parties.
(f) Effectiveness
of Termination. Any termination of this 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 the
Placement Agents or the Company, as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Placement
Securities, such Placement Securities shall settle in accordance with the provisions of this Agreement.
(g) Liabilities.
If this Agreement is terminated pursuant to this Section 12, such termination shall be without liability of any party to
any other party except as provided in Section 8 hereof, and except that, in the case of any termination of this Agreement,
Section 8, Section 10, Section 11, Section 16 and Section 19 hereof shall
survive such termination and remain in full force and effect.
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Section 13. Notices.
Except as otherwise provided in this Agreement, all notices
and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Placement Agents shall be directed to the Placement Agents at JonesTrading Institutional Services
LLC, 880 Island Park Drive, 3rd Floor, Charleston, SC 29492, Attention: Burke Cook, Email: legal@jonestrading.com;
BTIG, LLC, 350 Bush Street, San Francisco, California, 94104, Attention: Equity Capital Markets, Email: BTIGUSATMTrading@btig.com,
and with a copy (which shall not constitute notice) to: Attention: General Counsel and Chief Compliance Officer, Emails: BTIGCompliance@btig.com, IBLegal@btig.com;
and B. Riley Securities, Inc., 299 Park Ave, 21st Floor, New York, NY 10171, Attention: General Counsel, Email: atmdesk@brileysecurities.com,
with a copy to Skadden, Arps, Slate, Meagher & Flom LLP, One Manhattan West, New York, New York 10001, Attention: Michael Hong,
Email: Michael.Hong@skadden.com, and notices to the Company shall be directed to it at the offices of the Company at 90 Park Avenue,
New York, New York 10016, Attention: Kristine R. Nario-Eng, Chief Financial Officer, Email: KNario@adamasreit.com, with a copy to Vinson &
Elkins L.L.P., 2200 Pennsylvania Avenue NW, Suite 500 West, Washington, D.C. 20037, Attention: Christopher C. Green, Email: CGreen@velaw.com.
Section 14. Parties.
This Agreement shall inure to the benefit of and be binding upon the Placement Agents, the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other
than the Placement Agents, the Company and their respective successors and the controlling persons and officers and directors
referred to in Section 10 and their heirs and legal representatives, any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the Placement Agents, the Company and their respective successors, and said
controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person,
firm or corporation. No purchaser of Securities from the Placement Agents shall be deemed to be a successor by reason merely of such
purchase.
Section 15. Adjustments
for Stock Splits. The parties acknowledge and agree that all stock-related numbers contained in this Agreement shall be adjusted
to take into account any stock split, stock dividend or similar event effected with respect to the Securities.
Section 16. Governing
Law and Time. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES
OF DAY REFER TO NEW YORK CITY TIME.
Section 17. Effect
of Headings. The Section and Exhibit headings herein are for convenience only and shall not affect the construction hereof.
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Section 18. Permitted
Free Writing Prospectuses. The Company represents, warrants
and agrees that, unless it obtains the prior consent of the Placement Agents or is acting under advice of counsel in order to comply
with applicable securities laws, and the Placement Agents represent, warrant and agree that, unless they obtain the prior consent of
the Company, they have not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus,
or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 under the Securities Act, required
to be filed with the Commission. Any such free writing prospectus consented to by the Placement Agents or by the Company, as the case
may be, is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents and warrants
that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,”
as defined in Rule 433 under the Securities Act, and has complied and will comply with the requirements of Rule 433 under the
Securities Act applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending
and record keeping.
