Exhibit 1.1
CIM COMMERCIAL
TRUST CORPORATION
Offering
of a maximum of
$786,401,275,
on an aggregate
basis, of
series a
preferred stock
and
series d
preferred stock
Second AMENDED
AND RESTATED
DEALER MANAGER AGREEMENT
This SECOND AMENDED AND RESTATED DEALER
MANAGER AGREEMENT (this “Agreement”) is entered into as of January 28, 2020, by and among CIM Commercial
Trust Corporation, a Maryland corporation (the “Company”), CIM Service Provider, LLC, a Delaware limited
liability company (the “Manager”), and CCO Capital, LLC, a Delaware limited liability company (the “Dealer
Manager”), in connection with the public offering (the “Offering”) by the Company of a
maximum of $786,401,275, on an aggregate basis, of shares of Series A Preferred Stock, par value $0.001 per share, of the Company
(“Series A Preferred Stock”) and shares of Series D Preferred Stock, par value $0.001 per share, of the
Company (“Series D Preferred Stock”). Shares of Series A Preferred Stock and Series D Preferred Stock
are referred to as “Preferred Shares”. Each of the Company, the Manager, and the Dealer Manager is from
time to time referred to as a “Party” and, collectively, the “Parties”.
WHEREAS, on July 1, 2016, the Company commenced
an offering of up to 36,000,000 units of the Company (the “Units”) at a purchase price of up to $25.00
per Unit (the “Prior Offering”), with each Unit consisting of (a) one share of Series A Preferred Stock
and (b) one warrant to purchase 0.25 of a share of common stock, par value $0.001 per share, of the Company (“Common
Stock”);
WHEREAS, the Prior Offering was conducted
pursuant to that certain registration statement on Form S-11 (Reg. No. 333-210880), as amended from time to time, and that
certain replacement registration statement on Form S-11 (Reg. No. 333-232232) pursuant to Rule 415 promulgated under the Securities
Act of 1933, as amended (the “Securities Act”);
WHEREAS, pursuant to the terms of the Dealer
Manager Agreement, dated as of June 28, 2016, as amended by Amendment No. 1 thereto, dated as of August 11, 2016, by and among
the Company, the Manager and International Assets Advisory, LLC (“IAA”), as assigned by IAA to the Dealer
Manager pursuant to that certain Amendment, Assignment and Assumption Agreement, effective as of May 31, 2019, by and among the
Company, the Manager, IAA and the Dealer Manager, and as amended and restated by the terms of the Amended and Restated Dealer Manager
Agreement, dated as of December 10, 2019 (the “A&R Agreement”), the Dealer Manager served as the
exclusive dealer manager of the Company with respect to the Prior Offering commencing on May 31, 2019;
WHEREAS, the Company desires to
terminate the Prior Offering and commence in its place the Offering under the shelf registration statement on Form S-3 (Reg.
No. 333-233255), declared effective by the U.S. Securities and Exchange Commission (the
“Commission”) on November 27, 2019 (the “Shelf Registration Statement”),
which Shelf Registration Statement registered an aggregate of up to $1,000,000,000 of newly issued (a) senior and
subordinated debt securities of the Company, (b) Common Stock, (c) shares of preferred stock, par value $0.001 per
share, of the Company (“Preferred Stock”), (d) warrants to purchase debt securities, Common
Stock, Preferred Stock or other securities or properties of the Company, (e) rights to purchase Common Stock, Preferred
Stock or other securities of the Company and (f) units comprised of two or more of the foregoing securities
(collectively, “Securities”); and
WHEREAS, the Company, the Manager and the
Dealer Manager desire that the Dealer Manager serve as the exclusive dealer manager of the Company with respect to the Offering.
NOW, THEREFORE, in consideration of foregoing
and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree
to amend and restate the A&R Agreement as follows:
1.
Appointment. Upon the terms and subject to the conditions contained
in this Agreement, the Company and the Dealer Manager hereby confirm the appointment of the Dealer Manager as the exclusive dealer
manager for the Offering. The Dealer Manager hereby agrees not to, and hereby agrees to instruct all Soliciting Dealers (as defined
below) not to, solicit or make any offers for the sale of Units under the Prior Offering following the date of this Agreement.
2.
Representations and Warranties of the Company. The Company hereby
represents and warrants to the Dealer Manager, as of the date of this Agreement and on each Effective Date (as defined below),
as follows:
(a) Registration Statement and Prospectus. The Company has filed with the Commission the Shelf Registration Statement
containing a base prospectus for the registration of the Preferred Shares under the Securities Act and the rules and regulations
of the Commission promulgated thereunder (the “Securities Act Rules and Regulations”). Except where the
context otherwise requires, the term “Registration Statement” shall refer to the most recently declared
effective of (i) the Shelf Registration Statement, (ii) any subsequent registration statement in respect of the Offering
filed with the Commission pursuant to Rule 415(a)(6) under the Securities Act, from and after the declaration of the effectiveness
of such subsequent registration statement, and (iii) any post-effective amendment to the Shelf Registration Statement or any
subsequent registration statement in respect of the Offering filed with the Commission, in each case from and after the declaration
of effectiveness of such post-effective amendment or subsequent registration statement, and in each case 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 the Securities Act Rules and Regulations. The term
“Prospectus” shall refer to the base prospectus contained in the Registration Statement, as supplemented
from time to time. The term “preliminary Prospectus” shall refer to a preliminary prospectus related
to the Offering prior to the final determination of pricing terms included at any time as part of the Registration Statement. As
used herein, the terms “Registration Statement”, “Prospectus” and “preliminary Prospectus”
shall include the documents, if any, incorporated or deemed to be incorporated by reference therein. Except where the context otherwise
requires, the term “Effective Date” shall refer to the effective date of the Registration Statement.
(b)
Documents Incorporated by Reference. The documents incorporated or deemed to be incorporated by reference
in the Prospectus (if any), at the time they were filed with the Commission, complied in all material respects with the requirements
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations
promulgated thereunder (the “Exchange Act Rules and Regulations”), and did not include an untrue statement
of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading.
(c) Compliance with the Securities Act, Etc.
(i)
On (A) each applicable Effective Date of each Registration Statement, (B) the date of the preliminary Prospectus
as to the preliminary Prospectus, (C) the date of each Prospectus as to the Prospectus, and (D) the date any supplement
to the Prospectus is filed with the Commission as to such supplement, the Registration Statement, the Prospectus and any amendments
or supplements thereto, as applicable, have complied, and will comply, in all material respects with the Securities Act, the Securities
Act Rules and Regulations, the Exchange Act and the Exchange Act Rules and Regulations, as applicable; and
(ii)
The Shelf Registration Statement does not, and any future Registration Statement will not, in each case as of the
applicable Effective Date, include any untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and the Prospectus does not, and any amendment or supplement
thereto will not, as of the applicable filing date, include any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they
are made, not misleading;
provided, however, that the foregoing provisions
of this Section 2(c) will not extend to any statements contained in, incorporated by reference in or omitted from the Registration
Statement, the Prospectus or any amendment or supplement thereto that are based upon written information furnished to the Company
by the Dealer Manager expressly for use therein.
(d) Securities Matters. There has not been (i) any request by the Commission for any further amendment to
the Registration Statement or the Prospectus or for any additional information in respect of the Offering that has not been complied
with, (ii) any issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or
the institution or, to the Company’s knowledge, threat of any proceeding for that purpose, or (iii) any notification
with respect to the suspension of the qualification of the Preferred Shares for sale in any jurisdiction or any initiation or,
to the Company’s knowledge, threat of any proceeding for such purpose. The Company is in compliance in all material respects
with all federal and state securities laws, rules and regulations applicable to it and its activities, including, without limitation,
with respect to the Offering and the sale of the Preferred Shares.
(e)
Company Status. The Company is a corporation duly incorporated and validly existing under the general laws
of the State of Maryland, with all requisite power and authority to enter into this Agreement and to carry out its obligations
hereunder.
(f)
Authorization of Agreement. This Agreement has been duly and validly authorized, executed and delivered by
or on behalf of the Company and, assuming due authorization, execution and delivery of this Agreement by the Dealer Manager, will
constitute a valid and binding agreement of the Company enforceable in accordance with its terms (except as such enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws of the United States, any state or any
political subdivision thereof which affect creditors’ rights generally or by equitable principles relating to the availability
of remedies or except to the extent that the enforceability of the indemnity and contribution provisions contained in this Agreement
may be limited under applicable securities laws).
The execution and delivery of this
Agreement by the Company and the performance of this Agreement by the Company and the consummation of the transactions
contemplated herein, do not and will not conflict with, or result in a breach of any of the terms and provisions of, or
constitute a default under: (i) the Company’s or any of its subsidiaries’ charter, by-laws, or other
organizational documents, as applicable; (ii) any indenture, mortgage, stockholders’ agreement, note, lease or
other material agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries or any of their properties is bound; or (iii) any statute, rule or regulation or order of any
court or other governmental agency or body having jurisdiction over the Company, any of its subsidiaries or any of their
properties, except in the case of clause (ii) or (iii), for such conflicts, breaches or defaults that do not result in and
would not reasonably be expected to result in, individually or in the aggregate, a Company MAE (as defined below in this Section 2(f)).
No consent, approval, authorization or order of any court or other governmental agency or body has been obtained by the
Company or is required for the performance of this Agreement by the Company or for the consummation by the Company of any of
the transactions contemplated hereby, other than (A) such as have been obtained or will have been obtained at the Effective
Date under the Securities Act or the Exchange Act, or from the Financial Industry Regulatory Authority, Inc.
(“FINRA”), (B) as may be required under state securities or applicable blue sky laws in connection
with the offer and sale of the Preferred Shares or under the laws of states in which the Company may own real properties in
connection with its qualification to transact business in such states or as may be required by subsequent events which may
occur or (C) any such approvals the failure of which to obtain would not reasonably be expected to result in, individually or
in the aggregate, a Company MAE. Neither the Company nor any of its subsidiaries is in violation of its charter, by-laws or
other organizational documents, as applicable, in any material respect.
As used in this Agreement, “Company
MAE” means any event, circumstance, occurrence, fact, condition, change or effect, individually or in the aggregate,
that is materially adverse to (A) the financial condition, business affairs, properties or results of operations of the Company
and its subsidiaries considered as one enterprise, or (B) the ability of the Company to perform its obligations under this
Agreement or the validity or enforceability of this Agreement or the Preferred Shares; provided, however, that clause
(A) excludes any development resulting from any event, circumstance, development, change or effect (1) in general economic
or business conditions, (2) in financial or securities markets generally, or (3) generally affecting the business or industry
in which the Company operates.
(g)
Actions or Proceedings. As of the date of this Agreement, there are no actions,
suits or proceedings against, or investigations of, the Company or its subsidiaries pending or, to the knowledge of the Company,
threatened, before any court, arbitrator, administrative agency or other tribunal (i) asserting the invalidity of this Agreement,
(ii) seeking to prevent the issuance of the Preferred Shares or the consummation of any of the transactions contemplated by
this Agreement, (iii) that would reasonably be expected to materially and adversely affect the performance by the Company
of its obligations under, or the validity or enforceability of, this Agreement or the Preferred Shares, (iv) that would reasonably
be expected to result in a Company MAE, or (v) seeking to affect materially and adversely the U.S. federal income tax attributes
of the Preferred Shares, except as described in the Prospectus. The Company promptly will give notice to the Dealer Manager of
the occurrence of any action, suit, proceeding or investigation of the type referred to in this Section 2(g) arising
or occurring on or after the date of this Agreement.
(h)
Sales Literature. Any supplemental sales literature or advertisement (including without limitation any “broker-dealer
use only” material), regardless of how labeled or described, used in addition to the Prospectus in connection with the Offering
which previously has been, or hereafter is, furnished or approved by the Company (collectively, “Approved Sales Literature”),
shall, to the extent required, be filed with and approved by the appropriate securities agencies and bodies, provided that the
Dealer Manager will make all FINRA filings, to the extent required. Any and all Approved Sales Literature, taken together with
the Prospectus as then supplemented or amended, did not or will not at the time provided for use include any untrue statement of
a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(i)
Authorization of Preferred Shares. The Preferred Shares have been duly authorized and, when issued and sold
as contemplated by the Prospectus and upon payment therefor as provided in this Agreement and the Prospectus, will be validly issued,
fully paid and nonassessable and will conform in all material respects to the description thereof contained in the Prospectus.
The shares of Common Stock that may be issued upon redemption of the Preferred Shares have been duly authorized and, when issued
as contemplated by the Prospectus, will be validly issued, fully paid and nonassessable and will conform in all material respects
to the description thereof contained in the Prospectus.
(j)
Taxes. Any taxes, fees and other governmental charges in connection with the execution and delivery of this
Agreement or the execution, delivery and sale of the Preferred Shares have been or will be paid when due.
(k)
Investment Company. The Company is not, and after giving effect to the offer and sale of the Preferred Shares
will not be, an “investment company”, as such term is defined in the Investment Company Act of 1940, as amended.
(l) Tax
Returns. Except as described in the Registration Statement and Prospectus, the Company has filed all federal, state and foreign
income tax returns required to be filed by or on behalf of the Company on or before the due dates therefor (taking into account
all extensions of time to file), except where failure to file such returns would not reasonably be expected to result in a Company
MAE and has paid or provided for the payment of all such taxes indicated by such tax returns and all assessments received by the
Company to the extent that such taxes or assessments have become due, except for any such taxes that are currently being contested
in good faith or as would not reasonably be expected to result in a Company MAE.
(m)
REIT Qualifications. The Company is organized and, since the date of its inception for federal income tax
purposes, has operated in conformity with the requirements for qualification and taxation as a real estate investment trust (“REIT”).
The Company intends to continue to operate in a manner that would permit it to continue to meet the requirements for qualification
and taxation as a REIT under the Internal Revenue Code of 1986, as amended (the “Code”).
(n)
Independent Registered Public Accounting Firm. BDO USA, LLP, which has certified certain financial statements
appearing in the Prospectus, is an independent registered public accounting firm within the meaning of the Securities Act and the
Securities Act Rules and Regulations.
The Company and its subsidiaries each maintains
a system of internal accounting and other controls sufficient to provide reasonable assurances that: (i) transactions are
executed in accordance with general or specific authorizations of the Company’s management; (ii) transactions are recorded
as necessary to permit preparation of the Company’s financial statements in conformity with generally accepted accounting
principles as applied in the United States (“GAAP”) and to maintain accountability for assets; (iii) access
to assets is permitted only in accordance with general or specific authorization of the Company’s management or directors
or the Manager; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
Except as described in the Registration
Statement, since the end of the Company’s most recent audited fiscal year, there has been (A) no material weakness in the
Company’s internal control over financial reporting (whether or not remediated), and (B) no significant changes in the Company’s
internal control over financial reporting that has materially adversely affected, or is reasonably likely to materially adversely
affect, the Company’s internal control over financial reporting.
(o)
Preparation of the Financial Statements. The financial statements filed with the Commission as a part of the
Registration Statement and included in or incorporated by reference into the Prospectus present fairly in all material respects
the consolidated financial position of the Company and its subsidiaries as of and at the dates indicated and the results of their
operations and cash flows for the periods specified. Such financial statements have been prepared in conformity with GAAP applied
on a consistent basis throughout the periods involved, except as may be expressly stated in the related notes thereto. No pro forma
financial statements or supporting schedules other than those included in or incorporated by reference into the Registration Statement
or any applicable Prospectus are required to be included in the Registration Statement or any applicable Prospectus.
(p)
Material Adverse Change. Since the respective dates as of which information is given in the Registration Statement
and the Prospectus, except as may otherwise be stated therein or contemplated thereby, there has not occurred a Company MAE, whether
or not arising in the ordinary course of business.
(q)
Government Permits. The Company and its subsidiaries possess such certificates, authorities or permits issued
by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct the business now operated by them,
other than those which the failure to possess or own would not have, individually or in the aggregate, reasonably be expected to
result in, a Company MAE. Neither the Company nor any of its subsidiaries has received any written notice of proceedings relating
to the revocation or modification of any such certificate, authority or permit which, individually or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in a Company MAE.
(r)
Properties. Except as otherwise disclosed in the Prospectus and except as would not reasonably be expected
to result in, individually or in the aggregate, a Company MAE, (i) all properties and assets described in the Prospectus are
owned with good and marketable title by the Company or one or more of its subsidiaries, and (ii) all liens, charges, encumbrances,
claims or restrictions on or affecting any of the properties and assets of the Company or any of its subsidiaries which are required
to be disclosed in the Prospectus are disclosed therein.
