**EXHIBIT 10.6**

**RAIT FINANCIAL TRUST**

17,500,000 

CommonShares of Beneficial Interest 

(par value $0.01 per share) 

**Capital on DemandTM Sales Agreement**

August 6, 2010 

Ladies andGentlemen: 

RAIT Financial Trust, a Maryland real estate investment trust (the “Company”) and RAITPartnership, L.P., a Delaware limited partnership (the “Partnership”), confirm their agreement (this “Agreement”) with JonesTrading Institutional Services LLC (the “Agent”), as follows: 

1. Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms andsubject to the conditions set forth herein, it may issue and sell through the Agent, up to 17,500,000 (the “Maximum Amount”) common shares of beneficial interest (the “Placement Shares”) of the Company, par value$0.01 per share (the “Common Shares”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Sharesissued and sold under this Agreement shall be the sole responsibility of the Company and that Agent shall have no obligation in connection with such compliance. The issuance and sale of Placement Shares through Agent will be effected pursuant to theRegistration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”), although nothing in this Agreement shall be construed as requiring the Company touse the Registration Statement to issue Common Shares. 

The Company has filed, in accordance with the provisions of theSecurities Act of 1933, as amended (the **“**Securities Act****”) and the rules and regulations thereunder (the “Securities Act Regulations****”), with the Commission a registration statement on Form S-3(File No. 333-152351), including a base prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or willfile in accordance with the provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations thereunder (the “Exchange Act Regulations”). The Company has prepared aprospectus supplement specifically relating to the Placement Shares (the “Prospectus Supplement”) to the base prospectus included as part of such registration statement. The Company will furnish to the Agent, for use by the Agent,copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement, relating to the Placement Shares. Except where the context otherwise requires, such registration statement, any successorregistration statement, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) 

subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B of theSecurities Act Regulations, is herein called the **“**Registration Statement****.” The base prospectus, including all documents incorporated therein by reference, included in the Registration Statement, as it may besupplemented by the Prospectus Supplement, in the form in which such prospectus and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, togetherwith the then issued Issuer Free Writing Prospectus(es) (as defined below), is herein called the “Prospectus.”****

Any reference herein to the Registration Statement, any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall bedeemed to refer to and include the documents, if any, incorporated by reference therein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such IncorporatedDocuments. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall bedeemed to refer to and include the filing of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, asthe case may be, and incorporated therein by reference. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include any copy filed with theCommission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system when used by the Commission (collectively, “EDGAR”). 

2. Placements. Each time that the Company wishes to issue and sell Placement Shares hereunder (each, a“Placement”), it will notify the Agent by email notice (or other method mutually agreed to in writing by the Parties) of the number of Placement Shares, the time period during which sales are requested to be made, any limitation onthe number of Placement Shares that may be sold in any one day and any minimum price below which sales may not be made (a “Placement Notice”), the form of which is attached hereto as Schedule 1. The Placement Notice shall originatefrom any of the individuals from the Company set forth on Schedule 3, and shall be addressed to each of the individuals from the Agent set forth on Schedule 3, as such Schedule 3 may be amended from time to time. The Placement Notice shall beeffective unless and until (i) the Agent declines to accept, by email notice (or other method mutually agreed to in writing by the parties) (a “Rejection Notice”), the terms contained therein for any reason, in its solediscretion, (ii) the entire amount of the Placement Shares thereunder have been sold, (iii) the time period during which sales are requested to be made in the Placement Notice expires, (iv) the Company suspends or terminates thePlacement Notice or (v) the Agreement has been terminated under the provisions of Section 12. The amount of any discount, commission or other compensation to be paid by the Company to Agent in connection with the sale of the PlacementShares shall be calculated in accordance with the terms set forth in Schedule 2. It is expressly acknowledged and agreed that neither the Company nor the Agent will have any obligation whatsoever with respect to a Placement or any Placement Sharesunless and until the Company delivers a Placement Notice to the Agent and the Agent does not decline such Placement Notice pursuant to the terms set forth above, and then only upon the terms specified therein and herein.

 

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In the event of a conflict between the terms of this Agreement and the terms of a Placement Notice, the terms of the Placement Notice will control. 

3. Sale of Placement Shares by Agent. Subject to the provisions of Section 5(a), the Agent, for the period specifiedin the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable state and federal laws, rules and regulations and the rules of the New York Stock Exchange (the“Exchange”), to sell the Placement Shares up to the amount specified, and otherwise in accordance with the terms of such Placement Notice. The Agent will provide written confirmation (a “Confirmation Notice”) to theCompany by email notice (or other method mutually agreed to in writing by the parties) no later than the opening of the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Placement Shares hereundersetting forth the number of Placement Shares sold on such day, the compensation payable by the Company to the Agent pursuant to Section 2 with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with anitemization of the deductions made by the Agent (as set forth in Section 5(b)) from the gross proceeds that it receives from such sales. Subject to the terms of the Placement Notice, the Agent may sell Placement Shares by any methodpermitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act Regulations, including without limitation sales made directly on the Exchange, on any other existing trading market for the CommonShares or to or through a market maker. Subject to the terms of a Placement Notice and with the prior written consent of the Company, the Agent may also sell Placement Shares in a public offering registered pursuant to the Registration Statement tothe Agent as principal for its own account at a price agreed upon at the time of sale (an “Agent Purchase”) provided, however, that if during any period the Agent, together with its affiliates, holds an interest equalto or exceeding 5% of the Company’s outstanding Common Shares or voting power, then the aggregate number of Common Shares the Company may sell to Agent, together with its affiliates, during such period cannot exceed either 1% of theCompany’s outstanding Common Shares or voting power before the sale. If the Company and Agent engage in an Agent Purchase, the Company and Agent will enter into a separate agreement setting forth the terms of such Agent Purchase and the Companywill disclose such agreement in a separate Prospectus Supplement (as defined below). “Trading Day” means any day on which Common Shares are purchased and sold on the Exchange. 

4. Suspension of Sales. The Company or the Agent may, upon notice (a “Suspension Notice”) to the other party inwriting (including by email correspondence to each of the individuals of the other party set forth on Schedule 3, if receipt of such correspondence is actually acknowledged by any of the individuals to whom the notice is sent, other than viaauto-reply) or by telephone (confirmed immediately by verifiable facsimile transmission or email correspondence to each of the individuals of the other party set forth on Schedule 3), suspend any sale of Placement Shares; provided,however, that such suspension shall not affect or impair any party’s obligations with respect to any Placement Shares sold hereunder prior to the receipt of such notice. Each of the parties agrees that no such notice under thisSection 4 shall be effective against any other party unless it is made to one of the individuals named on Schedule 3 hereto, as such Schedule may be amended from time to time. 

 

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5. Sale and Delivery to the Agent; Settlement. 

(a) Sale of Placement Shares**. On the basis of the representations and warranties herein contained and subject to the termsand conditions herein set forth, upon the Agent’s acceptance of the terms of a Placement Notice, and unless the sale of the Placement Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms ofthis Agreement, the Agent, for the period specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Placement Shares up to the amount specified, and otherwisein accordance with the terms of such Placement Notice. The Company acknowledges and agrees that (i) there can be no assurance that the Agent will be successful in selling Placement Shares, (ii) the Agent will incur no liability orobligation to the Company or any other person or entity if it does not sell Placement Shares for any reason other than a failure by the Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices andapplicable law and regulations to sell such Placement Shares as required under this Agreement and (iii) the Agent shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwiseagreed by the Agent and the Company. 

(b) Settlement of Placement Shares**. Unless otherwisespecified in the applicable Placement Notice, settlement for sales of Placement Shares will occur on the third (3rd) Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each, a “Settlement Date”). Theamount of proceeds to be delivered to the Company on a Settlement Date against receipt of the Placement Shares sold (the “Net Proceeds”) will be equal to the aggregate sales price received by the Agent, after deduction for(i) the Agent’s commission, discount or other compensation for such sales payable by the Company pursuant to Section 2 hereof, and (ii) any transaction fees imposed by any governmental or self-regulatory organization in respectof such sales. 