Section 19. Absence
of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) The
Placement Agents are acting solely as agent and/or principal in connection with the public offering of the Securities and in connection
with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship
between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other
party, on the one hand, and the Placement Agents, on the other hand, has been or will be created in respect of any of the transactions
contemplated by this Agreement, irrespective of whether or not the Placement Agents have advised or is advising the Company on other
matters, and the Placement Agents have no obligation to the Company with respect to the transactions contemplated by this Agreement except
the obligations expressly set forth in this Agreement;
(b) the
public offering price of the Securities was not established by the Placement Agents; it is capable of evaluating and understanding, and
understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the
Placement Agents have not provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated by this
Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it
is aware that the Placement Agents and their affiliates are engaged in a broad range of transactions which may involve interests that
differ from those of the Company and the Placement Agents have no obligation to disclose such interests and transactions to the Company
by virtue of any fiduciary, advisory or agency relationship or otherwise; and
(e) it
waives, to the fullest extent permitted by law, any claims it may have against the Placement Agents for breach of fiduciary duty or alleged
breach of fiduciary duty and agrees that the Placement Agents shall not have any liability (whether direct or indirect, in contract,
tort or otherwise) to it in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on its behalf or
in right of it or the Company, employees or creditors of Company.
39
Section 20. Recognition
of the U.S. Special Resolution Regimes.
(i) In
the event that any Placement Agent that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the
transfer from such Placement 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.
(ii) In
the event that any Placement Agent that is a Covered Entity or a BHC Act Affiliate of such Placement Agent becomes subject to a proceeding
under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Placement Agents 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.
(iii) For
purposes of this Section 20, 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.
40
Section 21. Termination
of Prior Agreement. Reference is hereby made to the
Equity Distribution Agreement, dated August 10, 2021 (the “Prior Agreement”), between the Company and
B. Riley Securities, Inc. Each of the Company and B. Riley Securities, Inc. (a) agree that, concurrently with the
effectiveness of this Agreement on the date hereof, the Prior Agreement shall automatically terminate, without any further action by
the parties thereto, but subject, however, to Section 12(g) of the Prior Agreement, which provides, among other things,
that certain terms and provisions of the Prior Agreement shall survive such termination and remain in full force and effect,
(b) waive any advance notice required by Section 12 of the Prior Agreement with respect to such termination and
(c) agree that, for purposes of clarity, no offers, sales or deliveries of shares of Securities may be made under or pursuant
to the Prior Agreement on or after the date of this Agreement except under the circumstances set forth in final sentence of
Section 12(f) of the Prior Agreement.
Section 22. Counterparts.
This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. Delivery of a signed counterpart of this Agreement by email (including
pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or facsimile transmission
shall constitute valid and sufficient delivery thereof.
[Signature Page Follows]
41
If the foregoing is in accordance with your understanding
of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement by and between the Placement Agents and the Company in accordance with its terms.
Very
truly yours,
Adamas
TRUST, INC.
By:
/s/
Jason Serrano
Name:
Jason Serrano
Title:
CEO
CONFIRMED
AND ACCEPTED, as of the date first above written:
JONESTRADING
INSTITUTIONAL SERVICES LLC
By:
/s/
Burke Cook
Name: Burke
Cook
Title: General
Counsel & Secretary
BTIG, LLC
By:
/s/ Jay Magee
Name: Jay Magee
Title: Managing Director
B. RILEY SECURITIES, INC.
By:
/s/ Michael Cavanagh
Name: Michael Cavanagh
Title: Managing
Director
42
EXHIBIT A
FORM OF PLACEMENT NOTICE
From:
[●]
Cc:
[●]
To:
[●]
Date:
[●]
Subject: Equity Distribution — Placement Notice
Ladies and Gentlemen:
Pursuant
to the terms and subject to the conditions contained in the Equity Distribution Agreement between Adamas Trust, Inc. (the “Company”)
and JonesTrading Institutional Services LLC, BTIG, LLC and B. Riley Securities, Inc. (each, a “Placement Agent”
and collectively, the “Placement Agents”) dated June 12, 2026 (the “Agreement”), I hereby
request on behalf of the Company that [Placement Agent] sell up to $[●] shares of the Company’s common stock, par value $0.01
per share, at a minimum market price of $[●] per share and a maximum market price of $[●] per share, beginning on [insert
start date] and ending on [insert end date] [such date in the future as notified in writing (including by email) by the Company].