(s)
Hazardous Materials. The Company does not have any knowledge of (i) the unlawful presence of any hazardous
substances, hazardous materials, toxic substances or waste materials (collectively, “Hazardous Materials”)
on any of the properties owned by it or its subsidiaries or subject to mortgage loans owned by the Company or any of its subsidiaries,
or (ii) any unlawful spills, releases, discharges or disposal of Hazardous Materials that have occurred or are presently occurring
off such properties as a result of any construction on or operation and use of such properties, which presence or occurrence in
the case of clauses (i) and (ii) would reasonably be expected to result in, individually or in the aggregate, a Company
MAE. In connection with the properties owned by the Company and its subsidiaries or subject to mortgage loans owned by the Company
or any of its subsidiaries, the Company has no knowledge of any failure to comply with all applicable local, state and federal
environmental laws, regulations, ordinances and administrative and judicial orders relating to the generation, recycling, reuse,
sale, storage, handling, transport and disposal of any Hazardous Materials, except where such failure to comply would not reasonably
be expected to result in a Company MAE.
(t) Authorization
of the MSA. The Manager is the current manager of the Company and provides services to the Company pursuant to the Master
Services Agreement, dated as of March 11, 2014 (the “MSA”), by and between the Company and the
Manager. The MSA has been duly and validly authorized, executed and delivered by or on behalf of the Company and constitutes
a valid and binding agreement of the Company enforceable in accordance with its terms (except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws of the United States, any state or any
political subdivision thereof which affect creditors’ rights generally or by equitable principles relating to the
availability of remedies or except to the extent that the enforceability of the indemnity and contribution provisions
contained in such agreement may be limited under applicable securities laws).
(u)
Relationships with FINRA Members. Except as described in the applicable Registration Statement and Prospectus,
neither the Company nor any subsidiary of the Company directly or indirectly controls, is controlled by, or is under common control
with, or is an associated person (within the meaning of Article I, Section 1(ee) of the By-laws of FINRA) of, any member firm of
FINRA.
3.
Representations and Warranties of the Manager. The Manager hereby represents
and warrants to the Dealer Manager, as of the date of this Agreement and on each Effective Date, as follows:
(a)
Organization Status. The Manager is a limited liability company duly formed, validly existing and in good
standing under the laws of the State of Delaware.
(b)
Authorization of the MSA. The MSA has been duly and validly authorized, executed and delivered by or on behalf
of the Manager and constitutes a valid and binding agreement of the Manager enforceable in accordance with its terms (except as
such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws of the United States,
any state or any political subdivision thereof which affect creditors’ rights generally or by equitable principles relating
to the availability of remedies or except to the extent that the enforceability of the indemnity and contribution provisions contained
in such agreement may be limited under applicable securities laws).
(c)
Actions or Proceedings. As of the date of this Agreement, 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 Manager, threatened against the Manager (i) asserting the invalidity of this Agreement, (ii) seeking to prevent
the issuance of the Preferred Shares or the consummation of any of the transactions contemplated by this Agreement, (iii) that
would reasonably be expected to materially and adversely affect the validity or enforceability of this Agreement or the Preferred
Shares, (iv) that would reasonably be expected to result in a Company MAE, or (v) seeking to affect adversely the U.S.
federal income tax attributes of the Preferred Shares, except as described in the Prospectus.
(d)
Government Permits. The Manager possesses such certificates, authorities or permits issued by the appropriate
state, federal or foreign regulatory agencies or bodies necessary to conduct the business now operated by it, other than those
which the failure to possess or own would not have, individually or in the aggregate, reasonably be expected to result in (i) a
material adverse effect on the financial condition, business affairs, properties or results of operations of the Manager, (ii) a
Company MAE or (iii) a material adverse effect on the performance of the services under the Management Agreement by the Manager.
The Manager has not received any written notice of proceedings relating to the revocation or modification of any such certificate,
authority or permit, which, individually or in the aggregate, if subject of an unfavorable decision, ruling or finding, would reasonably
be expected to result in (A) a material adverse effect on the financial condition, business affairs, properties or results
of operations of the Manager, (B) a Company MAE or (C) a material adverse effect on the performance of the services under
the Management Agreement by the Manager.
4.
Representations and Warranties of the Dealer Manager. The Dealer
Manager hereby represents and warrants to the Company, as of the date of this Agreement and on each Effective Date, as follows:
(a)
Organization Status. The Dealer Manager is a limited liability company duly formed, validly existing and in
good standing under the laws of the State of Delaware, with all requisite power and authority to enter into this Agreement and
to carry out its obligations hereunder.
(b)
Authorization of Agreement. This Agreement has been duly and validly authorized, executed and delivered by
the Dealer Manager, and assuming due authorization, execution and delivery of this Agreement by the Company and the Manager, will
constitute a valid and legally binding agreement of the Dealer Manager enforceable against the Dealer Manager in accordance with
its terms (except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws of the United States, any state or any political subdivision thereof which affect creditors’ rights generally or by
equitable principles relating to the availability of remedies or except to the extent that the enforceability of the indemnity
and contribution provisions contained in this Agreement may be limited under applicable securities laws).
(c) Absence of Conflict or Default. The execution and delivery of this Agreement by the Dealer Manager and the
performance of this Agreement by the Dealer Manager and the consummation of the transactions contemplated herein, do not and will
not conflict with, or result in a breach of any of the terms and provisions of, or constitute a default under: (i) the Dealer
Manager’s articles of formation, bylaws or other organizational documents, as applicable, (ii) any indenture, mortgage,
stockholders’ agreement, note, lease or other material agreement or instrument to which the Dealer Manager is a party or
by which the Dealer Manager may be bound, or to which any of the property or assets of the Dealer Manager is subject, or (iii) any
rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having
jurisdiction over the Dealer Manager or its assets, properties or operations, except in the case of clause (ii) or (iii), for
such conflicts or defaults that would not, individually or in the aggregate, have or reasonably be expected to have a material
adverse effect on the financial condition, business affairs, properties or results of operations of the Dealer Manager.
(d)
Broker-Dealer Registration; FINRA Membership. The Dealer Manager is, and during the term of this Agreement
will be, (i) duly registered as a broker-dealer pursuant to the provisions of the Exchange Act, (ii) a member in good
standing of FINRA, and (iii) a broker or dealer duly registered as such in those states where the Dealer Manager is required
to be registered in order to carry out the Offering as contemplated by this Agreement and the Prospectus. Each of the Dealer Manager’s
employees and representatives has all required licenses and registrations to act under this Agreement and to carry out the Offering
as contemplated thereby. There is no provision in the Dealer Manager’s FINRA membership agreement that would restrict the
ability of the Dealer Manager to carry out the Offering as contemplated by this Agreement and the Prospectus.
(e)
Disclosure. The information under the caption “Plan of Distribution” in the Prospectus insofar
as it relates to the Dealer Manager, and all other information furnished to the Company by the Dealer Manager in writing specifically
for use in the Registration Statement, any preliminary Prospectus or the Prospectus, does not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading.
5. Offering
and Sale of the Preferred Shares. Upon the terms and subject to the conditions set
forth in this Agreement, the Company confirms the appointment of the Dealer Manager as its agent and exclusive
distributor to solicit securities dealers to solicit subscriptions for the Preferred Shares in
connection with the Offering at the subscription price to be paid in cash (the “Soliciting
Dealers”) and to retain the Soliciting Dealers now or hereafter subject to Soliciting Dealer Agreements (as
defined below). Upon the terms and subject to the conditions set forth in this Agreement, the Dealer Manager hereby confirms
its acceptance of such agency and exclusive distributorship and agrees to use its reasonable best efforts during the Offering
Period (as defined below) or until this Agreement is earlier terminated pursuant to Section 12 to sell or cause to be
sold the Preferred Shares in such quantities and to such Persons in accordance with such terms as are set forth in this
Agreement, the Prospectus and the Registration Statement. As used herein, “Person” means any
individual, firm, corporation, partnership, trust, incorporated or unincorporated association, joint venture, joint stock
company, limited liability company, governmental authority or agency, or other entity of any kind.
For purposes of this Agreement, “Offering
Period” shall mean the period commencing on the date hereof and ending on the date on which the Company has
sold and issued $786,401,275, on an aggregate basis, of Series A Preferred Stock and Series D Preferred Stock in the Offering.
During the period from the date hereof until the end of the Offering Period (or the earlier termination of this Agreement by the
Company or the Dealer Manager pursuant to Section 12), the Company will not (and will cause its affiliates to not)
engage or appoint any Person other than the Dealer Manager to solicit, or to retain any securities dealers to solicit, subscriptions
for the Preferred Shares in a public offering.
The number of Preferred Shares, if any,
to be reserved for sale by each Soliciting Dealer may be determined, from time to time, by the Dealer Manager upon prior approval
of the Company. In the absence of such determination, the Company shall, subject to the provisions of Section 5(b), accept
Subscription Agreements based upon a first-come, first accepted reservation or other similar method. Under no circumstances will
the Dealer Manager be obligated to underwrite or purchase any Preferred Shares for its own account. In soliciting purchases of
Preferred Shares, the Dealer Manager will act solely as the Company’s agent and not as an underwriter or principal.
(a)
Soliciting Dealers. The Preferred Shares offered and sold through the Dealer Manager under this Agreement
shall be offered and sold only by the Dealer Manager and the Soliciting Dealers; provided, however, that (i) all Soliciting
Dealers are registered with the Commission, are members in good standing of FINRA and are duly licensed or registered by the regulatory
authorities in the jurisdictions in which they offer and sell Preferred Shares or are exempt from broker-dealer registration with
the Commission and all other applicable regulatory authorities, (ii) all Soliciting Dealers may lawfully offer and sell Preferred
Shares in the jurisdiction in which they offer and sell Preferred Shares, (iii) all such engagements are evidenced by written
agreements, the terms and conditions of which substantially conform to the form of Soliciting Dealer Agreement approved by the
Company and the Dealer Manager (the “Soliciting Dealer Agreement”), and (iv) the Company shall have
previously approved each Soliciting Dealer (such approval not to be unreasonably withheld or delayed).
(b)
Subscription Documents. Each Person desiring to purchase Preferred Shares through the Dealer Manager, or any
other Soliciting Dealer, will be required to complete and execute the subscription documents described in the Prospectus.
(c) Completed
Sale. A sale of a Preferred Share shall be deemed by the Company to be completed for purposes of Section 5(d) if
and only if (i) the Company has received payment of the full purchase price of each purchased Preferred Share and, in
the case Direct Registration Service is used for settlement, a properly completed and executed subscription agreement from an
investor who satisfies the applicable suitability standards and minimum purchase requirements set forth in the Prospectus as
determined by the Soliciting Dealer, or the Dealer Manager, as applicable, in accordance with the provisions of this
Agreement, (ii) the Company or its agent has accepted such subscription, and (iii) such investor has been admitted
as a stockholder of the Company. In addition, no sale of Preferred Shares shall be completed until at least five business
days after the date on which the subscriber receives a copy of the Prospectus. The Dealer Manager hereby acknowledges and
agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for
any reason whatsoever or no reason, and no commission or dealer manager fee will be paid to the Dealer Manager with respect
to that portion of any subscription which is rejected. As used in this Agreement, “business day”
means any day other than a Saturday, Sunday or a day on which banking institutions in the State of New York, the State of
Texas or the State of California are authorized or obligated by law or executive order to close.
(d)
Dealer-Manager Compensation.
(i)
Subject to the discounts and other special circumstances described in or otherwise provided in the “Plan of
Distribution” section of the Prospectus or this Section 5(d), the Company will pay to the Dealer Manager selling commissions
in the amount of up to five and fifty one-hundredths of a percent (5.50%) of the selling price of each share of Series A Preferred
Stock for which a sale is completed in the Offering; provided, however, no selling commissions will be paid in respect of certain
sales of shares of Series A Preferred Stock to persons affiliated with the Company as described in the Prospectus. The Dealer Manager
will reallow all the selling commissions, subject to federal and state securities laws, to the Soliciting Dealers who sell the
relevant shares of Series A Preferred Stock in the Offering, as described more fully in the Soliciting Dealer Agreement. No selling
commissions will be paid in respect of any shares of Series D Preferred Stock sold in the Offering.
(ii)
Subject to the special circumstances described in or otherwise provided in the “Plan of Distribution”
section of the Prospectus or this Section 5(d), as compensation for acting as the dealer manager, the Company will pay to
the Dealer Manager an upfront dealer manager fee in the amount of one and one-quarter of a percent (1.25%) of the selling price
of each Preferred Share for which a sale is completed in the Offering (the “Upfront Dealer Manager Fee”);
provided, however, the Upfront Dealer Manager Fee will be one percent (1.00%) of the selling price of each Preferred Share sold
to certain persons affiliated with the Company as described in the Prospectus. The Dealer Manager may retain or re-allow all or
a portion of the Upfront Dealer Manager Fee, subject to federal and state securities laws, to the Soliciting Dealer who sold the
relevant Preferred Shares, as described more fully in the Soliciting Dealer Agreement.
(iii)
Except as otherwise provided in the “Plan of Distribution” section of the Prospectus or this Section
5(d), as compensation for acting as the dealer manager, the Company will pay to the Dealer Manager a trailing dealer manager fee
per Preferred Share that accrues daily, from the date of original issuance of such Preferred Share until the earliest to occur
of (A) the date on which such Preferred Share is no longer outstanding and (B) the date on which the Company determines
that payment of such fee would cause the total underwriting compensation (as described below in Section 5(d)(v)) in respect
of the Offering to exceed 10.00% of the aggregate gross proceeds of Preferred Shares sold in the Offering, in the amount of 1/365th
of one-quarter of a percent (0.25%) per annum of the selling price of each Preferred Share for which a sale is completed in
the Offering (the “Trailing Dealer Manager Fee” and, together with the Upfront Dealer Manager Fee, the
“Dealer Manager Fees”).
(iv)
The Upfront Dealer Manager Fee and any selling commissions payable to the Dealer Manager will be paid on the day
the investor subscribing for the relevant Preferred Share is admitted as a stockholder of the Company, or as promptly thereafter
as practical. The Trailing Dealer Manager Fee will be paid monthly in arrears and will be paid on a continuous basis from year
to year on the terms and subject to the conditions set forth in the Prospectus or this Section 5(d).
(v)
In no event shall the total aggregate compensation payable from any source to (A) the Dealer Manager and any
Soliciting Dealers participating in the Offering, including, but not limited to, selling commissions and the Dealer Manager Fees,
and (B) other expenses incurred by the Dealer Manager or Soliciting Dealers associated with the Offering that are paid by or reimbursed
by the Company, Manager or other Person and which are deemed components of “underwriting compensation” by FINRA exceed
ten percent (10.0%) of the aggregate gross offering proceeds of the Offering.
(vi)
Notwithstanding anything to the contrary contained herein, if the Company pays any selling commission to the Dealer
Manager for sale by a Soliciting Dealer of one or more Preferred Shares and the subscription is rescinded as to one or more of
the Preferred Shares covered by such subscription, then the Company shall decrease the next payment of selling commissions or other
compensation otherwise payable to the Dealer Manager by the Company under this Agreement by an amount equal to the commission rate
established in this Section 5(d), multiplied by the number of Preferred Shares as to which the subscription is rescinded.
If no payment of selling commissions or other compensation is due to the Dealer Manager after such rescission occurs, then the
Dealer Manager shall pay the amount specified in the preceding sentence to the Company within a reasonable period of time not to
exceed fifteen (15) days following receipt of notice by the Dealer Manager from the Company stating the amount owed as a result
of rescinded subscriptions.
(vii)
Reasonable Bona Fide Due Diligence Expenses. In addition to compensation payable to the Dealer Manager or any Soliciting
Dealer, but subject to the next sentence, the Company or the Manager shall reimburse the Dealer Manager or any Soliciting Dealer
for reasonable bona fide due diligence expenses incurred by the Dealer Manager or any Soliciting Dealer. The Company shall
only reimburse the Dealer Manager or any Soliciting Dealer for any bona fide due diligence expenses to the extent such expenses
have been approved in each case by the Company in advance, actually been incurred and are supported by detailed and itemized invoice(s)
provided to the Company and permitted pursuant to the rules and regulations of FINRA.
6.
Conditions to the Dealer Manager’s Obligations. The Dealer
Manager’s obligations hereunder shall be subject to the following terms and conditions:
(a)
The representations and warranties on the part of the Company contained in this Agreement shall be true and correct
in all material respects and the Company shall have complied with its covenants, agreements and obligations contained in this Agreement
in all material respects.
(b)
The Registration Statement shall be effective and no stop order suspending the effectiveness of the Registration
Statement shall have been issued by the Commission and, to the knowledge of the Company, no proceedings for that purpose shall
have been instituted, threatened or contemplated by the Commission; and any request by the Commission for additional information
(to be included in the Registration Statement or Prospectus or otherwise) shall have been complied with to the reasonable satisfaction
of the Dealer Manager.
(c)
The Prospectus, as then supplemented or amended, shall not contain any untrue statement of material fact, or omit
to state a material fact that is required to be stated therein or is necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
7.