(c) Delivery of Placement Shares. On or before each Settlement Date, the Company will, or will causeits transfer agent to, electronically transfer the Placement Shares being sold by crediting the Agent’s or its designee’s account (provided the Agent shall have given the Company written notice of such designee prior to the SettlementDate) at The Depository Trust Company through its Deposit and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon by the parties hereto which in all cases shall be freely tradable, transferable,registered shares in good deliverable form. On each Settlement Date, the Agent will deliver the related Net Proceeds in same day funds to an account designated by the Company on, or prior to, the Settlement Date. The Company agrees that if theCompany, or its transfer agent (if applicable), defaults in its obligation to deliver Placement Shares on a Settlement Date for any reason other than an error or omission of the Agent, the Company agrees that in addition to and in no way limitingthe rights and obligations set forth in Section 10(a) hereto, it will (i) hold the Agent harmless against any loss, claim, damage, or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection withsuch default by the Company or its transfer agent (if applicable) and (ii) pay to the Agent any commission, discount, or other compensation to which it would otherwise have been entitled absent such default. 

 

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(d) Denominations; Registration**. Certificates for the Placement Shares, ifany, shall be in such denominations and registered in such names as the Agent may request in writing at least one full Business Day (as defined below) before the Settlement Date. The certificates for the Placement Shares, if any, will be madeavailable by the Company for examination and packaging by the Agent in The City of New York not later than noon (New York time) on the Business Day prior to the Settlement Date. 

(e) Limitations on Offering Size**. Under no circumstances shall the Company cause, request or permit the offer or sale ofany Placement Shares if, after giving effect to the sale of such Placement Shares, (a) the aggregate number of Placement Shares sold pursuant to this Agreement would exceed the lesser of (i) the Maximum Amount, or (ii) the number ofPlacement Shares authorized from time to time to be issued and sold under this Agreement by the Company’s board of trustees, a duly authorized committee thereof or a duly authorized executive committee, or (b) the aggregate gross salesproceeds of Placement Shares sold pursuant to this Agreement would exceed the amount available for offer and sale under the Registration Statement. Under no circumstances shall the Company cause, request or permit the offer or sale of any PlacementShares pursuant to this Agreement at a price lower than the minimum price authorized from time to time by the Company’s board of trustees, a duly authorized committee thereof or a duly authorized executive committee set forth in the relatedPlacement Notice. 

(f) The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of CommonShares shall only be effected by or through the Agent on any single given day; provided**, however**, that the foregoing limitation shall not apply to any of the following transactions (each, a “PermittedTransaction”): 

(i) any transaction where Common Shares are issued on any day during which a Placement Notice is noteffective, subject to any explicit restriction contained in this Agreement that is otherwise applicable; 

(ii) theCompany’s offer to sell, solicitation of an offer to buy, or any sales or other issuance of : 

(1) Common Shares,phantom units redeemable for Common Shares, options to purchase Common Shares or any other securities that are redeemable, exercisable, exchangeable for, or are otherwise derivative securities with respect to, Common Shares, and the issuance of theCommon Shares upon the redemption, exercise, exchange or any other transaction with respect to any such phantom units, options or such other securities, pursuant to any equity compensation plan or employee stock ownership plan of the Company and itsaffiliates, whether now in effect or hereafter implemented, including, without limitation, the RAIT Financial Trust 2008 Incentive Award Plan and the Taberna Realty Finance Trust 2005 Equity Incentive Plan; or 

 

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(2) Common Shares issuable upon conversion or repurchase of securities or the exercise ofwarrants, options or other rights in effect or outstanding, and disclosed in filings by the Company available on EDGAR or otherwise disclosed in writing to the Agent, including, without limitation, the Company’s 6.875% Convertible Senior Notesdue 2027 (the “Convertible Senior Notes”) and the Company’s 10% Senior Secured Note due 2014 (the “Senior Secured Notes”); 

(iii) the exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing any security referredto in clause (ii) above; 

(iv) sales solely to employees or security holders of the Company or its Subsidiaries (asdefined below), or to a trustee or other person acquiring such securities for the accounts of such persons; 

(v) issuances ofthe Company’s securities pursuant to the Standby Equity Distribution Agreement dated as of January 13, 2010 by and between the YA Global Master SPV Ltd. And RAIT (“SEDA”); provided, however, that the Companyshall suspend any effective Placement Notice on or before the Trading Day preceding the delivery by the Company of an advance notice under the SEDA and maintain such suspension until at least the Trading Day next following the related advancesettlement date under the SEDA where Common Shares are issued; 

(vi) issuances of Common Shares pursuant to theCompany’s Dividend Reinvestment and Share Purchase Plan (the “DRSPP”) provided, however, that the Company shall suspend any effective Placement Notice on or before the Trading Day preceding the Trading Day theCompany notifies investors on the Company’s website that the Company is considering waiver requests relating to optional cash payments in excess of $10,000 (a “Waiver Request Notice”) and maintain such suspension until at leastthe Trading Day next following the final date when Common Shares are issued pursuant to such waiver requests after the related pricing period (including any extension thereof) ; or 

(vii) exchanges and other transactions to acquire the Convertible Senior Notes or the Senior Secured Notes; or . 

Any other “at-the-market” or similar continuous equity transaction (an “ATM Transaction”) offer to sell, sell, contract tosell, grant any option to sell or otherwise dispose of any Common Shares (other than the Placement Shares offered pursuant to this Agreement) shall also be subject to Section 7(i). 

6. Representations and Warranties of the Company. The Company and the Partnership jointly and severally represent and warrant to,and agree with Agent that as of the date of this Agreement and as of each Applicable Time (as defined below): 

(a)Registration Statement and Prospectus. The Company and the transactions contemplated by this Agreement meet the requirements for and comply with the conditions for the use of Form S-3 under the Securities Act. The Registration Statement hasbeen filed with the Commission and has been declared effective under the Securities Act. The 

 

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Prospectus Supplement will name Agent as underwriter, acting as agent, that the Company will engage in the section entitled “Plan of Distribution.” The Company has not received, and hasno notice of, any order of the Commission preventing or suspending the use of the Registration Statement, or threatening or instituting proceedings for that purpose. The Registration Statement and the offer and sale of Placement Shares ascontemplated hereby meet the requirements of Rule 415 under the Act and comply in all material respects with said Rule. Any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement orthe Prospectus or to be filed as exhibits to the Registration Statement have been so described or filed. Copies of the Registration Statement, the Prospectus, and any such amendments or supplements and all documents incorporated by reference thereinthat were filed with the Commission on or prior to the date of this Agreement have been delivered, or are available through EDGAR, to Agent and its counsel. The Company has not distributed and, prior to the later to occur of each Settlement Date andcompletion of the distribution of the Placement Shares, will not distribute any offering material in connection with the offering or sale of the Placement Shares other than the Registration Statement and the Prospectus and any Issuer Free WritingProspectus (as defined below) to which Agent has consented. The Common Shares are currently quoted on the Exchange under the trading symbol “***RAS****.*” Except as disclosed in the Registration Statement, the Company has not,in the 12 months preceding the date hereof, received notice from the Exchange to the effect that the Company is not in compliance with the listing or maintenance requirements. The Company has no reason to believe that it will not in the foreseeablefuture continue to be in compliance with all such listing and maintenance requirements. 