[ADDITIONAL SALES PARAMETERS MAY BE ADDED,
SUCH AS THE MAXIMUM AGGREGATE OFFERING PRICE, SPECIFIC DATES THE SHARES MAY NOT BE SOLD ON, THE MAXIMUM NUMBER OF SHARES THAT MAY BE
SOLD ON ANY SINGLE DAY, THE MANNER IN WHICH SALES ARE TO BE MADE BY THE PLACEMENT AGENTS, AND/OR THE CAPACITY IN WHICH THE PLACEMENT
AGENTS MAY ACT IN SELLING SHARES (AS PRINCIPAL, AGENT, OR BOTH)]
EXHIBIT B
AUTHORIZED INDIVIDUALS FOR PLACEMENT NOTICES AND ACCEPTANCES
EXHIBIT C
COMPENSATION
The Placement Agents shall be paid compensation
to be agreed upon in an amount up to:
2.0% of the gross proceeds from the sales of Securities
pursuant to the terms of this Agreement.
EXHIBIT G
Certain Subsidiaries
New York Mortgage Trust 2005-1
New York Mortgage Trust 2005-2
New York Mortgage Trust 2005-3
NYM Preferred Trust I
NYM Preferred Trust II
NYMT Loan Trust 2022-CP1
NYMT Loan Trust 2022-INV1
NYMT Loan Trust 2024-CP1
NYMT Loan Trust, Series 2024-BPL2
NYMT Loan Trust, Series 2024-BPL3
NYMT Loan Trust 2024-INV1
NYMT 2024-RR1
NYMT Loan Trust 2025-CP1
NYMT Loan Trust 2025-INV1
NYMT Loan Trust 2025-INV2
NYMT Loan Trust 2026-INV1
NYMT Loan Trust 2026-INV2
NYMT Loan Trust 2026-INV3
EXHIBIT H
Issuer Free Writing Prospectus
None
EX-5.1 — EXHIBIT 5.1
EX-5.1
Filename: tm2617546d2_ex5-1.htm · Sequence: 3
Exhibit 5.1
June 12, 2026
Board of Directors
Adamas Trust, Inc.
90 Park Avenue
New York, New York 10016
Ladies and Gentlemen:
We have served as special
counsel to Adamas Trust, Inc., a Maryland corporation (the “Company”), in connection with the issuance and sale
by the Company, from time to time, pursuant to Rule 415 under the Securities Act of 1933, as amended (the “Securities Act”),
of up to $250,000,000 of shares of the Company’s common stock (the “Shares”), $0.01 par value per share (the
“Common Stock”), pursuant to the Equity Distribution Agreement, dated June 12, 2026 (the “Equity Distribution
Agreement”), by and among the Company, JonesTrading Institutional Services LLC, BTIG, LLC and B. Riley Securities, Inc.
The Shares have been registered on a Registration Statement on Form S-3 (File No. 333-290073), as filed with the Securities
and Exchange Commission (the “Commission”) on September 5, 2025 and declared effective by the Commission on September 16,
2025 (the “Registration Statement”) pursuant to the Securities Act.
In connection with the foregoing,
we have examined originals or copies, certified or otherwise identified to our satisfaction, of the following documents:
1. The
Registration Statement.
2. The
prospectus supplement, dated June 12, 2026, as filed with the Commission on June 12, 2026, pursuant to Rule 424(b) promulgated
under the Securities Act, together with the base prospectus dated September 16, 2025 (collectively, the “Prospectus”).
3. An
executed copy of the Equity Distribution Agreement.