Covenants of the Company. The Company covenants and agrees with the
Dealer Manager as follows (and, where applicable, the Dealer Manager covenants and agrees with the Company):
(a)
Registration Statement. The Company will use commercially reasonable efforts to maintain the effective status
of the Registration Statement. The Company will comply in all material respects with all federal and state securities laws, rules
and regulations which are required to be complied with in order to permit the continuance of offers and sales of the Preferred
Shares in accordance with the provisions hereof and of the Prospectus.
(b)
Commission Orders. If the Commission shall issue any stop order or any other order preventing or suspending
the use of the Prospectus, or to the Company’s knowledge, shall institute any proceedings for that purpose, then the Company
will promptly notify the Dealer Manager and use commercially reasonable efforts to prevent the issuance of any such order and,
if any such order is issued, to use commercially reasonable efforts to obtain the removal thereof as promptly as possible.
(c)
Blue Sky Qualifications. The Company will use commercially reasonable efforts to qualify the Preferred Shares
for offering and sale under the securities or blue sky laws of such jurisdictions as the Dealer Manager and the Company shall mutually
agree upon and to make such applications, file such documents and furnish such information as may be reasonably required for that
purpose. The Company will, at the Dealer Manager’s request, furnish the Dealer Manager with a copy of such papers filed by
the Company in connection with any such qualification. The Company will promptly advise the Dealer Manager of the issuance by such
securities administrators of any stop order preventing or suspending the use of the Prospectus or to the Company’s knowledge
of the institution of any proceedings for that purpose, and will use commercially reasonable efforts to prevent the issuance of
any such order and if any such order is issued, to use commercially reasonable efforts to obtain the removal thereof as promptly
as possible. The Dealer Manager will cause its outside counsel to furnish it and the Company with supplements to an initial Blue
Sky Survey, dated as of each initial Effective Date, reflecting any changes or additions to the information disclosed in such survey.
(d)
Amendments and Supplements. If, at any time when a Prospectus relating to the Preferred Shares (or any portion
thereof) is required to be delivered under the Securities Act, any event shall have occurred to the knowledge of the Company as
a result of which the Prospectus as then supplemented or amended or any Approved Sales Literature as then amended or supplemented,
taken together with the Prospectus as then supplemented or amended, would include any untrue statement of a material fact, or omit
to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not
misleading at the time it is so required to be delivered to a subscriber, or if it is necessary at any time to amend the Registration
Statement or supplement the Prospectus relating to the Preferred Shares (or any portion thereof) to comply with the Securities
Act, then the Company will reasonably promptly notify the Dealer Manager thereof (unless the information shall have been received
from the Dealer Manager) and will prepare and file with the Commission an amendment or supplement which will correct such statement
or effect such compliance to the extent required, and shall make available to the Dealer Manager thereof sufficient copies for
its own use and/or distribution to the Soliciting Dealers.
(e)
Requests From Commission. The Company will promptly advise the Dealer Manager of any request made by the Commission
or a state securities administrator for amending the Registration Statement, supplementing the Prospectus or for additional information
in connection with the Offering.
(f) Copies
of Registration Statement. The Company will furnish the Dealer Manager with such copies of the Registration Statement and
the Prospectus, and all amendments and supplements thereto, as the Dealer Manager may reasonably request in connection with
the sale of the Preferred Shares.
(g)
Authority to Perform Agreements. The Company undertakes to obtain all consents, approvals, authorizations
or orders of any court or governmental agency or body which are required for the Company’s performance of this Agreement
and under the Company’s articles of incorporation (as the same may be amended, supplemented or otherwise modified from time
to time) and by-laws for the consummation of the transactions contemplated hereby.
(h)
Sales Literature. The Company will furnish to the Dealer Manager as promptly as shall be reasonably practicable
upon request any Approved Sales Literature (provided that the use of said material has been first approved for use by all appropriate
regulatory agencies). Any supplemental sales literature or advertisement, regardless of how labeled or described, used in addition
to the Prospectus in connection with the Offering which is furnished or approved by the Company (including, without limitation,
Approved Sales Literature) shall, to the extent required, be filed with and, to the extent required, approved by the appropriate
securities agencies and bodies, provided that the Dealer Manager will make all FINRA filings, to the extent required. The Company
will be responsible for all Approved Sales Literature. The Company and the Dealer Manager agree that all sales literature developed
in connection with the Offering shall be the property of the Company and the Company shall have control of all such sales literature.
Each of the Company and the Manager will not (and will cause its affiliates to not): (i) show or give to any investor or prospective
investor or reproduce any material or writing that is marked “broker-dealer use only” or otherwise bearing a legend
denoting that it is not to be used in connection with the sale of Preferred Shares to members of the public, and (ii) show
or give to any investor or prospective investor in a particular jurisdiction any material or writing if such material bears a legend
denoting that it is not to be used in connection with the sale of Preferred Shares to members of the public in such jurisdiction.
(i)
Certificates of Compliance. The Company shall provide, from time to time upon reasonable request of the Dealer
Manager, certificates of its chief executive officer and chief financial officer of compliance by the Company of the requirements
of this Agreement.
(j)
Use of Proceeds. The Company will apply the proceeds from the sale of the Preferred Shares as set forth in
the Prospectus in all material respects.
(k)
Certain Payments. Without the prior consent of the Dealer Manager, neither the Company nor the Manager will
make any payment (cash or non-cash) to any associated Person or registered representative of the Dealer Manager.
8.
Covenants of the Dealer Manager. The Dealer Manager covenants and
agrees with the Company as follows (and, where applicable, the Company covenants and agrees with the Dealer Manager):
(a) Compliance
With Laws. With respect to the Dealer Manager’s participation and the participation by each Soliciting Dealer in
the offer and sale of the Preferred Shares (including, without limitation, any resales and transfers of Preferred Shares),
the Dealer Manager agrees, and each Soliciting Dealer in its Soliciting Dealer Agreement has agreed or will agree, to comply
in all material respects with all applicable requirements of (i) the Securities Act, the Securities Act Rules and
Regulations, the Exchange Act, the Exchange Act Rules and Regulations and all other federal regulations applicable to the
Offering and the sale of Preferred Shares, (ii) all applicable state securities or blue sky laws and regulations, from
time to time in effect and (iii) the Rules of FINRA applicable to the Offering, from time to time in effect,
specifically including, but not in any way limited to, FINRA Conduct Rules 2111, 2040, 2340, 5130 and 5141 therein. The
Dealer Manager has not offered and will not offer the Preferred Shares for sale in any jurisdiction unless and until it has
been advised that the Preferred Shares are either registered in accordance with, or exempt from, the securities and other
laws applicable thereto.
In addition, the Dealer Manager shall, in
accordance with applicable law or as prescribed by any state securities administrator, provide, or require in the Soliciting Dealer
Agreement that the Soliciting Dealer shall provide, to any prospective investor copies of the Prospectus and any supplements thereto
during the course of the Offering and prior to the sale of any Preferred Shares. The Company may provide the Dealer Manager with
certain Approved Sales Literature to be used by the Dealer Manager and the Soliciting Dealers in connection with the solicitation
of purchasers of the Preferred Shares. If the Dealer Manager elects to use Approved Sales Literature, then the Dealer Manager agrees
that such material shall not be used by it in connection with the solicitation of purchasers of the Preferred Shares and that it
will direct Soliciting Dealers not to make such use unless accompanied or preceded by the Prospectus, as then amended or supplemented.
The Dealer Manager will not use any Approved Sales Literature other than those provided to the Dealer Manager by the Company specifically
for use in the Offering.
(b)
No Additional Information. In offering the Preferred Shares for sale, the Dealer Manager shall not, and each
Soliciting Dealer shall agree not to, give or provide any information or make any representation other than those contained in
the Prospectus or the Approved Sales Literature. The Dealer Manager shall not and each Soliciting Dealer shall agree not to (i) show
or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and
marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with
the sale of Preferred Shares to members of the public, (ii) show or give to any investor or prospective investor in a particular
jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is
not to be used in connection with the sale of Preferred Shares to members of the public in such jurisdiction or (iii) make any
public oral communications relating to the Offering that have not been previously approved by the Company.
(c)
Materials for Broker-Dealer Use Only. The Dealer Manager will not use, provide, make available, distribute
or otherwise use any “broker-dealer use only” Approved Sales Literature with members of the public in connection with
offers or sales of the Preferred Shares.
(d)
Sales of Shares. The Dealer Manager shall, and each Soliciting Dealer shall agree to, solicit purchases of
the Preferred Shares only in the jurisdictions in which the Dealer Manager and such Soliciting Dealer are legally qualified to
so act.
(e)
Subscription Agreement. The Dealer Manager has complied and will comply in all material respects with the
subscription procedures and “Plan of Distribution” set forth in the Prospectus. Subscriptions will be submitted by
the Dealer Manager and each Soliciting Dealer to the Company only on the form of Subscription Agreement in respect of the Offering
most recently filed or incorporated by reference as an exhibit to the Registration Statement prior to the proposed effective date
of such subscription. The Dealer Manager understands and acknowledges, and each Soliciting Dealer shall acknowledge, that the Subscription
Agreement must be executed and initialed by the subscriber as provided for by the Subscription Agreement.
(f) Suitability.
The Dealer Manager has and will offer Preferred Shares, and in its agreement with each Soliciting Dealer requires or will
require that the Soliciting Dealer offer Preferred Shares, only to Persons in the states in which the Dealer Manager is
advised in writing by its counsel that the Preferred Shares are qualified for sale or that such qualification is not
required. In offering Preferred Shares, the Dealer Manager has complied and will comply and, in its agreements with the
Soliciting Dealers, the Dealer Manager has required and will require that the Soliciting Dealers (i) comply, with the
provisions of all applicable laws, rules and regulations relating to suitability of investors, including without limitation
the FINRA Conduct Rules and (ii) in making such suitability determination, consider, based on the information provided
by a given purchaser: such purchaser’s age, investment objectives, investment experience, income, net worth, financial
situation and other investments held by such purchaser; whether such purchaser can reasonably benefit from an investment in
the Preferred Shares based on his, her or its overall investment objectives and portfolio structure and is able to bear the
economic risk of the investment based on his, her or its overall financial situation; and whether such purchaser has an
apparent understanding of the fundamental risks of an investment in the Preferred Shares, the risk that he, she or it may
lose the entire investment, the lack of liquidity of the Preferred Shares, the restrictions on transferability of the
Preferred Shares, the background and qualifications of the Company’s advisor, and the tax, including ERISA,
consequences of an investment in the Preferred Shares. Notwithstanding the foregoing, the Dealer Manager shall not, and each
Soliciting Dealer shall agree not to, execute any transaction with respect to the Preferred Shares in a discretionary account
without prior written approval of the transaction by the customer.
(g)
Suitability Records. The Dealer Manager shall, and each Soliciting Dealer shall agree to, maintain, for at
least six years or for a period of time not less than that required in order to comply with all applicable federal, state and other
regulatory requirements, whichever is later, a record of the information obtained to determine that an investor meets the suitability
standards imposed on the offer and sale of the Preferred Shares (both at the time of the initial subscription and at the time of
any additional subscriptions) and a representation of the investor that the investor is investing for the investor’s own
account or, in lieu of such representation, information indicating that the investor for whose account the investment was made
met the suitability standards. Except to the extent that the Dealer Manager makes any direct sales to investors, the Company agrees
that the Dealer Manager can satisfy its obligation by contractually requiring such information to be maintained by the investment
advisers or banks referred to in Section 3(b) of the Soliciting Dealer Agreement.
(h)
Soliciting Dealer Agreements. All engagements of the Soliciting Dealers are and shall be evidenced by a Soliciting
Dealer Agreement.
(i)
Electronic Delivery. If the Dealer Manager uses electronic delivery to distribute the Prospectus to any Person,
it will comply with all applicable requirements of the Commission, the blue sky laws and/or FINRA and any other laws or regulations
related to the electronic delivery of documents.
(j) Anti-Money
Laundering Compliance. Although acting as a wholesale distributor and not itself selling securities of the Company
directly to investors, the Dealer Manager represents and warrants to the Company that it has established and implemented
anti-money laundering compliance programs (“AML Program”) in accordance with applicable law,
including applicable FINRA Conduct Rules, the Exchange Act Rules and Regulations and the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act) of 2001, as amended (the
“USA PATRIOT Act”), specifically including, but not limited to, Section 352 of the International
Money Laundering Abatement and Anti-Terrorist Financing Act of 2001 (the “Money Laundering Abatement
Act”, and together with the USA PATRIOT Act, the “AML Rules”), reasonably expected to
detect and cause the reporting of suspicious transactions in connection with the Offering. The Dealer Manager further
represents and warrants that it is currently in compliance with all AML Rules, specifically including, but not limited to,
the Customer Identification Program requirements under Section 326 of the Money Laundering Abatement Act, and the Dealer
Manager hereby covenants to remain in compliance with such requirements and shall, upon request by the Company, provide a
certification to the Company that, as of the date of such certification (i) its AML Program is consistent with the AML
Rules, and (ii) it is currently in compliance with all AML Rules, specifically including, but not limited to, the
Customer Identification Program requirements under Section 326 of the Money Laundering Abatement Act.
(k)
Cooperation. Following the Offering Period or the earlier termination of this Agreement, upon the Company’s
request, the Dealer Manager will cooperate fully with the Company and any other Person that may be necessary to accomplish an orderly
transfer and/or the transfer to a successor dealer manager of the operation and management of any services the Dealer Manager is
providing to the Company under this Agreement. The Dealer Manager will not be entitled to receive any additional fee in connection
with the foregoing provisions of this Section 8(k), but the Company will pay or reimburse the Dealer Manager for any out-of-pocket
expenses reasonably incurred by the Dealer Manager in connection therewith and approved in advance by the Company.
(l)
Customer Information. The Dealer Manager will use commercially reasonable efforts to provide the Company with
any and all subscriber information that the Company requests.
(m)
Customer Information. The Dealer Manager shall:
(i)
abide by and comply with (A) the privacy standards and requirements of the Gramm-Leach-Bliley Act of 1999 (the
“GLB Act”), (B) the privacy standards and requirements of any other applicable federal or state
law, and (C) its own internal privacy policies and procedures, each as may be amended from time to time;
(ii)
refrain from the use or disclosure of nonpublic personal information (as defined under the GLB Act) of all customers
who have opted out of such disclosures except as necessary to service the customers or as otherwise necessary or required by applicable
law; and
(iii)
determine which customers have opted out of the disclosure of nonpublic personal information by periodically reviewing
and, if necessary, retrieving an aggregated list of such customers from the Soliciting Dealers (the “List”)
to identify customers that have exercised their opt-out rights. If any Party uses or discloses nonpublic personal information of
any customer for purposes other than servicing the customer, or as otherwise required by applicable law, that Party will consult
the List to determine whether the affected customer has exercised his or her opt-out rights. Each Party understands that it is
prohibited from using or disclosing any nonpublic personal information of any customer that is identified on the List as having
opted out of such disclosures.
9.
Expenses.
(a)
Subject to Section 9(b), the Dealer Manager shall pay all its own costs and expenses incident to the performance
of its obligations under this Agreement.
(b)
The Company agrees to pay all costs and expenses related to:
(i)
the registration fee payable to the Commission in connection with the offer and sale of the Preferred Shares;
(ii)
expenses of printing the Registration Statement and the Prospectus and any amendment or supplement thereto as herein
provided;
(iii)
fees and expenses incurred in connection with any required filing with FINRA for the offer and sale of the Preferred
Shares;
(iv)
all the expenses of agents of the Company, excluding the Dealer Manager and any Soliciting Dealers, incurred in connection
with the offer and sale of the Preferred Shares; and
(v)
expenses of qualifying the Preferred Shares for offering and sale under state blue sky and securities laws (other
than the expenses in connection with the preparation and printing of the Blue Sky Survey referred to above); and
(vi)
any other reasonable, documented out-of-pocket costs and expenses directly related to the offer, sale and distribution
of the Preferred Shares pre-approved by the Company, subject to FINRA rules in respect of underwriter compensation.
(c)
The Company shall reimburse the Dealer Manager and Soliciting Dealers for approved or deemed approved reasonable
bona fide due diligence expenses in accordance with Section 5(d)(vi).
10.
Indemnification.
(a)
Indemnified Parties Defined. For the purposes of this Agreement, an “Indemnified Party”
shall mean a Person entitled to indemnification under this Section 10, as well as such Person’s officers, directors
(including with respect to the Company, any Person named in the Registration Statement with his or her consent as becoming a director
in the future), employees, members, managers, partners, affiliates, agents and representatives, and each Person, if any, who controls
such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act.