(b) No Misstatement orOmission. The Registration Statement, when it became or becomes effective, and the Prospectus, and any amendment or supplement thereto, on the date of such Prospectus or amendment or supplement, conformed and will conform in all materialrespects with the requirements of the Securities Act. At each Settlement Date, the Registration Statement and the Prospectus, as of such date, will conform in all material respects with the requirements of the Securities Act. The RegistrationStatement, when it became or becomes effective, did not, and will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. TheProspectus and any amendment and supplement thereto, on the date thereof and at each Applicable Time (as defined below), did not or will not include an untrue statement of a material fact or omit to state a material fact necessary to make thestatements therein, in light of the circumstances under which they were made, not misleading. The documents incorporated by reference in the Prospectus or any Prospectus Supplement did not, and any further documents filed and incorporated byreference therein will not, when filed with the Commission, contain an untrue statement of a material fact or omit to state a material fact required to be stated in such document or necessary to make the statements in such document, in light of thecircumstances under which they were made, not misleading. The foregoing shall not apply to statements in, or omissions from, any such document made in reliance upon, and in conformity with, information furnished to the Company by Agent specificallyfor use in the preparation thereof. 

(c) Conformity with Securities Act and Exchange Act. The Registration Statement,the Prospectus, any Issuer Free Writing Prospectus or any amendment or supplement thereto, and the documents incorporated by reference in the Registration Statement, the Prospectus or any amendment or supplement thereto, when such documents were orare filed 

 

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with the Commission under the Securities Act or the Exchange Act or became or become effective under the Securities Act, as the case may be, conformed or will conform in all material respectswith the requirements of the Securities Act and the Exchange Act, as applicable. 

(d) Financial Information. Theconsolidated financial statements of the Company included or incorporated by reference in the Registration Statement, the Prospectus and the Issuer Free Writing Prospectuses, if any, together with the related notes and schedules, present fairly, inall material respects, the consolidated financial position of the Company and the Subsidiaries as of the dates indicated and the consolidated results of operations, cash flows and changes in stockholders’ equity of the Company for the periodsspecified and have been prepared in compliance with the requirements of the Securities Act and Exchange Act and in conformity with GAAP (as defined below) applied on a consistent basis during the periods involved; the other financial and statisticaldata with respect to the Company and the Subsidiaries contained or incorporated by reference in the Registration Statement, the Prospectus and the Issuer Free Writing Prospectuses, if any, are accurately and fairly presented and prepared on a basisconsistent with the financial statements and books and records of the Company; there are no financial statements (historical or pro forma) that are required to be included or incorporated by reference in the Registration Statement, or the Prospectusthat are not included or incorporated by reference as required; the Company and the Subsidiaries do not have any material liabilities or obligations, direct or contingent (including any off-balance sheet obligations), not described in theRegistration Statement (excluding the exhibits thereto), and the Prospectus; and all disclosures contained or incorporated by reference in the Registration Statement, the Prospectus and the Issuer Free Writing Prospectuses, if any, regarding“non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply with Regulation G of the Exchange Act and Item 10 of Regulation S-K under the Securities Act, to the extent applicable;

(e) Conformity with EDGAR Filing. The Prospectus delivered to Agent for use in connection with the sale of thePlacement Shares pursuant to this Agreement will be identical to the versions of the Prospectus created to be transmitted to the Commission for filing via EDGAR, except to the extent permitted by Regulation S-T. 

(f) Organization. The Company and each of its Subsidiaries (other than the Partnership) are, and will be, duly formed orincorporated, as the case may be, and in good standing under the laws of their respective jurisdictions of organization, except where the failure to be in good standing would not, individually or in the aggregate, have a Material Adverse Effect (asdefined below) or would reasonably be expected to have a Material Adverse Effect. The Company and each of its Subsidiaries are, and will be, duly licensed or qualified as a foreign corporation for transaction of business and in good standing underthe laws of each other jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such license or qualification, and have all corporate power and authority necessary to own or holdtheir respective properties and to conduct their respective businesses as described in the Registration Statement and the Prospectus, except where the failure to be so qualified or in good standing or have such power or authority would not,individually or in the aggregate, have a material adverse effect or would reasonably be expected to have a material adverse effect on or affecting the assets, business, operations, earnings, properties, condition (financial or otherwise), prospects,stockholders’ equity or results of 

 

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operations of the Company and the Subsidiaries (as defined below) taken as a whole, or prevent or materially interfere with consummation of the transactions contemplated hereby (a“Material Adverse Effect”). 

(g) Subsidiaries. The subsidiaries set forth on Schedule 4(collectively, the “Subsidiaries”), are the Company’s only significant subsidiaries (as such term is defined in Rule 1-02 of Regulation S-X promulgated by the Commission). Except as set forth in the Registration Statement andin the Prospectus or on Schedule 4, the Company owns, directly or indirectly, all of the equity interests of the Subsidiaries free and clear of any lien, charge, security interest, encumbrance, right of first refusal or other restriction, andall the equity interests of the Subsidiaries are validly issued and are fully paid, nonassessable and free of preemptive and similar rights. 

(h) Due Formation. The Partnership has been duly formed and is validly existing as a limited partnership under the laws ofDelaware, with all requisite partnership power and authority to own, lease and operate its properties, to conduct its business as now conducted and to authorize, execute and deliver this Agreement and to consummate the transactions described in thisAgreement; the Partnership has been duly qualified or registered to do business as a foreign partnership in each jurisdiction in which it conducts its business as now conducted, and in which the failure, individually or in the aggregate, to be soqualified or registered could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. 

(i) No Violation or Default. Neither the Company nor any of its Subsidiaries is (i) in violation of its charter or by-laws orsimilar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in anyindenture, mortgage, deed of trust, loan agreement or other 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 is bound or to which any of the property or assets ofthe Company or any of its Subsidiaries are subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of each ofclauses (ii) and (iii) above, for any such violation or default that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. To the Company’s knowledge, except as set forth in theRegistration Statement and Prospectus, no other party under any material contract or other agreement to which it or any of its Subsidiaries is a party is in default in any respect thereunder where such default would have a Material Adverse Effect.

(j) No Material Adverse Change. Subsequent to the respective dates as of which information is given in theRegistration Statement, the Prospectus and the Free Writing Prospectuses, if any (including any document deemed incorporated by reference therein), there has not been (i) any Material Adverse Effect, or any development that the Companyreasonably expects may result in a Material Adverse Effect, in or affecting the business, properties, management, financial, condition (financial or otherwise), results of operations, or prospects of the Company and the Subsidiaries taken as awhole, (ii) any transaction which is material to the Company and the Subsidiaries taken as a whole, (iii) any obligation or liability, direct or contingent (including any off-balance sheet obligations), incurred by the Company or anySubsidiary, which is material to the Company and the Subsidiaries taken as a whole, (iv) any 

 

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material change in the capital stock or outstanding long-term indebtedness of the Company or any of its Subsidiaries or (v) any dividend or distribution of any kind declared, paid or made onthe capital stock of the Company or any Subsidiary, other than in each case above in the ordinary course of business or as otherwise disclosed in the Registration Statement or Prospectus or Free Writing Prospectuses, if any (including any documentdeemed incorporated by reference therein); 

(k) Capitalization. The issued and outstanding shares of capital stock ofthe Company have been validly issued, are fully paid and nonassessable and, other than as disclosed in the Registration Statement or the Prospectus, are not subject to any preemptive rights, rights of first refusal or similar rights. The Company hasan authorized, issued and outstanding capitalization as set forth in the Registration Statement and the Prospectus as of the dates referred to therein (other than the grant of additional options under the Company’s existing stock option plans,or changes in the number of outstanding Common Shares of the Company due to the issuance of shares upon the exercise or conversion of securities exercisable for, or convertible into, Common Shares outstanding on the date hereof or pursuant to anyPermitted Transactions) and such authorized capital stock conforms to the description thereof set forth in the Registration Statement and the Prospectus. The description of the securities of the Company in the Registration Statement and theProspectus is complete and accurate in all material respects. Except as disclosed in or contemplated by the Registration Statement or the Prospectus, as of the date referred to therein or pursuant to any Permitted Transactions, the Company does nothave outstanding any options to purchase, or any rights or warrants to subscribe for, or any securities or obligations convertible into, or exchangeable for, or any contracts or commitments to issue or sell, any shares of capital stock or othersecurities. 