Vinson & Elkins LLP Attorneys at Law
Austin Brussels Dallas Denver Dubai Dublin Houston London Los Angeles
New York Richmond San Francisco Tokyo Washington
2200 Pennsylvania Avenue NW, Suite 500 West
Washington, DC 20037-1701
Tel +1.202.639.6500 Fax +1.202.639.6604 velaw.com
June 12, 2026 Page 2
4. The Articles of Amendment
and Restatement of the Company certified by the State Department of Assessments and Taxation of the State of Maryland (the “SDAT”)
on January 5, 2026, as certified by the Secretary of the Company on the date hereof.
5. The
Fourth Amended and Restated Bylaws of the Company, effective as of September 3, 2025, as certified by the Secretary of the Company
on the date hereof.
6. Resolutions
adopted by the Board of Directors of the Company by unanimous written consent on September 4, 2025 and at a meeting duly held on
June 11, 2026, with respect to, among other things, the Company’s execution of the Equity Distribution Agreement and the issuance,
sale and due authorization of the Shares, as certified by the Secretary of the Company on the date hereof.
7. The
certificate of the SDAT as to the due incorporation, existence and good standing of the Company, dated June 11, 2026 (the “Maryland
Certificate”).
8. An
executed copy of a certificate of the Secretary of the Company, dated the date hereof, as to certain factual matters (the “Secretary’s
Certificate”).
For purposes of the opinions
expressed below, we have assumed (i) the authenticity of all documents and records and other papers submitted to us as originals,
(ii) the conformity to the originals of all documents and records and other papers submitted as certified or photostatic copies and
the authenticity of the originals thereof, (iii) the legal capacity of natural persons, (iv) the genuineness of all signatures
and (v) the due authorization, execution and delivery of all documents and records and other papers by all parties and the validity,
binding effect and enforceability thereof (other than the authorization, execution and delivery of documents and records and other papers
by the Company and the validity, binding effect and enforceability thereof upon the Company). As to factual matters, we have relied upon
the Secretary’s Certificate and upon certificates of public officials.
June 12, 2026 Page 3
Based upon the foregoing and
such other information and documents as we have considered necessary for the purposes hereof, we are of the opinion that:
1. The
Company is a corporation duly incorporated and existing under the laws of the State of Maryland, is in good standing with the SDAT and
has the corporate power and authority to issue the Shares.
2. The
issuance of the Shares has been duly authorized and, when and if issued and delivered by the Company upon payment therefor in accordance
with the Registration Statement, the Resolutions, the Charter and the Equity Distribution Agreement, the Shares will be validly issued,
fully paid and nonassessable.
The opinion with respect to
the incorporation, existence and good standing of the Company in the State of Maryland is based solely on the Maryland Certificate and
the Secretary’s Certificate.
We do not express an opinion
on any laws other than the laws of the State of Maryland. We express no opinion as to compliance with any federal or state securities
laws, including the securities laws of the State of Maryland, or as to federal or state laws regarding fraudulent transfers or the laws,
codes or regulations of any municipality or other local jurisdiction. To the extent that any matter as to which our opinion is expressed
herein would be governed by the laws of any jurisdiction other than the State of Maryland, we do not express any opinion on such matter.
The opinion expressed herein is subject to the effect of any judicial decision which may permit the introduction of parol evidence to
modify the terms or the interpretation of agreements.
We hereby consent to the filing
of this opinion as Exhibit 5.1 to a Current Report on Form 8-K to be filed with the Commission on the date hereof and to the
reference to this firm under the heading “Legal Matters” in the Prospectus. In giving this consent, we do not admit that we
are within the category of persons whose consent is required by Section 7 of the Securities Act or the rules and regulations
promulgated thereunder by the Commission.
This opinion is limited to
the matters stated in this letter, and no opinions may be implied or inferred beyond the matters expressly stated in this letter. The
opinions expressed in this letter speak only as of the date hereof. We do not undertake to advise you of any changes in the opinions expressed
herein from matters that might hereafter arise or be brought to our attention.
Very truly yours,
/s/ Vinson & Elkins L.L.P.
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