(b) Indemnification
of the Dealer Manager and Soliciting Dealers. The Company will indemnify, defend and hold harmless the Dealer Manager and
the Soliciting Dealers, and their respective Indemnified Parties, from and against any losses, claims, expenses (including
reasonable legal and other expenses incurred in investigating and defending such claims or liabilities), damages or
liabilities, joint or several, to which any of the aforesaid parties may become subject under the Securities Act, the
Exchange Act, the Securities Act Rules and Regulations, the Exchange Act Rules and Regulations or otherwise, insofar as such
losses, claims, expenses, damages or liabilities (or actions in respect thereof) arise out of or are based upon or are
related to (in whole or in part): (i) any material inaccuracy in a representation or warranty contained herein by the
Company, any material breach of a covenant contained herein by the Company, or any material failure by the Company to perform
its obligations hereunder or to comply with state or federal securities laws applicable to the Offering; (ii) any untrue
statement or alleged untrue statement of a material fact contained (A) in any Registration Statement or any
post-effective amendment thereto or in the Prospectus or any amendment or supplement to the Prospectus or (B) in any
Approved Sales Literature; or (iii) the omission or alleged omission to state a material fact required to be stated in
the Registration Statement or any post-effective amendment thereto to make the statements therein not misleading or the
omission or alleged omission to state a material fact required to be stated in the Prospectus or any amendment or supplement
to the Prospectus to make the statements therein, in light of the circumstances under which they were made, not misleading; provided,
however, that the Company will not be liable in any such case to the extent that any such loss, claim, expense, damage or
liability arises out of, or is based upon (x) an untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with written information furnished to the Company by the Dealer Manager
expressly for use in the Registration Statement or any post-effective amendment thereof or the Prospectus or any such
amendment thereof or supplement thereto or (y) a violation of federal or state securities laws by the Dealer Manager.
The Company will reimburse each Soliciting Dealer or the Dealer Manager, and their respective Indemnified Parties, for any
reasonable legal or other expenses incurred by such Soliciting Dealer or the Dealer Manager, and their respective Indemnified
Parties, in connection with investigating or defending such loss, claim, expense, damage, liability or action. This indemnity
agreement will be in addition to any liability which the Company may otherwise have.
(c)
Dealer Manager Indemnification of the Company and the Manager. The Dealer Manager will indemnify, defend and
hold harmless the Company, the Manager, each of their Indemnified Parties and each Person who has signed the Registration Statement,
from and against any losses, claims, expenses (including the reasonable legal and other expenses incurred in investigating and
defending any such claims or liabilities), damages or liabilities to which any of the aforesaid parties may become subject under
the Securities Act, the Securities Act Rules and Regulations, the Exchange Act, the Exchange Act Rules and Regulations or otherwise,
insofar as such losses, claims, expenses, damages or liabilities (or actions in respect thereof) arise out of or are based upon
or are related to (in whole or in part): (i) any material inaccuracy in a representation or warranty contained herein by the Dealer
Manager, any material breach of a covenant contained herein by the Dealer Manager, or any material failure by the Dealer Manager
to perform its obligations hereunder or to comply with state or federal securities laws applicable to the Offering; (ii) any untrue
statement or any alleged untrue statement of a material fact contained (A) in any Registration Statement or any post-effective
amendment thereto or in the Prospectus or any amendment or supplement to the Prospectus or (B) in any Approved Sales Literature;
(iii) the omission or alleged omission to state a material fact required to be stated in the Registration Statement or any
post-effective amendment thereof to make the statements therein not misleading or the omission or alleged omission to state a material
fact required to be stated in the Prospectus or any amendment or supplement to the Prospectus to make the statements therein, in
light of the circumstances under which they were made, not misleading; provided, however, that the Dealer Manager will not
be liable in any such case to the extent that any such loss, claim, expense, damage or liability arises out of, or is based upon
an untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written
information furnished to the Dealer Manager by the Company in the Registration Statement or any such post-effective amendments
thereof or the Prospectus or any such amendment thereof or supplement thereto; or (iv) any use of sales literature, including
“broker-dealer use only” materials, by the Dealer Manager or any Soliciting Dealer that is not Approved Sales Literature
or use of unauthorized oral communications relating to the Offering by the Dealer Manager or any Soliciting Dealer. The Dealer
Manager will reimburse the aforesaid parties for any reasonable legal or other expenses incurred in connection with investigation
or defense of such loss, claim, expense, damage, liability or action. This indemnity agreement will be in addition to any liability
which the Dealer Manager may otherwise have.
(d)
Soliciting Dealer Indemnification of the Company. By virtue of entering into the Soliciting Dealer Agreement,
each Soliciting Dealer severally will agree to indemnify, defend and hold harmless the Company, the Dealer Manager, each of their
respective Indemnified Parties, and each Person who signs the Registration Statement, from and against any losses, claims, expenses,
damages or liabilities to which the Company, the Dealer Manager, any of their respective Indemnified Parties or any Person who
signs or signed the Registration Statement, may become subject, under the Securities Act or otherwise, as more fully described
in the Soliciting Dealer Agreement.
(e)
Action Against Parties; Notification. Promptly after receipt by any Indemnified Party under this Section
10 of notice of the commencement of any action, such Indemnified Party will, if a claim in respect thereof is to be made against
any indemnifying party under this Section 10, promptly notify the indemnifying party of the commencement thereof; provided,
however, that the failure to give such notice shall not relieve the indemnifying party of its obligations hereunder except
to the extent it shall have been actually prejudiced by such failure. In case any such action is brought against any Indemnified
Party, and it notifies an indemnifying party of the commencement thereof, the indemnifying party will be entitled, to the extent
it may wish, jointly with any other indemnifying party similarly notified, to participate in the defense thereof, with counsel
(including local counsel) (the “Chosen Counsel”) satisfactory to such
Indemnified Party (who shall not, except with the consent of the Indemnified Party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such Indemnified Party of its election so to assume the defense thereof, the indemnifying
party will not be liable to such Indemnified Party under this Section 10 for any legal or other expenses subsequently incurred
by such Indemnified Party in connection with the defense thereof, other than reasonable costs of investigation, unless (i) the
use of counsel (including local counsel) chosen by the indemnifying party to represent the Indemnified Party would present such
counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both
the Indemnified Party and the indemnifying party and the Indemnified Party shall have reasonably concluded that there may be one
or more legal defenses available to it and/or other Indemnified Party that are different from or additional to those available
to the indemnifying party, (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the Indemnified
Party to represent the Indemnified Party within a reasonable time after receipt by the indemnifying party of notice of the institution
of such action, or (iv) the indemnifying party has authorized in writing the employment of counsel for the Indemnified Party
at the expense of the indemnifying party; provided, however, that the indemnifying party shall not, in connection
with any one such action or proceeding or separate but substantially similar actions or proceedings arising out of the same general
allegations, be liable for the fees and expenses of more than one separate firm of attorneys in addition to the Chosen Counsel
at any time for all Indemnified Parties hereunder. Upon assumption by the indemnifying party of the defense thereof, the Indemnified
Party shall have the right to participate in such action or claim and to retain its own counsel but, except as set forth in clauses
(i) through (iv) of the preceding sentence, the indemnifying party shall not be liable to such Indemnified Party for any legal
fees and expenses of other counsel subsequently incurred by such Indemnified Party in connection with the defense thereof. Any
such indemnifying party shall not be liable to any such Indemnified Party on account of any settlement of any claim or action
effected without the consent of such indemnifying party, such consent not to be unreasonably withheld or delayed.
11.
Contribution.
(a)
If the indemnification provided for in Section 10 is for any reason unavailable to or insufficient to hold
harmless an Indemnified Party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred
by such Indemnified Party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received
by the Company, the Dealer Manager and the Soliciting Dealer, respectively, from the proceeds received in the Offering pursuant
to this Agreement and the relevant Soliciting Dealer Agreement, or (ii) if the allocation provided by clause (i) 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, the Dealer Manager and the Soliciting Dealer, respectively, in connection
with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
(b)
The relative benefits received by the Company, the Dealer Manager and the Soliciting Dealer, respectively, in connection
with the proceeds received in the Offering pursuant to this Agreement and the relevant Soliciting Dealer Agreement shall be deemed
to be in the same respective proportion as the total net proceeds from the Offering pursuant to this Agreement and the relevant
Soliciting Dealer Agreement (before deducting expenses), received by the Company, and the total selling commissions and Dealer
Manager Fees received by the Dealer Manager and the Soliciting Dealer, respectively, in each case as set forth on the cover of
the Prospectus bear to the aggregate offering price of the Preferred Shares sold in the Offering as set forth on such cover.
(c) The
relative fault of the Company, the Dealer Manager and the Soliciting Dealer, respectively, shall be determined by reference
to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact related to information supplied by the Company, by the Dealer Manager or by the Soliciting
Dealer, respectively, and the parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(d)
The Company, the Dealer Manager and the Soliciting Dealer (by virtue of entering into the Soliciting Dealer Agreement)
agree that it would not be just and equitable if contribution pursuant to this Section 11 were determined by pro rata
allocation or by any other method of allocation which does not take account of the equitable contributions referred to above in
this Section 11. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an Indemnified Party
and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such
Indemnified Party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission or alleged omission.
(e)
Notwithstanding the provisions of this Section 11, the Dealer Manager and the Soliciting Dealer shall not
be required to contribute any amount by which the total price at which the Preferred Shares sold in the Offering to the public
by them exceeds the amount of any damages which the Dealer Manager and the Soliciting Dealer have otherwise been required to pay
by reason of any untrue or alleged untrue statement or omission or alleged omission.
(f)
No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any Party who was not guilty of such fraudulent misrepresentation.
(g)
For the purposes of this Section 11, the Dealer Manager’s officers, directors, employees, members, partners,
agents and representatives, and each Person, if any, who controls the Dealer Manager within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act shall have the same rights to contribution of the Dealer Manager, and each officers, directors,
employees, members, partners, agents and representatives of the Company, each officer of the Company who signed the Registration
Statement and each Person, if any, who controls the Company, within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act shall have the same rights to contribution of the Company. The Soliciting Dealers’ respective obligations
to contribute pursuant to this Section 11 are several in proportion to the number of Preferred Shares sold by each Soliciting
Dealer in the Offering and not joint.
12.
Termination of this Agreement.
(a)
Term; Expiration. Unless sooner terminated by the Company pursuant to Section 12(b) or by the
Dealer Manager pursuant to Section 12(c), this Agreement shall expire at the end of the Offering Period. The date upon which
this Agreement shall have so expired or been terminated earlier shall be referred to as the “Termination Date”.
For the avoidance of doubt, from and after the occurrence of the Termination Date, the Company shall have the right to commence
and undertake preparations to commence a public offering of Preferred Shares.
(b)
Termination by the Company. This Agreement may be terminated by the Company:
(i)
At any time for convenience, upon at least thirty (30) days’ prior written notice to the Dealer Manager; or
(ii)
Upon written notice of termination from the Company to the Dealer Manager if any of the following events shall occur:
(A)
A Cause Event (as defined below);
(B)
A court of competent jurisdiction enters a decree or order for relief in respect of the Dealer Manager in any involuntary
case under the applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appoints a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of the Dealer Manager or for any substantial part of its property
or orders the winding up or liquidation of the Dealer Manager’s affairs;
(C)
The Dealer Manager commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any such law, or consents
to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official)
of the Dealer Manager or for any substantial part of its property, or makes any general assignment for the benefit of creditors,
or fails generally to pay its debts as they become due;
As used herein, a “Cause Event” means
(1) fraud, criminal conduct or willful misconduct by or on the part of the Dealer Manager, (2) a representation or warranty
made by the Dealer Manager herein shall prove to be untrue in any material respect, or (3) a default in the due performance
or observance by the Dealer Manager of any covenant or agreement contained in this Agreement and such default shall continue unremedied
for a period of thirty (30) days after written notice thereof to the Dealer Manager by the Company.
(c)
Termination by Dealer Manager. This Agreement may be terminated by the Dealer Manager immediately upon written
notice of termination from the Dealer Manager to the Company if any of the following events occur:
(i)
A Good Reason Event (as defined below);
(ii)
A court of competent jurisdiction enters a decree or order for relief in respect of the Company or any of its subsidiaries
in any involuntary case under the applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appoints
a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or any of its subsidiaries
or for any substantial part of its property or orders the winding up or liquidation of the Company’s or any of its subsidiaries’
affairs;
(iii)
The Company or any of its subsidiaries commences a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any
such law, or consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of the Company or any of its subsidiaries or for any substantial part of their property, or makes any general
assignment for the benefit of creditors, or fails generally to pay its debts as they become due;
(iv)
A stop order suspending the effectiveness of the Registration Statement shall have been issued by the Commission
and is not rescinded within 15 business days after the issuance thereof;
(v)
There shall have occurred a Company MAE, whether or not in the ordinary course of business; or
(vi)
A material action, suit, proceeding or investigation of the type referred to in Section 2(g) shall have occurred
or arisen after the date of this Agreement.
As used herein, a “Good Reason
Event” means (A) fraud, criminal conduct or willful misconduct by or on the part of the Company, (B) a
representation or warranty made by the Company herein shall prove to be untrue in any material respect, or (C) a default in
the due performance or observance by the Company of any covenant or agreement contained in this Agreement and such default shall
continue unremedied for a period of thirty (30) days after written notice thereof to the Company by the Dealer Manager.
(d)
Delivery of Records Upon Expiration or Early Termination. Upon the expiration or early termination of this
Agreement for any reason, the Dealer Manager shall (i) promptly forward any and all funds, if any, in its possession which
were received from investors for the sale of Preferred Shares for the deposit of investor funds, (ii) to the extent not previously
provided to the Company, provide a list of all investors who have subscribed for or purchased shares and all broker-dealers with
whom the Dealer Manager has entered into a Soliciting Dealer Agreement, (iii) notify Soliciting Dealers
of such termination, and (iv) promptly deliver to the Company copies of any sales literature designed for use specifically
for the Offering that it is then in the process of preparing. Upon expiration or earlier termination of this Agreement, the Company
shall pay to the Dealer Manager all compensation to which the Dealer Manager is then entitled under Section 5(d) at such
time as such compensation becomes payable.
13.
Miscellaneous.
(a)
Survival. The following provisions of the Agreement shall survive the expiration or earlier termination of
this Agreement: Section 8(g); Section 8(l); Section 9; Section 10; Section 11; Section 12;
and Section 13. Notwithstanding anything else that may be to the contrary herein, the expiration or earlier termination
of this Agreement shall not relieve a Party for liability for any breach occurring prior to such expiration or earlier termination.
In no event shall the Dealer Manager be entitled to payment of any compensation in connection with the Offering, other than for
completed sales of Preferred Shares pursuant to Section 5 hereof.
(b)
Notices. All notices, consents, approvals, waivers or other communications (each, a “Notice”)
required or permitted hereunder, except as herein otherwise specifically provided, shall be in writing and shall be: (i) delivered
personally or by commercial messenger; (ii) sent via a recognized overnight courier service; or (iii) sent by facsimile
transmission, provided confirmation of receipt is received by sender and such Notice is sent or delivered contemporaneously by
an additional method provided in this Section 13(b); in each case so long as such Notice is addressed to the intended recipient
thereof as set forth below:
If to the Company:
CIM Commercial Trust Corporation
17950 Preston Road, Suite 600
Dallas, Texas 75252
Tel: (972) 349-3200
Fax: (972) 349-3269
Attention: Jan Salit / David Thompson
With a copy to
CIM Commercial Trust Corporation
c/o CIM Investment Advisors, LLC
4700 Wilshire Boulevard
Los Angeles, California 90010
Fax: (323) 860-4901
Attention: General Counsel
E-mail: generalcounsel@cimgroup.com
If to the Dealer Manager:
CCO Capital, LLC
2398 East Camelback Road, 4th Floor
Phoenix, Arizona 85016
Attention: President
Any Party may change its address specified above by giving each
Party a Notice of such change in accordance with this Section 13(b). Any Notice shall be deemed given upon actual receipt
(or refusal of receipt).
(c)
Successors and Assigns. No Party shall assign (voluntarily, by operation of law or otherwise) this Agreement
or any right, interest or benefit under this Agreement without the prior written consent of each other Party. Subject to the foregoing,
this Agreement shall be fully binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective
successors and assigns.
(d)
Invalid Provision. The invalidity or unenforceability of any provision of this Agreement shall not affect
the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision
was omitted.
(e)
Applicable Law. This Agreement and any disputes relative to the interpretation or enforcement hereto shall
be governed by and construed under the internal laws, as opposed to the conflicts of laws provisions, of the State of New York.
(f)
WAIVER. EACH OF THE PARTIES HERETO WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) RELATED TO OR ARISING OUT OF THIS AGREEMENT. The parties hereto each hereby irrevocably
submits to the exclusive jurisdiction of the courts of the State of New York and the Federal courts of the United States of America
located in the Borough of Manhattan, New York City, in respect of the interpretation and enforcement of the terms of this Agreement,
and in respect of the transactions contemplated hereby, and each hereby waives, and agrees not to assert, as a defense in any action,
suit or proceeding for the interpretation or enforcement hereof, that it is not subject thereto or that such action, suit or proceeding
may not be brought or is not maintainable in said courts or that the venue thereof may not be appropriate or that this Agreement
may not be enforced in or by such courts, and the parties hereto each hereby irrevocably agrees that all claims with respect to
such action or proceeding shall be heard and determined in such a New York State or Federal court.