(l) Authorization; Enforceability. Each of the Company and the Partnership has full legal right, power andauthority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by each of the Company and the Partnership and is a legal, valid and binding agreement of eachof the Company and the Partnership enforceable in accordance with its terms, except to the extent that enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally andby general equitable principles and except to the extent that the indemnification and contribution provisions hereof may be limited by federal or state securities laws and public policy consideration in respect thereof. 

(m) Limited Partnership Agreement. The Limited Partnership Agreement of the Partnership, including all amendments thereto, hasbeen duly and validly authorized, executed and delivered by or on behalf of the partners of the Partnership and constitutes a valid and binding agreement of the parties thereto, enforceable in accordance with its terms, except as may be limited bybankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditor’ rights generally or by general principles of equity. 

(n) Authorization of Placement Shares. The Placement Shares, when issued and delivered pursuant to the terms approved by the boardof trustees of the Company or a duly authorized committee thereof, or a duly authorized executive committee, against payment therefor as provided herein, will be duly and validly authorized and issued and fully paid and nonassessable, free and clearof any pledge, lien, encumbrance, security interest or other claim, 

 

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including any statutory or contractual preemptive rights, resale rights, rights of first refusal or other similar rights, and will be registered pursuant to Section 12 of the Exchange Act.The Placement Shares, when issued, will conform in all material respects to the description thereof set forth in or incorporated into the Prospectus. 

(o) No Consents Required. No consent, approval, authorization, order, registration or qualification of or with any court orarbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Company this Agreement, the issuance and sale by the Company of the Placement Shares, except for such consents, approvals,authorizations, orders and registrations or qualifications as may be required under applicable state securities laws or by the by-laws and rules of the Financial Industry Regulatory Authority (“FINRA”) or the Exchange in connectionwith the sale of the Placement Shares by the Agent. 

(p) No Preferential Rights. Except as set forth in theRegistration Statement and the Prospectus and except as contemplated by any Permitted Transactions, (i) no person, as such term is defined in Rule 1-02 of Regulation S-X promulgated under the Securities Act (each, a “Person”),has the right, contractual or otherwise, to cause the Company to issue or sell to such Person any Common Shares or shares of any other capital stock or other securities of the Company, (ii) no Person has any preemptive rights, resale rights,rights of first refusal, or any other rights (whether pursuant to a “poison pill” provision or otherwise) to purchase any Common Shares or shares of any other capital stock or other securities of the Company, (iii) no Person has theright to act as an underwriter or as a financial advisor to the Company in connection with the offer and sale of the Common Shares, and (iv) no Person has the right, contractual or otherwise, to require the Company to register under theSecurities Act any Common Shares or shares of any other capital stock or other securities of the Company, or to include any such shares or other securities in the Registration Statement or the offering contemplated thereby, whether as a result ofthe filing or effectiveness of the Registration Statement or the sale of the Placement Shares as contemplated thereby or otherwise. 

(q) Independent Public Accountant. Grant Thornton LLP (the “Accountant”), whose report on the consolidatedfinancial statements of the Company is filed with the Commission as part of the Registration Statement and the Prospectus, are and, during the periods covered by their report, were independent public accountants within the meaning of the SecuritiesAct and the Public Company Accounting Oversight Board (United States). To the Company’s knowledge, after due inquiry, the Accountant is not in violation of the auditor independence requirements of the Sarbanes-Oxley Act of 2002 (the“Sarbanes-Oxley Act”) with respect to the Company. 

(r) Enforceability of Agreements. All agreementsbetween the Company and third parties expressly referenced in the Prospectus are legal, valid and binding obligations of the Company enforceable in accordance with their respective terms, except to the extent that (i) enforceability may belimited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general equitable principles and (ii) the indemnification provisions of certain agreements may be limited be federalor state securities laws or public policy considerations in respect thereof. 

 

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(s) No Litigation. Except as set forth in the Registration Statement or theProspectus, there are no legal, governmental or regulatory actions, suits or proceedings pending, nor, to the Company’s knowledge, any legal, governmental or regulatory investigations, to which the Company or a Subsidiary is a party or to whichany property of the Company or any of its Subsidiaries is the subject that, individually or in the aggregate, if determined adversely to the Company or any of its Subsidiaries, would reasonably be expected to have a Material Adverse Effect ormaterially and adversely affect the ability of the Company to perform its obligations under this Agreement; to the Company’s knowledge, no such actions, suits or proceedings are threatened or contemplated by any governmental or regulatoryauthority or threatened by others; and (i) there are no current or pending legal, governmental or regulatory investigations, actions, suits or proceedings that are required under the Act to be described in the Prospectus that are not sodescribed; and (ii) there are no contracts or other documents that are required under the Act to be filed as exhibits to the Registration Statement that are not so filed. 

(t) Licenses and Permits. Except as set forth in the Registration Statement or the Prospectus, the Company and each of itsSubsidiaries possess or have obtained, all licenses, certificates, consents, orders, approvals, permits and other authorizations issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreigngovernmental or regulatory authorities that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses as described in the Registration Statement and the Prospectus (the“Permits”), except where the failure to possess, obtain or make the same would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Registration Statement or theProspectus, neither the Company nor any of its Subsidiaries have received written notice of any proceeding relating to revocation or modification of any such Permit or has any reason to believe that such Permit will not be renewed in the ordinarycourse, except where the failure to obtain any such renewal would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. 

(u) No Material Defaults. Neither the Company nor any of the Subsidiaries has defaulted on any installment on indebtedness forborrowed money or on any rental on one or more long-term leases, which defaults, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. The Company has not filed a report pursuant to Section 13(a) or15(d) of the Exchange Act since the filing of its last Annual Report on Form 10-K, indicating that it (i) has failed to pay any dividend or sinking fund installment on preferred stock or (ii) has defaulted on any installment onindebtedness for borrowed money or on any rental on one or more long-term leases, which defaults, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. 

(v) Certain Market Activities. Neither the Company, nor any of the Subsidiaries, nor any of their respective directors, officersor controlling persons has taken, directly or indirectly, any action designed, or that has constituted or might reasonably be expected to cause or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the price of anysecurity of the Company to facilitate the sale or resale of the Placement Shares. 

 

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(w) Broker/Dealer Relationships. Except for RAIT Securities, LLC, neither the Companynor any of the Subsidiaries or any related entity (i) is required to register as a “broker” or “dealer” in accordance with the provisions of the Exchange Act or (ii) directly or indirectly through one or moreintermediaries, controls or is a “person associated with a member” or “associated person of a member” (within the meaning set forth in the FINRA Manual). 

(x) No Reliance. The Company has not relied upon the Agent or legal counsel for the Agent for any legal, tax or accounting advicein connection with the offering and sale of the Placement Shares. 

(y) Taxes. The Company and each of its Subsidiarieshave filed all federal, state, local and foreign tax returns which have been required to be filed and paid all taxes shown thereon through the date hereof, to the extent that such taxes have become due and are not being contested in good faith.Except as otherwise disclosed in or contemplated by the Registration Statement or the Prospectus, no tax deficiency has been determined adversely to the Company or any of its Subsidiaries which has had, or would reasonably be expected to have,individually or in the aggregate, a Material Adverse Effect. Except as otherwise disclosed in the Registration Statement and Prospectus, the Company has no knowledge of any federal, state or other governmental tax deficiency, penalty or assessmentwhich has been or might be asserted or threatened against it which could have a Material Adverse Effect. 

(z) Title to Realand Personal Property. Except as set forth in the Registration Statement or the Prospectus, the Company and its Subsidiaries have good and valid title in fee simple to all items of real property and good and valid title to all personal propertydescribed in the Registration Statement or Prospectus as being owned by them that are material to the businesses of the Company or such Subsidiary, in each case free and clear of all liens, encumbrances and claims, except those that (i) do notmaterially interfere with the use made and proposed to be made of such property by the Company and any of its Subsidiaries or (ii) would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. Any realproperty described in the Registration Statement or Prospectus as being leased by the Company and any of its Subsidiaries is held by them under valid, existing and enforceable leases, except those that (A) do not materially interfere with theuse made or proposed to be made of such property by the Company or any of its Subsidiaries or (B) would not be reasonably expected, individually or in the aggregate, to have a Material Adverse Effect. 

(aa) Intellectual Property. Except as set forth in the Registration Statement or the Prospectus, the Company and its Subsidiariesown or possess adequate enforceable rights to use all patents, patent applications, trademarks (both registered and unregistered), service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses and know-how(including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) (collectively, the “Intellectual Property”), necessary for the conduct of their respective businessesas conducted as of the date hereof, except to the extent that the failure to own or possess adequate rights to use such Intellectual Property would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

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(bb) Environmental Laws. Except as set forth in the Registration Statement or theProspectus, the Company and its Subsidiaries (i) are in compliance with any and all applicable federal, state, local and foreign laws, rules, regulations, decisions and orders relating to the protection of human health and safety, theenvironment or hazardous or toxic substances or wastes, pollutants or contaminants (collectively, “Environmental Laws”); (ii) have received and are in compliance with all permits, licenses or other approvals required of themunder applicable Environmental Laws to conduct their respective businesses as described in the Registration Statement and the Prospectus; and (iii) have not received notice of any actual or potential liability for the investigation orremediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, except, in the case of any of clauses (i), (ii) or (iii) above, for any such failure to comply or failure to receive requiredpermits, licenses, other approvals or liability as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. 

(cc) Disclosure Controls. The Company and each of its Subsidiaries maintain systems of internal accounting controls sufficient toprovide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements inconformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recordedaccountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company’s internal control over financial reporting is effective and the Company is notaware of any material weaknesses in its internal control over financial reporting (other than as set forth in the Prospectus). Since the date of the latest audited financial statements of the Company included in the Prospectus, there has been nochange in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting (other than as set forth in theProspectus). The Company has established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15 and 15d-15) for the Company and designed such disclosure controls and procedures to ensure that information required to be disclosedby the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company’s management, including its principal executive and principal financial officers, as appropriate to allow timelydecisions regarding required disclosure. The Company’s certifying officers have evaluated the effectiveness of the Company’s controls and procedures as of a date within 90 days prior to the filing date of the Form 10-K for the fiscal yearmost recently ended (such date, the “Evaluation Date”). The Company presented in its Form 10-K for the fiscal year most recently ended the conclusions of the certifying officers about the effectiveness of the disclosure controls andprocedures based on their evaluations as of the Evaluation Date and the disclosure controls and procedures are effective. Since the Evaluation Date, there have been no significant changes in the Company’s internal controls (as such term isdefined in Item 307(b) of Regulation S-K under the Act) or, to the Company’s knowledge, in other factors that could significantly affect the Company’s internal controls. 

(dd) Sarbanes-Oxley. There is and has been no failure on the part of the Company or any of the Company’s trustees orofficers, in their capacities as such, to comply with any applicable provisions of the Sarbanes-Oxley Act and the rules and regulations 

 

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promulgated thereunder. Each of the principal executive officer and the principal financial officer of the Company (or each former principal executive officer of the Company and each formerprincipal financial officer of the Company as applicable) has made all certifications required by Sections 302 and 906 of the Sarbanes-Oxley Act with respect to all reports, schedules, forms, statements and other documents required to be filed by itor furnished by it to the Commission. For purposes of the preceding sentence, “principal executive officer” and “principal financial officer” shall have the meanings given to such terms in the Sarbanes-Oxley Act. 

(ee) Finder’s Fees. Neither the Company nor any of the Subsidiaries has incurred any liability for any finder’s fees,brokerage commissions or similar payments in connection with the transactions herein contemplated, except as may otherwise exist with respect to Agent pursuant to this Agreement. 

(ff) Labor Disputes. No labor disturbance by or dispute with employees of the Company or any of its Subsidiaries exists or, to theknowledge of the Company, is threatened which would reasonably be expected to result in a Material Adverse Effect 

(gg)Investment Company Act. Neither the Company nor any of the Subsidiaries is or, after giving effect to the offering and sale of the Placement Shares, will be an “investment company” or an entity “controlled” by an“investment company,” as such terms are defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”). 

(hh) Operations. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance withapplicable financial record keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions to which the Company or its Subsidiaries are subject, therules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”), except as would not reasonably beexpected to result in a Material Adverse Effect; and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its Subsidiaries with respect to the MoneyLaundering Laws is pending or, to the knowledge of the Company, threatened. 

(ii) Off-Balance Sheet Arrangements. Thereare no transactions, arrangements and other relationships between and/or among the Company, and/or, to the knowledge of the Company, any of its affiliates and any unconsolidated entity, including, but not limited to, any structural finance, specialpurpose or limited purpose entity (each, an “Off Balance Sheet Transaction”) that could reasonably be expected to affect materially the Company’s liquidity or the availability of or requirements for its capital resources,including those Off Balance Sheet Transactions described in the Commission’s Statement about Management’s Discussion and Analysis of Financial Conditions and Results of Operations (Release Nos. 33-8056; 34-45321; FR-61), required to bedescribed in the Registration Statement or the Prospectus which have not been described as required. 

 

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(jj) Underwriter Agreements. Except for the SEDA and the DRSPP, the Company is not aparty to any agreement with an agent or underwriter for any other ATM Transaction. 

(kk) ERISA. To the knowledge of theCompany, each material employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), that is maintained, administered or contributed to by the Company orany of its affiliates for employees or former employees of the Company and any of its Subsidiaries has been maintained in material compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, includingbut not limited to ERISA and the Internal Revenue Code of 1986, as amended (the “Code”); no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred which would result ina material liability to the Company with respect to any such plan excluding transactions effected pursuant to a statutory or administrative exemption; and for each such plan that is subject to the funding rules of Section 412 of the Code orSection 302 of ERISA, no “accumulated funding deficiency” as defined in Section 412 of the Code has been incurred, whether or not waived, and the fair market value of the assets of each such plan (excluding for these purposesaccrued but unpaid contributions) exceeds the present value of all benefits accrued under such plan determined using reasonable actuarial assumptions. 

(ll) Forward Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act andSection 21E of the Exchange Act) (a “Forward Looking Statement”) contained in the Registration Statement and the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.The Forward Looking Statements incorporated by reference in the Registration Statement and the Prospectus from the Company’s Annual Report on Form 10-K for the fiscal year most recently ended (i) are within the coverage of the safe harborfor forward looking statements set forth in Section 27A of the Securities Act, Rule 175(b) under the Securities Act or Rule 3b-6 under the Exchange Act, as applicable, (ii) were made by the Company with a reasonable basis and in good faithand reflect the Company’s good faith commercially reasonable best estimate of the matters described therein, and (iii) have been prepared in accordance with Item 10 of Regulation S-K under the Act. 

(mm) Agent Purchases. The Company acknowledges and agrees that Agent has informed the Company that the Agent may, to the extentpermitted under the Securities Act, the Securities Act Regulations, the Exchange Act and the Exchange Act Regulations, purchase and sell Common Shares for its own account while this Agreement is in effect, provided, that (i) no suchpurchase or sales shall take place while a Placement Notice is in effect (except to the extent each Agent may engage in sales of Placement Shares purchased or deemed purchased from the Company as a “riskless principal” or in a similarcapacity) and (ii) the Company shall not be deemed to have authorized or consented to any such purchases or sales by the Agent. In addition, the Company acknowledges and agrees that the Agent may under certain circumstances collect ordinarybrokerage commissions from the buyer of Placement Shares. 