(g) Attorneys’
Fees. If a dispute arises concerning the performance, meaning or interpretation of any provision of this Agreement or any
document executed in connection with this Agreement, then the prevailing party in such dispute shall be awarded any and all
costs and expenses incurred by the prevailing party in enforcing, defending or establishing its rights hereunder or
thereunder, including, without limitation, court costs and attorneys and expert witness fees. In addition to the foregoing
award of costs and fees, the prevailing party also shall be entitled to recover its attorneys’ fees incurred in any
post-judgment proceedings to collect or enforce any judgment.
(h)
No Partnership. Nothing in this Agreement shall be construed or interpreted to constitute the Dealer Manager
or the Soliciting Dealers as being in association with or in partnership with the Company or one another, and instead, this Agreement
only shall constitute the Dealer Manager as a broker authorized by the Company to sell and to manage the sale by others of the
Preferred Shares according to the terms set forth in the Registration Statement, the Prospectus or this Agreement. Nothing herein
contained shall render the Dealer Manager or the Company liable for the obligations of any of the Soliciting Dealers or one another.
(i)
Third Party Beneficiaries. Except for the Persons referred to in Section 10 and Section 11,
there shall be no third party beneficiaries of this Agreement, and no provision of this Agreement is intended to be for the benefit
of any Person not a Party, and no third party shall be deemed to be a beneficiary of any provision of this Agreement. Except for
the Persons referred to in Section 10 and Section 11, no third party shall by virtue of any provision of this
Agreement have a right of action or an enforceable remedy against any Party. Each of the Persons referred to in Section 10
and Section 11 shall be a third party beneficiary of this Agreement.
(j)
Entire Agreement. This Agreement contains the entire agreement and understanding among the parties hereto
with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof. The express
terms hereof control and supersede any course of performance and/or usage of the trade inconsistent with any of the terms hereof.
This Agreement may not be modified or amended other than by an agreement in writing.
(k)
Nonwaiver. The failure of any Party to insist upon or enforce strict performance by any other Party of any
provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment
to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance; rather,
such provision or right shall be and remain in full force and effect.
(l)
Access to Information. The Company may authorize the Company’s transfer agent to provide information
to the Dealer Manager and each Soliciting Dealer regarding recordholder information about the clients of such Soliciting Dealer
who have invested with the Company on an on-going basis for so long as such Soliciting Dealer has a relationship with such clients.
The Dealer Manager shall require in the Soliciting Dealer Agreement that Soliciting Dealers not disclose any password for a restricted
website or portion of a restricted website provided to such Soliciting Dealer in connection with the Offering and not disclose
to any Person, other than an officer, director, employee or agent of such Soliciting Dealers, any material downloaded from such
a restricted website or portion of a restricted website.
(m)
Counterparts. This Agreement may be executed (including by facsimile transmission) with counterpart signature
pages or in counterpart copies, each of which shall be deemed an original but all of which together shall constitute one and the
same instrument comprising this Agreement.
(n) Absence
of Fiduciary Relationships. The Parties acknowledge and agree that (i) the Dealer Manager’s responsibility to
the Company and the Manager is solely contractual in nature, and (ii) the Dealer Manager does not owe the Company, the
Manager, any of their respective affiliates or any other Person any fiduciary (or other similar) duty as a result of this
Agreement or any of the transactions contemplated hereby.
(o)
Dealer Manager Information. The Parties will expressly acknowledge and agree as to the information furnished
to the Company by the Dealer Manager expressly for use in the Registration Statement.
(p)
Promotion of Dealer Manager Relationship. The Company and the Dealer Manager shall not promote or advertise
their relationship without the approval of the other Party in advance, provided that nothing in this Section 13(p) shall
prevent or restrict the Company from making any disclosures required by securities laws, rules or regulations or applicable stock
exchange rules or listing standards.
(q)
Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are
not to be considered in construing or interpreting this Agreement.
If the foregoing is in accordance with your
understanding of our agreement, kindly sign and return it to us, whereupon this instrument will become a binding agreement between
you and the Company in accordance with its terms.
[Signatures on following page]
IN WITNESS WHEREOF, the parties hereto have
each duly executed this Amended and Restated Dealer Manager Agreement as of the date first set forth above.
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CIM COMMERCIAL TRUST CORPORATION
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By:
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/s/ David Thompson
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Name:
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David Thompson
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Title:
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Chief Executive Officer
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CIM SERVICE PROVIDER, LLC
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By:
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/s/ David Thompson
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Name:
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David Thompson
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Title:
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Chief Executive Officer
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CCO Capital, LLC
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By:
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/s/ Emily Vande Krol
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Name:
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Emily Vande Krol
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Title:
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President
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(Signature Page to Amended and Restated Dealer Manager Agreement)
Exhibit 1.2
CIM COMMERCIAL
TRUST CORPORATION
FORM OF SOLICITING DEALER AGREEMENT
Ladies and Gentlemen:
CCO Capital, LLC, a
Delaware limited liability company, as the dealer manager (the “Dealer Manager”) for CIM Commercial Trust
Corporation, a Maryland corporation (the “Company”), invites you to participate in the distribution of
a maximum of $784,983,825, on an aggregate basis, of Series A Preferred Stock, par value $0.001 per share, of the Company (the
“Series A Preferred Stock”) and Series D Preferred Stock, par value $0.001 per share, of the Company
(the “Series D Preferred Stock,” and, together with the Series A Preferred Stock, the “Preferred
Shares”) subject to the following terms:
1.
Dealer Manager Agreement. The Dealer Manager entered into the Second Amended and Restated Dealer Manager Agreement,
dated as of January 28, 2020 (the “Dealer Manager Agreement”), with the Company and CIM Service
Provider, LLC, a Delaware limited liability company (the “Manager”), pursuant to which the Dealer Manager
has agreed to use its reasonable best efforts to solicit subscriptions in connection with the public offering (the “Offering”)
of a maximum of $ 784,983,825, on an aggregate basis, of the Preferred Shares. Unless otherwise defined herein, capitalized terms
used herein shall have the respective meanings therefor as in the Dealer Manager Agreement.
In connection with
the performance of the Dealer Manager’s obligations under Section 5 of the Dealer Manager Agreement, the Dealer Manager is
authorized to retain the services of securities dealers (collectively, the “Soliciting Dealers”) who
are members of the Financial Industry Regulatory Authority, Inc. (“FINRA”) to solicit subscriptions for
the Preferred Shares in connection with the Offering. You are hereby invited to become one of the Soliciting Dealers and, as such,
to use your reasonable best efforts to solicit subscribers for the Preferred Shares, in accordance with the terms and conditions
of this Soliciting Dealer Agreement (this “Agreement”). The Company will sell Preferred Shares using
both electronic subscription and settlement processes (“Electronic Settlement”) and physical subscription
and settlement processes (“Physical Settlement”).
2.
Registration Statement. The Company has filed with the U.S. Securities and
Exchange Commission (the “Commission”) a shelf registration statement on Form S-3 (Reg. No. 333-233255),
including a base prospectus, declared effective by the Commission on November 27, 2019 (the “Shelf Registration Statement”),
containing a base prospectus, for the registration of the Preferred Shares under the Securities Act of 1933, as amended (the “Securities
Act”), and the rules and regulations of the Commission promulgated thereunder (the “Securities Act Rules
and Regulations”). Except where the context otherwise requires, the term “Registration Statement”
shall refer to the most recently declared effective of (i) the Shelf Registration Statement, (ii) any subsequent registration
statement in respect of the Offering filed with the Commission pursuant to Rule 415(a)(6) under the Securities Act, from and after
the declaration of the effectiveness of such subsequent registration statement, and (iii) any post-effective amendment to
the Shelf Registration Statement or any subsequent registration statement in respect of the Offering filed with the Commission,
in each case from and after the declaration of effectiveness of such post-effective amendment or subsequent registration statement,
and in each case 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 the
Securities Act Rules and Regulations. The term “Prospectus” shall refer to the base prospectus contained
in the Registration Statement, as supplemented from time to time. The term “preliminary Prospectus”
shall refer to a preliminary prospectus related to the Offering prior to the final determination of pricing terms included at
any time as part of the Registration Statement. As used herein, the terms “Registration Statement”, “Prospectus”
and “preliminary Prospectus” shall include the documents, if any, incorporated or deemed to be incorporated by reference
therein.
3.
Compliance with Applicable Rules and Regulations; License and Association Membership.
Upon the effectiveness
of this Agreement, the undersigned dealer will become one of the “Soliciting Dealers” referred to in the Dealer Manager
Agreement and is referred to herein as “Soliciting Dealer”. Soliciting Dealer agrees that solicitation
and other activities by it hereunder shall comply with, and shall be undertaken only in accordance with, the terms of the Dealer
Manager Agreement, the terms of this Agreement, the Securities Act, the Securities Act Rules and Regulations, the Securities Exchange
Act of 1934, as amended (the “Exchange Act”) and the applicable rules and regulations promulgated thereunder
(including, without limitation, the provisions of Regulation M applicable to the Offering, as interpreted by the Commission and
after giving effect to any applicable exemptions) (the “Exchange Act Rules and Regulations”), the Rules
of Fair Practice of FINRA, the FINRA Rules (including, without limitation, Rules 2111, 2040, 2340, 5130 and 5141 of the FINRA Rules),
and all other applicable federal and state laws and regulations promulgated thereunder.
Soliciting Dealer will
not offer the Preferred Shares for sale in any jurisdiction unless and until it has been advised that the Preferred Shares are
either registered in accordance with, or exempt from, the securities and other laws applicable thereto. Soliciting Dealer will
offer Preferred Shares only to persons in the states in which it is advised in writing by its counsel that the Preferred Shares
are qualified for sale or that such qualification is not required. In offering the Preferred Shares, Soliciting Dealer will comply
with the provisions of all applicable rules and regulations relating to suitability of investors, including without limitation
the FINRA Conduct Rules. Notwithstanding the foregoing, Soliciting Dealer shall not execute any transaction with respect to the
Preferred Shares in a discretionary account without prior written approval of the transaction by the customer.
Soliciting Dealer’s
acceptance of this Agreement constitutes a representation and warranty to the Company and to the Dealer Manager that Soliciting
Dealer is a properly registered or licensed broker-dealer, duly authorized to sell the Preferred Shares under federal securities
laws and regulations and that it is a member in good standing of FINRA. Soliciting Dealer represents and warrants that it is currently
licensed as a broker-dealer in the state in which its principal office is located. This Agreement shall automatically terminate
with no further action by either party if Soliciting Dealer ceases to be a member in good standing of FINRA or with the securities
commission of the state in which Soliciting Dealer’s principal office is located. Soliciting Dealer agrees to notify the
Dealer Manager immediately if Soliciting Dealer ceases to be a member in good standing of FINRA or with the securities commission
of the state in which Soliciting Dealer’s principal office is located.
4.
Limitation of Offer.
(a)
Soliciting Dealer will not offer Preferred Shares and will not permit any of its registered representatives to offer
Preferred Shares in any jurisdiction unless both Soliciting Dealer and such registered representative are duly licensed to transact
business in securities in such jurisdiction. In offering Preferred Shares, Soliciting Dealer shall comply with the provisions
of the Rules of Fair Practice set forth in the FINRA Manual, as well as all other applicable rules and regulations.
(b)
Soliciting Dealer shall maintain all Subscription Agreements (as defined below) for at least six years or for a period
of time not less than that required in order to comply with all applicable federal and other regulatory requirements. Soliciting
Dealer may satisfy its obligation by contractually requiring Subscription Agreements to be maintained by the investment advisers
or banks it engages. Soliciting Dealer further agrees to comply with the record keeping requirements of the Exchange Act, including,
but not limited to, Rules 17a-3 and 17a-4 promulgated under the Exchange Act. Soliciting Dealer agrees to make such documents and
records available to the Dealer Manager and the Company upon request, and representatives of the Commission and FINRA upon Soliciting
Dealer’s receipt of an appropriate document subpoena or other appropriate request for documents from any such agency.
5.
Delivery of Prospectus and Approved Sales Literature.
(a)
Soliciting Dealer will: (i) deliver a Prospectus, as then supplemented or amended, to each person who subscribes
for Preferred Shares prior to the tender of such person’s subscription agreement (the “Subscription Agreement”);
(ii) promptly comply with the written request of any person for a copy of the Prospectus, as then supplemented or amended, prior
to the termination of the Offering; (iii) deliver to any person, in accordance with applicable law or as prescribed by any state
securities administrator, a copy of any prescribed document included within the Registration Statement and any supplements thereto
during the course of the Offering; (iv) not use any sales materials in connection with the solicitation of purchasers of the Preferred
Shares except Approved Sales Literature (as defined below); (v) to the extent the Company provides Approved Sales Literature, not
use such Approved Sales Literature unless accompanied or preceded by the Prospectus, as then amended or supplemented; and (vi)
not give or provide any information or make any representation or warranty other than information or representations contained
in the Prospectus or the Approved Sales Literature. Soliciting Dealer will not publish, circulate or otherwise use any other advertisement
or solicitation material in connection with the Offering without the Dealer Manager’s express prior written approval. As
used in this Agreement, “Approved Sales Literature” has the meaning set forth in the Dealer Manager Agreement,
but excludes material or writing marked “broker-dealer use only” or otherwise bearing a legend denoting that it is
not to be used in connection with the offer or sale of Preferred Shares.
(b)
Nothing contained in this Agreement shall be deemed or construed to make Soliciting Dealer an employee, agent, representative
or partner of the Dealer Manager or the Company, and Soliciting Dealer is not authorized to act for the Dealer Manager or the Company.
(c)
Soliciting Dealer will not send or provide supplements to the Prospectus or any Approved Sales Literature to any
prospective investor unless it has previously sent or provided a Prospectus and all supplements thereto to that prospective investor
or has simultaneously sent or provided a Prospectus and all supplements thereto with such Prospectus supplement or Approved Sales
Literature.
(d)
Soliciting Dealer will not make any public oral communications relating to the Offering that have not been previously
approved by the Company.
(e)
Notwithstanding anything to the contrary that may be contained in this Agreement, Soliciting Dealer will not show
to, or provide any prospective investor with, or reproduce any material or writing which is supplied to it by the Dealer Manager
and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection
with the offer or sale of Preferred Shares, to members of the public.
(f)
The Dealer Manager will supply Soliciting Dealer with reasonable quantities of the Prospectus (including any supplements
thereto), as well as any Approved Sales Literature, for delivery to prospective investors as soon as reasonably practicable after
sufficient quantities thereof have been made available to the Dealer Manager by the Company in accordance with the Dealer Manager
Agreement.
(g)
Soliciting Dealer shall furnish a copy of any revised preliminary Prospectus to each person to whom it has furnished
a copy of any previous preliminary Prospectus, and further agrees that it will mail or otherwise deliver all preliminary and final
Prospectuses required for compliance with the provisions of Rule 15c2-8 under the Exchange Act.
(h)
Soliciting Dealer agrees that it will rely upon no statement whatsoever, written or oral, other than the statements
in the final Prospectus (as amended or supplemented from time to time) or in Approved Sales Literature. Soliciting Dealer is not
authorized by the Dealer Manager nor the Company to give any information or to make any representation not contained in the final
Prospectus (as amended or supplemented from time to time) or in Approved Sales Literature in connection with the sale of the Preferred
Shares.
6.
Submission of Orders; Right to Reject Orders.
(a)
With respect to Soliciting Dealer’s participation in any resales or transfers of the Preferred Shares, Soliciting
Dealer agrees to comply with any applicable requirements set forth in Section 3.
(b)
If using Physical Settlement:
(i)
Payments for Preferred Shares shall be made by checks payable to “CIM Commercial Trust Corporation” or
as otherwise directed by the Dealer Manager. Soliciting Dealer shall forward original checks for the purchase of Preferred Shares
together with an original Subscription Agreement (if required by the Dealer Manager), completed, executed and initialed where indicated
by the subscriber as provided for in the Subscription Agreement, to an institution directed by the Dealer Manager (the “Closing
Agent”) at the address provided in the Subscription Agreement.
(ii) When
Soliciting Dealer’s internal supervisory procedures are conducted at the site at which the Subscription Agreement and
check for the purchase of Preferred Shares were initially received by Soliciting Dealer from the subscriber, Soliciting
Dealer shall transmit the Subscription Agreement and check for the purchase of Preferred Shares to the Closing Agent (or such
other third party as directed by the Dealer Manager) by the end of the next business day following receipt of the check and
Subscription Agreement. When, pursuant to Soliciting Dealer’s internal supervisory procedures, Soliciting
Dealer’s final internal supervisory procedures are conducted at a different location (the “Final Review
Office”), Soliciting Dealer shall transmit the check for the purchase of Preferred Shares and Subscription
Agreement to the Final Review Office by the end of the next business day following Soliciting Dealer’s receipt of the
Subscription Agreement and check for the purchase of Preferred Shares. The Final Review Office will, by the end of the next
business day following its receipt of the Subscription Agreement and check for the purchase of Preferred Shares, forward both
the Subscription Agreement and check for the purchase of Preferred Shares to the Closing Agent (or such other third party as
directed by the Dealer Manager). If any Subscription Agreement solicited by Soliciting Dealer is rejected by the Company,
then the Subscription Agreement and check will be returned to the rejected subscriber within ten business days from the date
of rejection. As used in this Agreement, “business day” means any day other than a Saturday, Sunday or a day on
which banking institutions in the State of New York, the State of Texas or the State of California are authorized or
obligated by law or executive order to close.