(nn) Margin Rules. Neither the issuance, sale and deliveryof the Placement Shares nor the application of the proceeds thereof by the Company as described in the Registration Statement and the Prospectus will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System or any otherregulation of such Board of Governors. 

 

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(oo) Insurance. The Company and each of its Subsidiaries carry, or are covered by,insurance in such amounts and covering such risks as the Company and each of its Subsidiaries reasonably believe are adequate for the conduct of their properties and as is customary for companies engaged in similar businesses in similar industries.

(pp) No Improper Practices. (i) Neither the Company nor, to the Company’s knowledge, the Subsidiaries, norto the Company’s knowledge, any of their respective executive officers has, in the past five years, made any unlawful contributions to any candidate for any political office (or failed fully to disclose any contribution in violation of law) ormade any contribution or other payment to any official of, or candidate for, any federal, state, municipal, or foreign office or other person charged with similar public or quasi-public duty in violation of any law or of the character required to bedisclosed in the Prospectus; (ii) no relationship, direct or indirect, exists between or among the Company or, to the Company’s knowledge, any Subsidiary or any affiliate of any of them, on the one hand, and the trustees, directors,officers and stockholders of the Company or, to the Company’s knowledge, any Subsidiary, on the other hand, that is required by the Securities Act to be described in the Registration Statement and the Prospectus that is not so described;(iii) no relationship, direct or indirect, exists between or among the Company or any Subsidiary or any affiliate of them, on the one hand, and the trustees, directors, officers, stockholders or directors of the Company or, to theCompany’s knowledge, any Subsidiary, on the other hand, that is required by the rules of FINRA to be described in the Registration Statement and the Prospectus that is not so described; (iv) except as described in the Prospectus, there areno material outstanding loans or advances or material guarantees of indebtedness by the Company or, to the Company’s knowledge, any Subsidiary to or for the benefit of any of their respective officers, trustees, or directors or any of themembers of the families of any of them; and (v) the Company has not offered, or caused any placement agent to offer, Common Shares to any person with the intent to influence unlawfully (A) a customer or supplier of the Company or anySubsidiary to alter the customer’s or supplier’s level or type of business with the Company or any Subsidiary or (B) a trade journalist or publication to write or publish favorable information about the Company or any Subsidiary orany of their respective products or services, and, (vi) neither the Company nor any Subsidiary nor, to the Company’s knowledge, any employee or agent of the Company or any Subsidiary has made any payment of funds of the Company or anySubsidiary or received or retained any funds in violation of any law, rule or regulation (including, without limitation, the Foreign Corrupt Practices Act of 1977, which payment, receipt or retention of funds is of a character required to bedisclosed in the Registration Statement or the Prospectus. 

(qq) Status Under the Securities Act. The Company was notand is not an ineligible issuer as defined in Rule 405 under the Securities Act at the times specified in Rules 164 and 433 under the Act in connection with the offering of the Placement Shares. 

(rr) REIT Status. The Company is organized and operates in conformity with the requirements for qualification as a real estateinvestment trust (“REIT”) under the Code and the Company’s current and proposed method of operation, as described in the Registration Statement and the Prospectus, will enable such entity to meet the requirements for taxationas a real estate investment trust under the Code. 

 

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(ss) No Misstatement or Omission in an Issuer Free Writing Prospectus. Each IssuerFree Writing Prospectus, as of its issue date and as of each Applicable Time (as defined in Section 24 below), did not, does not and will not include any information that conflicted, conflicts or will conflict with the informationcontained in the Registration Statement or the Prospectus, including any incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any IssuerFree Writing Prospectus based upon and in conformity with written information furnished to the Company by the Agent specifically for use therein. 

(tt) Disclosure Materials. Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or anysuch amendment or supplement was issued, as of the date hereof, and at each Representation Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in orderto make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon andin conformity with written information relating to the Agent furnished to the Company in writing (including, without limitation, electronic communications) by the Agent expressly for inclusion in any of the aforementioned documents. 

(uu) No Conflicts. Neither the execution of this Agreement, nor the issuance, offering or sale of the Placement Shares, nor theconsummation of any of the transactions contemplated herein and therein, nor the compliance by the Company with the terms and provisions hereof and thereof will conflict with, or will result in a breach of, any of the terms and provisions of, or hasconstituted or will constitute a default under, or has resulted in or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to the terms of any contract or other agreement towhich the Company may be bound or to which any of the property or assets of the Company is subject, except (i) such conflicts, breaches or defaults as may have been waived and (ii) such conflicts, breaches and defaults that would not havea Material Adverse Effect; nor will such action result (x) in any violation of the provisions of the organizational or governing documents of the Company, or (y) in any material violation of the provisions of any statute or any order, ruleor regulation applicable to the Company or of any court or of any federal, state or other regulatory authority or other government body having jurisdiction over the Company. 

(vv) (i) The Company represents that, neither the Company nor any of its Subsidiaries (collectively, the “Entity”) orany trustee, director, officer, employee, agent, affiliate or representative of the Entity, is a government, individual, or entity (in this paragraph (tt), “Person”) that is, or is owned or controlled by a Person that is:

(A) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’sOffice of Foreign Assets Control (“OFAC”), the United Nations Security Council (“UNSC”), the European Union (“EU”), Her Majesty’s Treasury (“HMT”), or other relevant sanctionsauthority (collectively, “Sanctions”), nor 

 

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(B) located, organized or resident in a country or territory that isthe subject of Sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran, North Korea, Sudan and Syria). 

(ii) The Entity represents and covenants that it will not, directly or indirectly, use the proceeds of the offering,or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person: 

(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, atthe time of such funding or facilitation, is the subject of Sanctions; or 

(B) in any other manner thatwill result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise). 

(iii) The Entity represents and covenants that, except as detailed in the Prospectus, for the past 5 years, it hasnot knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.

(ww) Stock Transfer Taxes. On each Settlement Date, all stock transfer or other taxes (other than income taxes) whichare required to be paid in connection with the sale and transfer of the Placement Shares to be sold hereunder will be, or will have been, fully paid or provided for by the Company and all laws imposing such taxes will be or will have been fullycomplied with. 

Any certificate signed by an officer of the Company and delivered to the Agent or to counsel for the Agentpursuant to or in connection with this Agreement shall be deemed to be a representation and warranty by the Company, as applicable, to the Agent as to the matters set forth therein. 

7. Covenants of the Company. The Company covenants and agrees with Agent that: 

(a) Registration Statement Amendments. After the date of this Agreement and during any period in which a Prospectus relating toany Placement Shares is required to be delivered by Agent under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), (i) the Company will notify the Agentpromptly of the time when any subsequent amendment to the Registration Statement, other than documents incorporated by reference, has been filed with the Commission and/or has become effective or any subsequent supplement to the Prospectus has beenfiled and of any request by the Commission for any amendment or supplement to the Registration Statement or Prospectus or for additional information, (ii) the Company will prepare and file with the Commission, promptly upon the Agent’srequest, any amendments or supplements to the 

 

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Registration Statement or Prospectus that, in such Agent’s reasonable opinion, may be necessary or advisable in connection with the distribution of the Placement Shares by the Agent(provided, however, that the failure of the Agent to make such request shall not relieve the Company of any obligation or liability hereunder, or affect the Agent’s right to rely on the representations and warranties made by theCompany in this Agreement and provided, further, that the only remedy the Agent shall have with respect to the failure to make such filing shall be to cease making sales under this Agreement until such amendment or supplement isfiled); (iii) the Company will not file any amendment or supplement to the Registration Statement or Prospectus relating to the Placement Shares or a security convertible into the Placement Shares unless a copy thereof has been submitted toAgent within a reasonable period of time before the filing and the Agent has not objected thereto (provided, however, that the failure of the Agent to make such objection shall not relieve the Company of any obligation or liabilityhereunder, or affect the Agent’s right to rely on the representations and warranties made by the Company in this Agreement and provided, further, that the only remedy Agent shall have with respect to the failure to by the Companyto obtain such consent shall be to cease making sales under this Agreement) and the Company will furnish to the Agent at the time of filing thereof a copy of any document that upon filing is deemed to be incorporated by reference into theRegistration Statement or Prospectus, except for those documents available via EDGAR; and (iv) the Company will cause each amendment or supplement to the Prospectus to be filed with the Commission as required pursuant to the applicableparagraph of Rule 424(b) of the Securities Act or, in the case of any document to be incorporated therein by reference, to be filed with the Commission as required pursuant to the Exchange Act, within the time period prescribed (the determination tofile or not file any amendment or supplement with the Commission under this Section 7(a), based on the Company’s reasonable opinion or reasonable objections, shall be made exclusively by the Company). 

(b) Notice of Commission Stop Orders. The Company will advise the Agent, promptly after it receives notice or obtains knowledgethereof, of the issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the suspension of the qualification of the Placement Shares for offering or sale in any jurisdiction,or of the initiation or threatening of any proceeding for any such purpose; and it will promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such a stop order should be issued. TheCompany will advise the Agent promptly after it receives any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or any Issuer Free Writing Prospectus or for additionalinformation related to the offering of the Placement Shares or for additional information related to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus. 

(c) Delivery of Prospectus; Subsequent Changes. During any period in which a Prospectus relating to the Placement Shares isrequired to be delivered by the Agent under the Securities Act with respect to the offer and sale of the Placement Shares, (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), theCompany will comply with all requirements imposed upon it by the Securities Act, as from time to time in force, and to file on or before their respective due dates all reports and any definitive proxy or information statements required to be filedby the Company with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision of or 

 

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under the Exchange Act. If the Company has omitted any information from the Registration Statement pursuant to Rule 430A under the Act, it will use its commercially reasonable efforts to complywith the provisions of and make all requisite filings with the Commission pursuant to said Rule 430A and to notify the Agent promptly of all such filings. If during such period any event occurs as a result of which the Prospectus as then amended orsupplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if during such period it is necessary toamend or supplement the Registration Statement or Prospectus to comply with the Securities Act, the Company will promptly notify Agent to suspend the offering of Placement Shares during such period and the Company will promptly amend or supplementthe Registration Statement or Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance. 

(d) Listing of Placement Shares. During any period in which the Prospectus relating to the Placement Shares is required to bedelivered by the Agent under the Securities Act with respect to the offer and sale of the Placement Shares, the Company will use its commercially reasonable efforts to cause the Placement Shares to be listed on the Exchange and to qualify thePlacement Shares for sale under the securities laws of such jurisdictions as Agent reasonably designates and to continue such qualifications in effect so long as required for the distribution of the Placement Shares; provided, however,that the Company shall not be required in connection therewith to qualify as a foreign corporation or dealer in securities or file a general consent to service of process in any jurisdiction. 

(e) Delivery of Registration Statement and Prospectus. The Company will furnish to the Agent and its counsel (at the expense ofthe Company) copies of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and all amendments and supplements to the Registration Statement or Prospectus that are filed with the Commission duringany period in which a Prospectus relating to the Placement Shares is required to be delivered under the Securities Act (including all documents filed with the Commission during such period that are deemed to be incorporated by reference therein), ineach case as soon as reasonably practicable and in such quantities as the Agent may from time to time reasonably request and, at Agent’s request, will also furnish copies of the Prospectus to each exchange or market on which sales of thePlacement Shares may be made; provided, however, that the Company shall not be required to furnish any document (other than the Prospectus) to the Agent to the extent such document is available on EDGAR. 

(f) Earnings Statement. The Company will make generally available to its security holders as soon as practicable, but in any eventnot later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement covering a 12-month period that satisfies the provisions of Section 11(a) and Rule 158 of the Securities Act. 

(g) Use of Proceeds. The Company will use the Net Proceeds as described in the Prospectus in the section entitled “Use ofProceeds.” 

(h) [Intentionally deleted] 

 

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(i) ATM Restriction. The Company will not, without the prior written consent ofAgent, directly or indirectly in any other ATM Transaction offer to sell, sell, contract to sell, grant any option to sell or otherwise dispose of any Common Shares (other than the Placement Shares offered pursuant to this Agreement) or securitiesconvertible into or exchangeable for Common Shares, warrants or any rights to purchase or acquire, Common Shares prior to the later of the termination of this Agreement and the Trading Day immediately following the final Settlement Date with respectto Placement Shares sold pursuant to any effective Placement Notice; provided, however, that such restriction will not apply to any Permitted Transaction. 

(j) Change of Circumstances. The Company will, at any time during the pendency of a Placement Notice advise the Agent promptlyafter it shall have received notice or obtained knowledge thereof, of any information or fact that would alter or affect in any material respect any opinion, certificate, letter or other document required to be provided to the Agent pursuant to thisAgreement. 

(k) Due Diligence Cooperation. The Company will cooperate with any reasonable due diligence reviewconducted by the Agent or its representatives in connection with the transactions contemplated hereby, including, without limitation, providing information and making available documents and senior corporate officers, during regular business hoursand at the Company’s principal offices, as the Agent may reasonably request. 

(l) Required Filings Relating toPlacement of Placement Shares. The Company agrees that on such dates as the Securities Act shall require, the Company will (i) file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b) under theSecurities Act (each and every filing under Rule 424(b), a “Filing Date”), which prospectus supplement will set forth, within the relevant period, the amount of Placement Shares sold through the Agent, the Net Proceeds to theCompany and the compensation payable by the Company to the Agent with respect to such Placement Shares, and (ii) deliver such number of copies of each such prospectus supplement to each exchange or market on which such sales were effected asmay be required by the rules or regulations of such exchange or market. 

(m) Representation Dates; Certificate. On thedate of this Agreement and each time the Company: 

(i) files the Prospectus relating to the Placement Shares or amends orsupplements (other than a prospectus supplement relating solely to an offering of securities other than the Placement Shares) the Registration Statement or the Prospectus relating to the Placement

 

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Shares by means of a post-effective amendment, sticker, or supplement but not by means of incorporation of documents by reference into the Registration Statement or the Prospectus relating to thePlacement Shares; 

(ii) files an annual report on Form 10-K under the Exchange Act (including any Form 10-K/A containingamended financial information or a material amendment to the previously filed Form 10-K); 

(iii) files its quarterly reports onForm 10-Q under the Exchange Act; or 

(iv) files a current report on Form 8-K containing amended financial information (otherthan information “furnished” pursuant to Items 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K relating to the reclassification of certain properties as discontinued operations in accordancewith Statement of Financial Accounting Standards No. 144) under the Exchange Act; 

(Each date of filing of one or more ofthe documents referred to in clauses (i) through (iv) shall be a “Representation Date.”) 

the Company shall furnishthe Agent (but in the case of clause (iv) above only if the Agent reasonably determines that the information contained in such Form 8-K is material) with a certificate, in the form attached hereto as Exhibit 7(m). The requirement to provide acertificate under this Section 7(m) shall be waived for any Representation Date occurring at a time at which no Placement Notice is pending, which waiver shall continue until the earlier to occur of the date the Company delivers a PlacementNotice hereunder (which for such calendar quarter shall be considered a Representation Date) and the next occurring Representation Date; provided, however, that such waiver shall not apply for any Representation Date on which theCompany files its annual report on Form 10-K. Notwithstanding the foregoing, if the Company subsequently decides to sell Placement Shares following a Representation Date when the Company relied on such waiver and did not provide the Agent with acertificate under this Section 7(m), then no later than seven (7) days after the Company delivers the Placement Notice or the Agent sells any Placement Shares, the Company shall provide the Agent with a certificate, in the form attachedhereto as Exhibit 7(m), dated the date of the Placement Notice. 