(iii)
Notwithstanding the foregoing, in accordance with the applicable Exchange Act Rules and Regulations, if Soliciting
Dealer has net capital of $250,000 or more, it may instruct its customers to make their checks payable to Soliciting Dealer. In
such case, Soliciting Dealer shall issue a check made payable to the Closing Agent in accordance with the foregoing provisions
of this Section 6(b), as applicable.
(c)
If using Electronic Settlement, the Soliciting Dealer will coordinate for payment in connection with their electronically
placed orders.
(d)
All orders, whether initial or additional, are subject to acceptance by and shall become effective upon confirmation
by the Company, which reserves the right to reject any order in its sole discretion for any or no reason. Orders not accompanied
by the required instrument of payment for Preferred Shares may be rejected. Issuance and delivery of a Preferred Share will be
made only after a sale of a Preferred Share is deemed by the Company to be completed in accordance with Section 5(c) of the Dealer
Manager Agreement. If an order is rejected, cancelled or rescinded for any reason, then Soliciting Dealer will return to the Dealer
Manager any selling commissions or Dealer Manager Fees theretofore paid with respect to such order, and, if Soliciting Dealer fails
to so return any such selling commissions or Dealer Manager Fees, the Dealer Manager shall have the right to offset amounts owned
against future commissions or Dealer Manager Fees due and otherwise payable to Soliciting Dealer (it being understood and agreed
that such right to offset shall not be in limitation of any other rights or remedies that the Dealer Manager may have in connection
with such failure).
7.
Soliciting Dealer’s Compensation.
(a) Subject
to the terms and conditions set forth herein and in the Dealer Manager Agreement, the Dealer Manager shall pay to Soliciting
Dealer a selling commission of up to 5.5 % of the selling price of each share of Series A Preferred Stock sold by it and
accepted and confirmed by the Company. No selling commissions will be paid in respect of any shares of Series D Preferred
Stock sold in the Offering. For purposes of this Section 7(a), Preferred Shares are “sold” only if an
executed Subscription Agreement is accepted by the Company and the Company has thereafter distributed the selling commission
to the Dealer Manager in connection with such transaction pursuant to the Dealer Manager Agreement.
(b) Notwithstanding
the foregoing, it is understood and agreed that no selling commission shall be payable with respect to particular Preferred
Shares if the Company rejects a proposed subscriber’s Subscription Agreement. Accordingly, Soliciting Dealer shall have
no authority to issue a confirmation (pursuant to Exchange Act Rule 10b-10) to any subscriber, such authority residing solely
in the Dealer Manager, as the dealer manager and processing broker-dealer of the Offering.
(c)
The Dealer Manager may, in its sole discretion, re-allow all or any portion of the Upfront Dealer Manager Fee received
by it to Soliciting Dealer. Subject to the immediately succeeding paragraph, the Dealer Manager or the Soliciting Dealer may, in
its respective sole discretion, request the Company to reimburse to Soliciting Dealer for any bona fide due diligence expenses
to the extent that such expenses have been approved in each case by the Company in advance, actually been incurred and are supported
by detailed and itemized invoice(s) provided to the Company and permitted pursuant to the rules and regulations of FINRA.
(d)
Allowable marketing expenses, such as Soliciting Dealer conferences, that have been pre-approved by the Company,
may be advanced to Soliciting Dealer and later deducted from the portion of the Upfront Dealer Manager Fee re-allowed to that Soliciting
Dealer (or, if not so deducted, the Soliciting Dealer hereby agrees to reimburse the Company directly for any portion of such allowable
marketing expenses). If the Offering is not consummated, Soliciting Dealer will repay any such advance to the Dealer Manager and/or
the Company, as the case may be, to the extent not expended on marketing expenses, and to the extent permitted by FINRA Rule 2310.
Any such advance shall be deducted from the maximum amount of the Upfront Dealer Manager Fee that may otherwise be re-allowable
to Soliciting Dealer. Notwithstanding anything herein to the contrary, Soliciting Dealer will not be entitled to receive any portion
of the Upfront Dealer Manager Fee which would cause the aggregate amount of selling commissions, dealer manager fees, other expenses
incurred by the Dealer Manager or Soliciting Dealers associated with the Offering, which are paid by or reimbursed by the Company,
the Manager or other party, which are deemed components of underwriter compensation and other forms of underwriting compensation,
including non-cash compensation (as defined in accordance with applicable FINRA rules, including, but not limited to FINRA Rule
2310(c)(2)(iii)) received by the Dealer Manager and all Soliciting Dealers to exceed 10% of the gross proceeds raised from the
sale of Preferred Shares in the Offering.
(e)
The Company will not be liable or responsible to Soliciting Dealer for the payment of any selling commissions or
fees or any reallowance of selling commissions or fees to Soliciting Dealer, such payment and reallowance of selling commissions
and fees being the sole and exclusive responsibility of the Dealer Manager (to the extent set forth in this Agreement). Soliciting
Dealer acknowledges and agrees that the Dealer Manager’s liability for selling commissions and fees payable to Soliciting
Dealer is limited solely to selling commissions and fees received by the Dealer Manager from the Company pursuant to the Dealer
Manager Agreement in connection with Soliciting Dealer’s sale of Preferred Shares.
8. Reserved
Preferred Shares. The number of Preferred Shares, if any, to be reserved for sale by each Soliciting Dealer may be
decided by, from time to time, the Dealer Manager with the prior approval of the Company. The Dealer Manager reserves the
right to notify Soliciting Dealer by U.S. mail or by other means of the number of Preferred Shares reserved for sale by
Soliciting Dealer, if any. Such Preferred Shares will be reserved for sale by Soliciting Dealer until the time specified in
the Dealer Manager’s notification to Soliciting Dealer. Sales of any reserved Preferred Shares after the time specified
in the notification to Soliciting Dealer or any requests for additional Preferred Shares will be subject to rejection in
whole or in part.
9.
Dealer Manager’s Authority. Subject to the Dealer Manager Agreement, the Dealer Manager shall have full
authority to take such action as it may deem advisable with respect to all matters pertaining to the Offering or arising thereunder.
Except for obligations and liabilities expressly assumed by the Dealer Manager hereunder, the Dealer Manager shall not have any
liability to Soliciting Dealer for or in respect of: (a) the validity or value of or title to, the Preferred Shares; (b) the form
of, or the statements contained in, or the validity of, the Registration Statement, the Prospectus or any amendment or supplement
thereto; (c) any instrument executed by the Company or by others; (d) the form or validity of the Dealer Manager Agreement or this
Agreement; (e) the delivery of the Preferred Shares; (f) the performance by the Company or by others of any agreement on its or
their part; (g) the qualification of the Preferred Shares for sale under the laws of any jurisdiction; or (h) any matter in connection
with any of the foregoing; provided, however, that nothing in this Section 9 shall be deemed to relieve the Company
or the Dealer Manager from any liability imposed by the Securities Act. No obligations or liability on the part of the Company
or the Dealer Manager shall be implied or inferred herefrom.
10.
Conditions to the Effectiveness of this Agreement. This Agreement and the rights and obligations of the parties
hereunder shall be subject to the following conditions:
(a)
The Dealer Manager Agreement shall have been executed and be in force and effect.
(b)
The Registration Statement shall be effective and no stop order suspending the effectiveness of the Registration
Statement shall have been issued by the Commission.
(c)
FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of
the terms and arrangements of the distribution of Preferred Shares pursuant to the Offering.
11.
Indemnification.
(a)
Under the Dealer Manager Agreement, the Company has agreed to indemnify Soliciting Dealer and the Dealer Manager
and each person, if any, who controls Soliciting Dealer or the Dealer Manager, in certain instances and against certain liabilities,
including liabilities under the Securities Act in certain circumstances. Soliciting Dealer hereby agrees to indemnify the Company
and each person who controls it as provided in the Dealer Manager Agreement and to indemnify the Dealer Manager to the extent and
in the manner that Soliciting Dealer agrees to indemnify the Company in the Dealer Manager Agreement.
(b) In
furtherance of, and not in limitation of the foregoing, Soliciting Dealer will indemnify, defend and hold harmless the Dealer
Manager and the Company, and their officers, directors, employees, members, partners, affiliates, agents and representatives,
and each person, if any, who controls such entity within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, and each person who has signed the Registration Statement (“Indemnified Parties”),
from and against any losses, claims, damages or liabilities to which any of the Indemnified Parties, and each person who
signed the Registration Statement, may become subject, under the Securities Act or the Exchange Act, or otherwise, insofar as
such losses, claims and expenses (including the reasonable legal and other expenses incurred in investigating and defending
any such claims or liabilities), damages or liabilities (or actions in respect thereof) arise out of or are based upon or are
related to (in whole or in part): (i) any material inaccuracy in a representation or warranty contained herein by the
Soliciting Dealer, any material breach of a covenant contained herein by the Soliciting Dealer, or any material failure by
the Soliciting Dealer to perform its obligations hereunder or to comply with state or federal securities laws applicable to
the Offering; (ii) any use of sales literature, including “broker dealer use only” materials, by Soliciting
Dealer that is not Approved Sales Literature or use of unauthorized oral communications relating to the Offering by the
Dealer Manager or any Soliciting Dealer; (iii) any untrue statement or any alleged untrue statement made by Soliciting Dealer
or its representatives or agents or omission or alleged omission by Soliciting Dealer or its representatives or agents to
state a fact necessary in order to make the statements made, in light of the circumstances under which they were made, not
misleading in connection with the offer and sale of the Preferred Shares in each case, other than statements or omissions
made in conformity with the Registration Statement, Prospectus, Approved Sales Literature or any other materials or
information furnished by or on behalf of the Company; or (iv) any failure by Soliciting Dealer to comply with applicable laws
governing money laundry abatement and anti-terrorist financing efforts in connection with the Offering, including applicable
FINRA Rules, Exchange Act Rules and Regulations and the USA PATRIOT Act (as defined below). Soliciting Dealer will reimburse
the aforesaid parties for any reasonable legal or other expenses incurred in connection with investigation or defense of such
loss, claim, expense, damage, liability or action. This indemnity agreement will be in addition to any liability which
Soliciting Dealer may otherwise have.
(c) Promptly
after receipt by any Indemnified Party under this Section 11 of notice of the commencement of any action, such
Indemnified Party will, if a claim in respect thereof is to be made against any indemnifying party under this Section
11, promptly notify the indemnifying party of the commencement thereof; provided, however, that the failure to
give such notice shall not relieve the indemnifying party of its obligations hereunder except to the extent it shall have
been actually prejudiced by such failure. In case any such action is brought against any Indemnified Party, and it notifies
an indemnifying party of the commencement thereof, the indemnifying party will be entitled, to the extent it may wish,
jointly with any other indemnifying party similarly notified, to participate in the defense thereof, with counsel (including
local counsel) (the “Chosen Counsel”) satisfactory to such Indemnified Party (who shall not, except with
the consent of the Indemnified Party, be counsel to the indemnifying party), and after notice from the indemnifying party to
such Indemnified Party of its election so to assume the defense thereof, the indemnifying party will not be liable to such
Indemnified Party under this Section 11 for any legal or other expenses subsequently incurred by such Indemnified
Party in connection with the defense thereof, other than reasonable costs of investigation, unless (i) the use of
counsel (including local counsel) chosen by the indemnifying party to represent the Indemnified Party would present such
counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include
both the Indemnified Party and the indemnifying party and the Indemnified Party shall have reasonably concluded that there
may be one or more legal defenses available to it and/or other Indemnified Party that are different from or additional to
those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after receipt by the
indemnifying party of notice of the institution of such action, or (iv) the indemnifying party has authorized in writing
the employment of counsel for the Indemnified Party at the expense of the indemnifying party; provided, however,
that the indemnifying party shall not, in connection with any one such action or proceeding or separate but substantially
similar actions or proceedings arising out of the same general allegations, be liable for the fees and expenses of more than
one separate firm of attorneys in addition to the Chosen Counsel at any time for all Indemnified Parties hereunder. Upon
assumption by the indemnifying party of the defense thereof, the Indemnified Party shall have the right to participate in
such action or claim and to retain its own counsel but, except as set forth in clauses (i) through (iv) of the preceding
sentence, the indemnifying party shall not be liable to such Indemnified Party for any legal fees and expenses of other
counsel subsequently incurred by such Indemnified Party in connection with the defense thereof. Any such indemnifying party
shall not be liable to any such Indemnified Party on account of any settlement of any claim or action effected without the
consent of such indemnifying party, such consent not to be unreasonably withheld or delayed.
12.
Contribution. If the indemnification provided for in Section 11 is for any reason unavailable to or
insufficient to hold harmless an Indemnified Party in respect of any losses, liabilities, claims, damages or expenses referred
to therein, the contributions provisions set forth in Section 11 of the Dealer Manager Agreement shall be applicable.
13.
Company as Party to Agreement. Each of the Company and the Manager shall be a third-party beneficiary of Soliciting
Dealer’s representations, warranties, covenants and agreements contained in this Agreement. No provision of this Agreement
may be amended or waived without the prior written consent of the Company and the Manager. The Company shall have all enforcement
rights in law and in equity with respect to those portions of this Agreement as to which it is third party beneficiary.
14.
Privacy Laws; Compliance. Soliciting Dealer agrees to: (a) abide by and comply with (i) the privacy standards
and requirements of the Gramm-Leach-Bliley Act of 1999 (the “GLB Act”); (ii) the privacy standards and
requirements of any other applicable federal or state law; and (iii) Soliciting Dealer’s own internal privacy policies and
procedures, each as may be amended from time to time; (b) refrain from the use or disclosure of nonpublic personal information
(as defined under the GLB Act) of all customers who have opted out of such disclosures, except as necessary to service the customers
or as otherwise necessary or required by applicable law; and (c) determine which customers have opted out of the disclosure of
nonpublic personal information by periodically reviewing and, if necessary, retrieving an aggregated list of such customers (the
“List”) as provided by each to identify customers that have exercised their opt-out rights. If either
party uses or discloses nonpublic personal information of any customer for purposes other than servicing the customer, or as otherwise
required by applicable law, that party will consult the List to determine whether the affected customer has exercised his or her
opt-out rights. Each party understands that it is prohibited from using or disclosing any nonpublic personal information of any
customer that is identified on the List as having opted out of such disclosures.
15. Anti-Money
Laundering Compliance Programs. Soliciting Dealer represents to the Dealer Manager and to the Company that it has
established and implemented anti-money laundering compliance programs (“AML Program”) in accordance
with applicable law, including applicable FINRA Conduct Rules, the Exchange Act Rules and Regulations and the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended
(the “USA PATRIOT Act”), specifically including, but not limited to, Section 352 of the
International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001 (the “Money Laundering
Abatement Act,” and together with the USA PATRIOT Act, the “AML Rules”) reasonably
expected to detect and cause the reporting of suspicious transactions in connection with the offering and sale of the
Preferred Shares. Soliciting Dealer further represents that it currently is in compliance with all AML Rules, specifically
including, but not limited to, the Customer Identification Program requirements under Section 326 of the Money Laundering
Abatement Act, and Soliciting Dealer hereby covenants to remain in compliance with such requirements and shall, upon request
by the Dealer Manager or the Company, provide a certification to the Dealer Manager or the Company, that, as of the date of
such certification (a) its AML Program is consistent with the AML Rules, and (b) it is currently in compliance with all AML
Rules, specifically including, but not limited to, the Customer Identification Program requirements under Section 326 of the
Money Laundering Abatement Act. Upon request by the Dealer Manager at any time, Soliciting Dealer will (i) furnish a written
copy of its AML Program to the Dealer Manager for review, and (ii) furnish a copy of the findings and any remedial actions
taken in connection with its most recent independent testing of its AML Program.
16.
Confidentiality. Each party to this Agreement agrees to maintain all information received from the other party
pursuant to this Agreement in confidence, and each party to this Agreement agrees not to use any such information for any purpose,
or disclose any such information to any person or entity, except as permitted by this Agreement or applicable laws, rules and regulations.
This Section 16 shall survive the termination or expiration of this Agreement.
17.
Non-Solicitation. Subject to this Section 17, the Dealer Manager agrees that it will not (and the Dealer
Manager will use reasonable good faith efforts to ensure that its employees and representatives do not) solicit business from any
of Soliciting Dealer’s contacts or customers or knowingly recruit any of Soliciting Dealer’s independent registered
representatives. Notwithstanding the foregoing, the Dealer Manager may solicit Soliciting Dealer’s contacts, customers or
independent registered representatives but only to the extent that the Dealer Manager can demonstrate a relationship with such
contacts, customers or independent registered representatives that was not derived through the efforts of Soliciting Dealer’s
representatives who are engaged in selling efforts directly in connection with the Offering. This Section 17 shall survive
the termination or expiration of this Agreement.
18.
Miscellaneous.
(a)
Soliciting Dealer hereby authorizes and ratifies the execution and delivery of the Dealer Manager Agreement by the
Dealer Manager as the dealer manager of the Offering for itself and on behalf of all Soliciting Dealers, including Soliciting Dealer
party hereto, and authorizes the Dealer Manager to agree to any variation of the terms or provisions of the Dealer Manager Agreement
and to execute and deliver any amendment, modification or supplement thereto. Soliciting Dealer hereby agrees to be bound by all
provisions of the Dealer Manager Agreement relating to Soliciting Dealers. Soliciting Dealer also authorizes the Dealer Manager
to exercise, in the Dealer Manager’s discretion, all the authority or discretion now or hereafter vested in the Dealer Manager
by the provisions of the Dealer Manager Agreement and to take all such actions as the Dealer Manager may believe desirable in order
to carry out the provisions of the Dealer Manager Agreement and of this Agreement.
(b)
This Agreement, except for the provisions of Sections 9, 11, 12, 13, 14, 16,
17, and 18, may be terminated at any time by either party hereto upon five business days’ prior written notice
to the other party and, in all events, this Agreement shall terminate on the termination date of the Dealer Manager Agreement,
except for the provisions of Sections 9, 11, 12, 13, 14, 16, 17, and 18,
which shall survive the expiration or earlier termination of this Agreement.
(c)
Any notice, waiver, consent, approval or other communication (each, a “Notice”) from Soliciting
Dealer shall be in writing addressed to the Dealer Manager at:
CCO Capital, LLC
2398 East Camelback Road, 4th
Floor
Phoenix, AZ 85016
Attention: President
Any notice from the
Dealer Manager to Soliciting Dealer shall be in writing and addressed to Soliciting Dealer at Soliciting Dealer’s address
appearing following its signature below, or if such address is no longer valid, then at the address set forth in reports filed
by Soliciting Dealer with FINRA. Any such notice will take effect upon receipt thereof.
Each Notice shall be
deemed to have been duly given and effective upon actual receipt (or refusal of receipt). Any party may by Notice to the other
parties given in accordance with this Section 18(c) designate another address or person for receipt of Notices hereunder.
If the address of a party has changed, then such party promptly shall by Notice to the other parties given in accordance with this
Section 18(c) designate a new address for receipt of Notices hereunder. For the avoidance of doubt, if a Notice given in
accordance with this Section 18(c) to a party is returned to the sender as being refused or undeliverable (or having a similar
status), then such Notice to such party shall be deemed to have been duly given and effective on the date that such Notice was
originally sent.
(d)
Nothing herein contained shall constitute the Dealer Manager, Soliciting Dealer, the other Soliciting Dealers or
any of them as an association, partnership, limited liability company, unincorporated business or other separate entity.
(e)
This Agreement shall be effective for all sales by Soliciting Dealer on and after the date of this Agreement.
(f)
The Company may authorize the Company’s transfer agent to provide information to the Dealer Manager and Soliciting
Dealer regarding record holder information about the clients of Soliciting Dealer who have invested with the Company on an on-going
basis for so long as Soliciting Dealer has a relationship with such client. Soliciting Dealer shall not disclose any password for
a restricted website or portion of a restricted website provided to Soliciting Dealer in connection with the Offering and shall
not disclose to any person, other than an officer, director, employee or agent of Soliciting Dealer, any material downloaded from
such restricted website or portion of a restricted website.
(g)
Soliciting Dealer shall have no right to assign this Agreement or any of its rights hereunder or to delegate any
of its obligations hereunder. Any purported assignment or delegation by Soliciting Dealer shall be null and void. The Dealer Manager
shall have the right to assign any or all of its rights and obligations under this Agreement to any other third party by written
notice, and Soliciting Dealer shall be deemed to have consented to such assignment by execution hereof.
(h)
This Agreement may be amended from time to time by consent of the parties hereto. Soliciting Dealer’s consent
will be deemed to have been given to an amendment to this Agreement, and such amendment will be effective, five business days
following written notice to Soliciting Dealer of such amendment if it does not notify the Dealer Manager in writing prior to the
close of business on such fifth business day that Soliciting Dealer does not consent to such amendment. Notwithstanding the foregoing,
Soliciting Dealer agrees that (i) it shall consent to any amendment, supplement or modification of the terms of this Agreement
requested by FINRA, and (ii) any amendment, supplement or modification of the terms of this Agreement will be effective immediately
and Soliciting Dealer’s consent will be deemed to have been given to any such amendment, supplement or modification by its
sale of Preferred Shares or otherwise receiving and retaining an economic benefit for participating in the Offering as a Soliciting
Dealer.
(i)
This Agreement may be executed (including by facsimile or other electronic transmission) with counterpart signature
pages or in counterpart copies, each of which shall be deemed an original but all of which together shall constitute one and the
same instrument comprising this Agreement.
(j)
The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof,
and this Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.
(k)
The failure of any party to insist upon or enforce strict performance by any other party of any provision of this
Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such
party’s right to assert or rely upon any such provision or right in that or any other instance; rather, such provision or
right shall be and remain in full force and effect.
(l)
This Agreement and all claims arising out of or relating to it and the relationships created hereby, shall be governed
by, and construed and enforced in accordance with, the laws of the State of New York, U.S.A. applicable to contracts made and to
be performed wholly within such state. The parties agree to waive trial by jury in any action, proceeding or counterclaim brought
by or on behalf of any of them with respect to any matter whatsoever relating to or arising out of this Agreement. Each party irrevocably
and unconditionally submits to the exclusive jurisdiction of any state or Federal court sitting in New York County, New York over
any suit, action or proceeding arising out of or relating to this Agreement. Each party irrevocably hereby agrees that, without
prejudice to use of other methods of service, service of any process, summons, notice or document by U.S. certified mail, return
receipt requested, addressed to the applicable party at the address that appears on the first page of this Agreement shall be effective
service of process for any action, suit or proceeding brought in any such court.
[Signatures
on following page]
If the foregoing is
in accordance with Soliciting Dealer’s understanding and agreement, please sign and return the attached duplicate of this
Agreement. Soliciting Dealer’s indicated acceptance thereof shall constitute a binding agreement between Soliciting Dealer
and the Dealer Manager.
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Very truly yours,
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CCO CAPITAL, LLC
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By:
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Name:
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Title:
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Dealer Manager Signature Page to
Soliciting Dealer Agreement
The undersigned dealer
confirms its agreement to act as a Soliciting Dealer pursuant to all the terms and conditions of the above Soliciting Dealer Agreement
and the Dealer Manager Agreement attached as Exhibit A hereto. The undersigned dealer hereby represents that it will comply with
the applicable requirements of the Securities Act, the Securities Act Rules and Regulations, the Exchange Act and the Exchange
Act Rules and Regulations. The undersigned dealer represents and warrants that it is duly registered as a broker-dealer under the
provisions of the Exchange Act and the Exchange Act Rules and Regulations or is exempt from such registration. The undersigned
dealer confirms that it and each salesperson acting on its behalf are members in good standing of FINRA and duly licensed by the
regulatory authority in the state in which its principal office is located, or are exempt from registration with such authorities.
The undersigned dealer hereby represents that it will comply with the Rules of FINRA, all rules and regulations promulgated by
FINRA and all applicable laws, rules and regulations.
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Dated: ______________, 2020
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Name of Soliciting Dealer
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Federal Identification Number
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By:
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Name:
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Attention:
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EXHIBIT
A
(Dealer Manager Agreement)
Exhibit 3.2
CIM COMMERCIAL
TRUST CORPORATION
Articles Supplementary
Series D Preferred Stock
CIM Commercial Trust Corporation, a Maryland
corporation (the “Corporation”), hereby certifies to the State Department of Assessments and Taxation of Maryland
that:
FIRST: Under a power contained in
Article VI of the charter of the Corporation (the “Charter”) and Section 2-105 of the Maryland General Corporation
Law, the Board of Directors of the Corporation (the “Board of Directors”) by duly adopted resolutions classified
and designated 32,000,000 shares of authorized but unissued preferred stock, $0.001 par value per share, of the Corporation as
shares of Series D Preferred Stock, with the following preferences, rights, voting powers, restrictions, limitations as to dividends
and other distributions, qualifications, and terms and conditions of redemption, which, upon any restatement of the Charter, shall
become part of Article VI of the Charter, with any necessary or appropriate renumbering or relettering of the sections or subsections
hereof.
Series D Preferred Stock
1.
Designation and Number. A series of Preferred Stock, designated the “Series D Preferred Stock”
(the “Series D Preferred Stock”), is hereby established. The par value of the Series D Preferred Stock is $0.001
per share. The number of shares of the Series D Preferred Stock shall be 32,000,000.
2.
Definitions. In addition to the capitalized terms elsewhere defined herein, the following terms, when used
herein, shall have the meanings indicated:
(a)
“Charter” shall mean the charter of the Corporation.
(b)
“NASDAQ” shall mean the Nasdaq Global Market.
(c)
“Person” shall mean an individual, corporation, association, partnership, limited liability company,
joint venture, trust, unincorporated organization, government or political subdivision thereof or governmental agency or other
entity.
(d)
“Series A Preferred Stock” shall mean the Series A Preferred Stock, par value $0.001 per share,
of the Corporation.
(e)
“Series D Stated Value” shall mean $25.00 per share, subject to adjustment pursuant to Section
13.
(f)
“Series L Preferred Stock” shall mean the Series L Preferred Stock, par value $0.001 per share,
of the Corporation.
(g)
“Series L Stated Value” shall mean “Series L Stated Value” as defined in the Charter.
(h)
“Trading Day” shall mean, (i) if the Common Stock (as defined in the Charter) is listed or admitted
to trading on NASDAQ, a day on which NASDAQ is open for the transaction of business, (ii) if the Common Stock is not listed or
admitted to trading on NASDAQ but is listed or admitted to trading on another national securities exchange or automated quotation
system, a day on which such national securities exchange or automated quotation system, as the case may be, on which the Common
Stock is listed or admitted to trading is open for the transaction of business, or (iii) if the Common Stock is not listed or admitted
to trading on any national securities exchange or automated quotation system, any day other than a Saturday, a Sunday or a day
on which banking institutions in the State of New York are authorized or obligated by law or executive order to close.
(i)
“VWAP” shall mean, for any Trading Day, the volume-weighted average price, calculated by dividing
the aggregate value of Common Stock traded on NASDAQ during regular hours (price per share multiplied by number of shares traded)
by the total volume (number of shares) of Common Stock traded on NASDAQ (or such other national securities exchange or automated
quotation system on which the Common Stock is listed) for such Trading Day, or if such volume-weighted average price is unavailable,
the market value of one share of Common Stock on such Trading Day as determined by the Board of Directors in a commercially reasonable
manner, using a volume-weighted average price method.
3.
Rank.
(a)
The Series D Preferred Stock shall, with respect to rights to the payment of dividends and other distributions (excluding
the distribution of assets referenced in Section 3(b)), rank (i) senior to the Series L Preferred Stock, all classes or
series of Common Stock and any other class or series of stock of the Corporation the terms of which specifically provide that the
holders of the Series D Preferred Stock are entitled to receive dividends and other distributions in preference or priority to
the holders of shares of such class or series (the “Junior Dividend Stock”); (ii) on a parity with the Series
A Preferred Stock and any other class or series of stock of the Corporation the terms of which specifically provide that the holders
of such class or series of stock and the Series D Preferred Stock are entitled to receive dividends and other distributions on
parity and without preference or priority of one over the other (the “Parity Dividend Stock”); and (iii) junior
to any class or series of stock of the Corporation the terms of which specifically provide that the holders of such class or series
are entitled to receive dividends and other distributions in preference or priority to the holders of the Series D Preferred Stock
(the “Senior Dividend Stock”).
(b) The
Series D Preferred Stock shall, with respect to rights to the distribution of assets upon the liquidation, dissolution or
winding up of the Corporation, rank (i) senior to the Series L Preferred Stock (except as described in Section 3(b)(ii) below),
all classes or series of Common Stock and any other class or series of stock of the Corporation the terms of which
specifically provide that the holders of the Series D Preferred Stock are entitled to receive amounts distributable upon the
liquidation, dissolution or winding up of the Corporation in preference or priority to the holders of shares of such class or
series (the “Junior Liquidation Stock”, and together with the Junior Dividend Stock, the “Junior
Stock”); (ii) on a parity with the Series A Preferred Stock, the Series L Preferred Stock, to the extent of the
Series L Stated Value, and any other class or series of stock of the Corporation the terms of which specifically provide that
the holders of such class or series of stock and the Series D Preferred Stock are entitled to receive amounts distributable
upon the liquidation, dissolution or winding up of the Corporation in proportion to their respective amounts of liquidation
preferences, on parity and without preference or priority of one over the other (the “Parity Liquidation
Stock”, and together with the Parity Dividend Stock, the “Parity Stock”); and (iii) junior to
any class or series of stock of the Corporation the terms of which specifically provide that the holders of such class or
series are entitled to receive amounts distributable upon the liquidation, dissolution or winding up of the Corporation in
preference or priority to the holders of the Series D Preferred Stock (the “Senior Liquidation
Stock”).
4.
Dividends.
(a)
Subject to the preferential rights of holders of any class or series of Senior Dividend Stock, holders of the Series
D Preferred Stock shall be entitled to receive, when and as authorized by the Board of Directors and declared by the Corporation,
out of funds legally available for the payment of dividends, preferential cumulative cash dividends at the rate of 5.65% per annum
of the Series D Stated Value (initially equivalent to a fixed annual rate of $1.4125 per share). The dividends on each share of
Series D Preferred Stock shall be cumulative from (and including) the first date on which such share of Series D Preferred Stock
is issued and shall be payable (i) quarterly on the 15th day of the month following the quarter for which the dividend was
declared or, if not a business day, the next succeeding business day or (ii) as the Board of Directors (or an authorized officer
of the Corporation delegated by the Board of Directors) may decide in its discretion from time to time, more frequently than quarterly,
with such dividends to be payable on such dates as determined by the Board of Directors (or an authorized officer of the Corporation
delegated by the Board of Directors) (each such date, a “Dividend Payment Date”). Any dividend payable on the
Series D Preferred Stock for any partial dividend period shall be computed ratably on the basis of a 360-day year consisting of
twelve 30-day months. Dividends shall be payable in arrears to holders of record as they appear in the stock records of the Corporation
at the close of business on the applicable record date (the “Dividend Record Date”), which shall be a day of
the month in which the applicable Dividend Payment Date occurs, with such date determined by the Board of Directors from time to
time in its sole discretion. The term “business day” shall mean any day, other than Saturday, Sunday, or a day
on which banking institutions in the State of New York are authorized or obligated by law to close, or a day which is or is declared
a national or a New York state holiday.
(b)
Holders of Series D Preferred Stock shall not be entitled to any dividends on the Series D Preferred Stock in excess
of the dividends provided for in Section 4(a).
(c)
No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments
on the Series D Preferred Stock that may be in arrears.
(d)
When dividends are not paid in full upon the Series D Preferred Stock or any other class or series of Parity Dividend
Stock, or a sum sufficient for such payment is not set apart, all dividends declared upon the Series D Preferred Stock and any
shares of Parity Dividend Stock shall be declared ratably in proportion to the respective amounts of dividends accumulated, accrued
and unpaid on the Series D Preferred Stock and accumulated, accrued and unpaid on such Parity Dividend Stock (which shall not include
any accumulation in respect of unpaid dividends for prior dividend periods if such Parity Dividend Stock does not have a cumulative
dividend).
(e)
Except as set forth in the preceding paragraph, unless full cumulative dividends equal to the full amount of all
accumulated, accrued and unpaid dividends on the Series D Preferred Stock have been, or are concurrently therewith, declared and
paid, or declared and set apart for payment, for all past dividend periods,
(i)
no dividends or other distributions shall be declared and paid or declared and set apart for payment by the Corporation
and no other distribution of cash or other property may be declared and made (other than dividends or distributions paid in shares
of Junior Stock or options, warrants or rights to subscribe for or purchase shares of Junior Stock), directly or indirectly, by
the Corporation with respect to any shares of Junior Dividend Stock or Parity Dividend Stock,
(ii)
nor shall any shares of Junior Dividend Stock or Parity Dividend Stock be redeemed, purchased or otherwise acquired
(other than a redemption, purchase or other acquisition of Common Stock made for purposes of an equity incentive or benefit plan
of the Corporation) for any consideration (or any monies be paid to or made available for a sinking fund for the redemption of
any shares of any such stock), directly or indirectly, by the Corporation (except by conversion into or exchange for shares of
Junior Stock, or options, warrants or rights to subscribe for or purchase shares of Junior Stock).
(f)
Notwithstanding the foregoing provisions of this Section 4, the Corporation shall not be prohibited from (i)
declaring or paying or setting apart for payment any dividend or other distribution on any shares of Junior Stock or Parity Stock
or (ii) redeeming, purchasing or otherwise acquiring any Junior Stock or Parity Stock, in each case, if such declaration, payment,
setting apart for payment, redemption, purchase or other acquisition is necessary in order to maintain the continued qualification
of the Corporation as a real estate investment trust under Section 856 of the Code (as defined in the Charter).
5.
Liquidation Preference.
(a)
Upon any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, after satisfaction of
liabilities to creditors and subject to the preferential rights of holders of any class or series of Senior Liquidation Stock,
before any payment or distribution by the Corporation shall be made to or set apart for the holders of any shares of Junior Liquidation
Stock, the holders of shares of the Series D Preferred Stock shall be entitled to be paid out of the assets of the Corporation
that are legally available for distribution to the stockholders, a liquidation preference equal to the Series D Stated Value per
share (the “Liquidation Preference”), plus an amount equal to all accumulated, accrued and unpaid dividends
(whether or not declared) to and including the date of payment. Until the holders of the Series D Preferred Stock have been paid
the Liquidation Preference in full, plus an amount equal to all accumulated, accrued and unpaid dividends (whether or not earned
or declared) to the date of final distribution to such holders, no payment will be made to any holder of Junior Liquidation Stock
upon the liquidation, dissolution or winding up of the Corporation. If upon the voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, the available assets of the Corporation, or proceeds thereof, distributable among the holders
of the Series D Preferred Stock shall be insufficient to pay in full the above described Liquidation Preference and the liquidating
payments on any shares of any class or series of Parity Liquidation Stock, then such assets, or the proceeds thereof, shall be
distributed among the holders of the Series D Preferred Stock and any such Parity Liquidation Stock ratably in the same proportion
as the respective amounts that would be payable on such Series D Preferred Stock and any such Parity Liquidation Stock if all amounts
payable thereon were paid in full. After payment of the full amount of the Liquidation Preference to which they are entitled, the
holders of the Series D Preferred Stock shall have no right or claim to any of the remaining assets of the Corporation.
(b)
Upon any liquidation, dissolution or winding up of the Corporation, after payment shall have been made in full to
the holders of the Series D Preferred Stock and any Parity Liquidation Stock, the holders of any classes or series of Junior Liquidation
Stock shall be entitled to receive any and all assets of the Corporation remaining to be paid or distributed in accordance with
the terms of such classes or terms of Junior Liquidation Stock, and the holders of the Series D Preferred Stock and any Parity
Liquidation Stock shall not be entitled to share therein.
(c)
The consolidation, merger or conversion of the Corporation with or into any other corporation, trust or entity or
of any other corporation, trust or entity with or into the Corporation, or the sale or transfer of all or substantially all of
the assets or business of the Corporation or a statutory share exchange, shall not be deemed to constitute a voluntary or involuntary
liquidation, dissolution or winding up of the Corporation.
(d) In
determining whether a distribution (other than upon voluntary or involuntary liquidation), by dividend, redemption or other
acquisition of shares of stock of the Corporation or otherwise, is permitted under the Maryland General Corporation Law,
amounts that would be needed, if the Corporation were to be dissolved at the time of distribution, to satisfy the
preferential rights upon dissolution of holders of shares of the Series D Preferred Stock shall not be added to the
Corporation’s total liabilities.
6.
Redemption by the Corporation.
(a)
The Series D Preferred Stock is not redeemable at the option of the Corporation prior to the fifth anniversary of
the date of original issuance of any given shares of Series D Preferred Stock.
(b)
From and after the fifth anniversary of the date of original issuance of any given shares of Series D Preferred Stock,
subject to Section 9, the Corporation may, at its option, redeem such shares, in whole or from time to time, in part, at
a redemption price equal to 100% of the Series D Stated Value per share, plus all accumulated, accrued and unpaid dividends, if
any, to and including the date fixed for redemption (the “Corporation Redemption Date”) payable in cash or equal
value through the issuance of Common Stock.
(c)
The Corporation Redemption Date shall be selected by the Corporation and shall be no fewer than 10 nor more than
20 days after the date on which the Corporation sends the notice of redemption.
(d)
If full cumulative dividends on all outstanding shares of Series D Preferred Stock have not been declared and paid
or declared and set apart for payment for all past dividend periods, no shares of the Series D Preferred Stock may be redeemed
pursuant to this Section 6, unless all outstanding shares of the Series D Preferred Stock are simultaneously redeemed, and
neither the Corporation nor any of its affiliates may purchase or otherwise acquire shares of the Series D Preferred Stock otherwise
than pursuant to a purchase or exchange offer made on the same terms to all holders of the Series D Preferred Stock.
(e)
If fewer than all the outstanding shares of Series D Preferred Stock are to be redeemed pursuant to this Section
6, the Corporation shall select those shares to be redeemed pro rata or in such manner as the Board of
Directors may determine.
(f)
Written notice as to the redemption of any shares of Series D Preferred Stock pursuant to this Section 6 shall
be given by first class mail, postage pre-paid, to each such record holder of such shares of Series D Preferred Stock at the respective
mailing addresses of each such holder as the same shall appear on the stock transfer records of the Corporation. No failure to
give such notice or any defect therein or in the mailing thereof shall affect the validity of the proceedings for the redemption
of any such shares of Series D Preferred Stock except as to the holder to whom notice was defective or not given.
(g) In
addition to any information required by law or by the applicable rules of any exchange upon which Series D Preferred Stock
may then be listed or admitted to trading, such notice shall state: (i) the Corporation Redemption Date; (ii) the redemption
price payable on the Corporation Redemption Date, including without limitation a statement as to whether or not accumulated,
accrued and unpaid dividends shall be payable as part of the redemption price, or payable on the next Dividend Payment Date
to the record holder at the close of business on the relevant Dividend Record Date as described in Section 9(b)
below; (iii) whether the redemption price will be paid in cash or Common Stock; and (iv) that dividends on the shares of
Series D Preferred Stock to be redeemed will cease to accrue on such Corporation Redemption Date. If less than all the shares
of Series D Preferred Stock held by any holder are to be redeemed, the notice mailed to such holder also shall specify the
number of shares of Series D Preferred Stock held by such holder to be redeemed.
(h)
If notice of redemption of any shares of Series D Preferred Stock has been given and if the funds necessary for such
redemption have been set apart by the Corporation for the benefit of the holders of any shares of Series D Preferred Stock so called
for redemption, then, from and after the Corporation Redemption Date, dividends will cease to accrue on such shares of Series D
Preferred Stock, such shares of Series D Preferred Stock shall be redeemed in accordance with the notice and shall no longer be
deemed outstanding and all rights of the holders of such shares will terminate, except the right to receive the cash or Common
Stock payable upon such redemption without interest thereon. No further action on the part of the holders of such shares shall
be required.
(i)
Subject to applicable law and the limitation on purchases when dividends on the Series D Preferred Stock are in arrears,
the Corporation may, at any time and from time to time, purchase or otherwise acquire any shares of Series D Preferred Stock in
the open market, by tender or by private agreement.
7.
Redemption at the Option of a Holder.
(a)
Subject to the provisions in this Section 7 and Section 9, each holder of Series D Preferred Stock
may deliver written notice to the Corporation and its agent (“Holder Redemption Notice”) requesting that the
Corporation redeem each share of Series D Preferred Stock held by such holder at a redemption price determined as follows:
(i) On
and after the date of original issuance of any given shares of Series D Preferred Stock until but excluding the second
anniversary from the date of original issuance of such shares, the holder will have the right to require the Corporation to
redeem such shares of Series D Preferred Stock at a redemption price equal to 87% of the Series D Stated Value, plus all
accumulated, accrued and unpaid dividends, if any, to the Holder Redemption Date (as defined below); provided, however, that
the Board of Directors, in its discretion, may from time to time authorize (which authorization may be delegated by the Board
of Directors to any authorized officers of the Corporation) the Corporation to redeem such shares of Series D Preferred Stock
at a redemption price equal to 90 to 100% (inclusive) of the Series D Stated Value, plus all accumulated, accrued and unpaid
dividends, if any, to the Holder Redemption Date. Beginning on the second anniversary of the date of original issuance of any
given shares of Series D Preferred Stock until but excluding the fifth anniversary from the date of original issuance of such
shares, the holder will have the right to require the Corporation to redeem such shares of Series D Preferred Stock at a
redemption price equal to 90% of the Series D Stated Value, plus all accumulated, accrued and unpaid dividends, if any, to
the Holder Redemption Date (as defined below); provided, however, that the Board of Directors, in its discretion, may from
time to time authorize (which authorization may be delegated by the Board of Directors to any authorized officers of the
Corporation) the Corporation to redeem such shares of Series D Preferred Stock at a redemption price equal to 90 to 100%
(inclusive) of the Series D Stated Value, plus all accumulated, accrued and unpaid dividends, if any, to the Holder
Redemption Date.
(ii)
From and after the fifth anniversary from the date of original issuance of any given shares of Series D Preferred
Stock, the holder will have the right to require the Corporation to redeem such shares at a redemption price equal to 100% of the
Series D Stated Value, plus all accumulated, accrued and unpaid dividends, if any, to the Holder Redemption Date (as defined below).
(b)
The Corporation’s obligation to redeem any shares of Series D Preferred Stock is limited to the extent that
(i) the Corporation does not have sufficient funds available to fund any such redemption, in which case the Corporation will be
required to redeem with shares of Common Stock, or (ii) the Corporation is restricted by applicable law, the Charter or contractual
obligations from making such redemption.
(c)
The “Holder Redemption Date” shall be on a date selected by the Corporation that is no later than
45 days after the Holder Redemption Notice is received by the Corporation.
(d)
The Holder Redemption Notice shall specify the number of shares of Series D Preferred Stock to be redeemed.
(e)
If a Holder Redemption Notice has been given to the Corporation and if the funds necessary to pay for the related
redemption have been set apart by the Corporation for the benefit of the holder delivering such Holder Redemption Notice, then,
as of the Holder Redemption Date, dividends will cease to accrue on the shares of Series D Preferred Stock subject to redemption,
such shares of Series D Preferred Stock shall be redeemed and shall no longer be deemed outstanding and all rights of the holders
of such shares will terminate, except the right to receive the cash or Common Stock payable upon such redemption without interest
thereon. No further action on the part of the holder of such shares shall be required.
8.
Optional Redemption Following Death of a Holder.
(a)
Subject to the provisions in this Section 8, beginning on the date of original issuance of the Series D Preferred
Stock to be redeemed and ending on the fifth anniversary of such issuance, the Corporation will redeem shares of Series D Preferred
Stock held by a natural person upon his or her death at the written request of the holder’s estate (the “Estate
Redemption Notice”) at a redemption price equal to the Series D Stated Value, plus accrued and unpaid dividends thereon,
if any, through and including the Estate Redemption Date (defined below); provided, however, that the Corporation’s
obligation to redeem any shares of Series D Preferred Stock is limited to the extent that (i) the Corporation does not have sufficient
funds available to fund any such redemption, in which case the Corporation will be required to redeem with shares of Common Stock,
or (ii) the Corporation is restricted by applicable law, the Charter or contractual obligations from making such redemption.
(b)
The “Estate Redemption Date” shall be on a date selected by the Corporation that is no later than
45 days after the Estate Redemption Notice is received by the Corporation.
(c)
If an Estate Redemption Notice has been given to the Corporation and if the funds necessary to pay for the related
redemption have been set apart by the Corporation for the benefit of the estate delivering such Estate Redemption Notice, then,
as of the redemption date of the Series D Preferred Stock, dividends will cease to accrue on the shares of Series D Preferred Stock
subject to redemption, such shares of Series D Preferred Stock shall be redeemed and shall no longer be deemed outstanding and
all rights of such shares held by such holder’s estate will terminate, except the right to receive the cash or Common Stock
payable upon such redemption without interest thereon. No further action on the part of such holder’s estate shall be required.
9.
Redemption Price.
(a)
The redemption price payable pursuant to any redemption pursuant to Section 6, Section 7 or Section
8 shall be paid in cash or, at the sole discretion of the Corporation, in shares of Common Stock, based on the VWAP of the
Common Stock for the 20 Trading Days immediately preceding the applicable redemption date.
(b)
In the event of any redemption pursuant to Section 6, Section 7 or Section 8, if the applicable
redemption date occurs after a Dividend Record Date and on or prior to the related Dividend Payment Date, the dividend payable
on such Dividend Payment Date in respect of such shares called for redemption shall be payable on such Dividend Payment Date to
the holders of record at the close of business on such Dividend Record Date, and shall not be payable as part of the redemption
price for such shares.
10. No
Fractional Shares. The Corporation shall not issue fractional shares of Common Stock upon any redemption pursuant to Section
6, Section 7 or Section 8, but in lieu of fractional shares, the Corporation shall round down to the
nearest whole number of shares of Common Stock to be issued.
11.
Appointment of Transfer Agent; Mechanics of Redemption.
(a)
The Corporation shall maintain or cause to be maintained a register in which, subject to such reasonable regulations
as it may prescribe, the Corporation shall provide for the registration of shares of Series D Preferred Stock and of transfers
of shares of Series D Preferred Stock for the purpose of registering shares of Series D Preferred Stock and of transfers of shares
of Series D Preferred Stock as herein provided. The initial registrar and transfer agent for the Series D Preferred Stock shall
be American Stock Transfer and Trust Company. The Corporation may appoint one or more additional transfer agents as it shall determine.
The Corporation may change the transfer agent without prior notice to any holder.
(b)
If the Corporation elects to pay the redemption price in Common Stock pursuant to Section 9(a), the Corporation
shall cause the transfer agent for the Common Stock to, as soon as practicable, but not later than three (3) business days after
the applicable redemption date, register the number of shares of Common Stock to which such holder shall be entitled as a result
of such redemption. The Person or Persons entitled to receive the shares of Common Stock issuable upon such redemption shall be
treated for all purposes as the record holder or holders of such shares of Common Stock as of the applicable redemption date.
12.
Status of Shares.
(a)
All shares of Common Stock that may be issued upon redemption of shares of Series D Preferred Stock shall be validly
issued, fully paid and nonassessable.
(b)
Any shares of Series D Preferred Stock that shall at any time have been redeemed pursuant to Section 6, Section
7 or Section 8 or otherwise acquired by the Corporation shall, after such redemption or acquisition, have the status
of authorized but unissued Preferred Stock (as defined in the Charter), without designation as to class or series until such shares
are once more classified and designated as part of a particular class or series by the Board of Directors.
13. Adjustments.
If a redemption of any shares of Series D Preferred Stock pursuant to Section 6, Section 7 or Section 8
occurs less than 20 Trading Days after the Corporation: (i) declaring a dividend or making a distribution on the Common Stock
payable in Common Stock, (ii) subdividing or splitting the outstanding Common Stock, (iii) combining or reclassifying the
outstanding Common Stock into a smaller number of shares or (iv) consolidating with, or merging with or into, any other
Person, or engaging in any reorganization, reclassification or recapitalization that is effected in such a manner that the
holders of Common Stock are entitled to receive stock, securities, cash or other assets with respect to or in exchange for
Common Stock (other than as a cash dividend or other distribution declared by the Corporation), the Series D Stated Value
shall be adjusted so that the redemption of the Series D Preferred Stock less than 20 Trading Days after such event shall
entitle the holder to receive the aggregate number of shares of Common Stock or cash which, if the Series D Preferred Stock
had been redeemed immediately prior to such event, such holder would have owned upon such redemption and been entitled to
receive by virtue of such dividend, distribution, subdivision, split, combination, consolidation, merger, reorganization,
reclassification or recapitalization.
14.
Voting Rights. Holders of the Series D Preferred Stock shall not have any voting rights.
15.
Conversion. The Series D Preferred Stock is not convertible into or exchangeable for any other property or
securities of the Corporation.
SECOND: The shares of Series D Preferred
Stock have been classified and designated by the Board of Directors under the authority contained in the Charter.
THIRD: These Articles Supplementary
have been approved by the Board of Directors in the manner and by the vote required by law.
FOURTH: The undersigned acknowledges
these Articles Supplementary to be the corporate act of the Corporation and, as to all matters or facts required to be verified
under oath, the undersigned acknowledges that, to the best of his knowledge, information and belief, these matters and facts are
true in all material respects and that this statement is made under the penalties of perjury.
[Signatures on following
page]
IN WITNESS WHEREOF, the Corporation has
caused these Articles Supplementary to be signed in its name and on its behalf by its President and attested to by its Chief Executive
Officer on this 28th day of January, 2020.
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ATTEST:
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CIM COMMERCIAL TRUST CORPORATION
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By:
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/s/ David
Thompson
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By:
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/s/ Jan
Salit
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David Thompson
Chief Executive Officer
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Jan Salit
President
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