(n) Legal Opinion. (1) Within five(5) Trading Days of the date of this Agreement and at least one Trading Day prior to delivering the initial Placement Notice and (2) within five (5) Trading Days of each Representation Date with respect to which the Company isobligated to deliver a certificate in the form attached hereto as Exhibit 7(m) for which no waiver is applicable, the Company shall cause to be furnished to the Agent a written opinion of Ledgewood, P.C. (“Company Counsel”), orother counsel satisfactory to the Agent, in form and substance satisfactory to Agent and its counsel, substantially similar to the form attached hereto as Exhibit 7(m), modified, as necessary, to relate to the Registration Statement and theProspectus as then amended or supplemented (as to matters of Maryland law, Company Counsel may rely upon the opinion of DLA Piper LLP (US) or other counsel satisfactory to the Agent); provided, however, the Company shall be required tofurnish to Agent no more than one opinion hereunder per calendar quarter; provided, further, that in lieu of such opinions for subsequent periodic filings under the Exchange Act, counsel may furnish the Agent with a letter (a“Reliance 

 

23 

Letter”) to the effect that the Agent may rely on a prior opinion delivered under this Section 7(n) to the same extent as if it were dated the date of such letter (except thatstatements in such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented as of the date of the Reliance Letter). 

(o) Comfort Letter. (1) Within five (5) Trading Days of the date of this Agreement and at least one Trading Day prior todelivering the initial Placement Notice and (2) within five (5) Trading Days of each Representation Date with respect to which the Company is obligated to deliver a certificate in the form attached hereto as Exhibit 7(m) for which nowaiver is applicable, the Company shall cause its independent accountants to furnish the Agent letters (the “Comfort Letters”), dated the date the Comfort Letter is delivered, which shall meet the requirements set forth in thisSection 7(o); provided, that if requested by the Agent, the Company shall cause a Comfort Letter to be furnished to the Agent within ten (10) Trading Days of the date of occurrence of any material transaction or event, including therestatement of the Company’s financial statements. The Comfort Letter from the Company’s independent accountants shall be in a form and substance satisfactory to the Agent, (i) confirming that they are an independent public accountingfirm within the meaning of the Securities Act and the PCAOB, (ii) stating, as of such date, the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’“comfort letters” to underwriters in connection with registered public offerings (the first such letter, the “Initial Comfort Letter”) and (iii) updating the Initial Comfort Letter with any information that would havebeen included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of such letter. 

(p) Market Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result in, orthat constitutes or might reasonably be expected to constitute, a violation of Regulation M in connection with the sale or resale of Common Shares or (ii) pay anyone any compensation for soliciting purchases of the Placement Shares other thanthe Agent. 

(q) REIT Treatment. The Company currently intends to continue to elect to qualify as a REIT under the Codeand will use all reasonable efforts to enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent tax years that include any portion of the term of this Agreement; unless theCompany’s board of trustees in good faith determines by resolution that it is in the best interests of the Company’s shareholders not to meet such requirements. 

(r) Investment Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it norany of its Subsidiaries will be or become, at any time prior to the termination of this Agreement, an “investment company,” as such term is defined in the Investment Company Act. 

(s) No Offer to Sell. Other than the Registration Statement, the Prospectus, any amendment or supplement thereto, or an IssuerFree Writing Prospectus approved in advance by the Company and the Agent in its capacity as agent hereunder, neither the Agent nor the Company (including its agents and representatives, other than Agent in their capacity as such)

 

24 

will make, use, prepare, authorize, approve or refer to any written communication (as defined in Rule 405 under the Act), required to be filed with the Commission, that constitutes an offer tosell or solicitation of an offer to buy Placement Shares hereunder. 

(t) Blue Sky and Other Qualifications**. TheCompany will use its commercially reasonable efforts, in cooperation with the Agent, to qualify the Placement Shares for offering and sale, or to obtain an exemption for the Placement Shares to be offered and sold, under the applicable securitieslaws of such states and other jurisdictions (domestic or foreign) as the Agent may designate and to maintain such qualifications and exemptions in effect for so long as required for the distribution of the Placement Shares (but in no event for lessthan one year from the date of this Agreement); provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in anyjurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Placement Shares have been so qualified orexempt, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so long as required for the distribution of the PlacementShares (but in no event for less than one year from the date of this Agreement). 

(u) Sarbanes-Oxley Act. The Companyand the Subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls in a manner designed to provide reasonable assurance regarding the reliability of financial reporting and thepreparation of financial statements for external purposes in accordance with generally accepted accounting principles and including those policies and procedures that (i) pertain to the maintenance of records that in reasonable detailaccurately and fairly reflect the transactions and dispositions of the assets of the Company, (ii) provide reasonable assurance that transactions are recorded as necessary to permit the preparation of the Company’s consolidated financialstatements in accordance with generally accepted accounting principals, (iii) that receipts and expenditures of the Company are being made only in accordance with management’s and the Company’s trustees’ authorization, and(iv) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on its financial statements. The Company and theSubsidiaries will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act, and the applicable regulations thereunder that are designed to ensure that informationrequired to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, including, withoutlimitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company’s management,including its principal executive officer and principal financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to theCompany or the Subsidiaries is made known to them by others within those entities. 

 

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8. Payment of Expenses. 

(a) The Company will pay all expenses incident to the performance of its obligations under this Agreement, including (i) thepreparation, filing, including any fees required by the Commission, and printing of the Registration Statement (including financial statements and exhibits) as originally filed and of each amendment and supplement thereto, in such number as theAgent shall deem necessary, (ii) the printing and delivery to the Agent of this Agreement and such other documents as may be required in connection with the offering, purchase, sale, issuance or delivery of the Placement Shares, (iii) thepreparation, issuance and delivery of the certificates, if any, for the Placement Shares to the Agent, including any stock or other transfer taxes and any capital duties, stamp duties or other duties or taxes payable upon the sale, issuance ordelivery of the Placement Shares to the Agent, (iv) the fees and disbursements of the counsel, accountants and other advisors to the Company, (v) the qualification or exemption of the Placement Shares under state securities laws inaccordance with the provisions of Section 7(t) hereof, including filing fees, (vi) the printing and delivery to the Agent of copies of any Permitted Issuer Free Writing Prospectus and the Prospectus and any amendments or supplementsthereto in such number as the Agent shall deem necessary, (vii) the fees and expenses of the transfer agent and registrar for the Common Shares, (viii) the filing fees incident to any review by FINRA of the terms of the sale of thePlacement Shares, and (ix) the fees and expenses incurred in connection with the listing of the Placement Shares on the Exchange. 

(b) In addition to the foregoing, unless the Company has delivered Placement Notices that have remained effective for at least 60 TradingDays, in the aggregate, in the twelve months from the date hereof, and with respect to which the Agent has not delivered timely Rejection Notices, for at least 8,000,000 Placement Shares hereunder, in the aggregate, by twelve months from the datehereof, the Company shall promptly reimburse the Agent for all reasonable out-of-pocket legal fees and expenses incurred by the Agent in connection with this Agreement up to $125,000. In the event that the Company has delivered such PlacementNotices as set forth in this Section 8(b), the Company shall not be responsible for any out-of-pocket legal fees and expenses incurred by the Agent in connection with this Agreement. 

9. Conditions to Agent’s Obligations. The obligations of the Agent hereunder with respect to a Placement will be subject tothe continuing accuracy and completeness of the representations and warranties made by the Company herein, to the due performance by the Company of its obligations hereunder, to the completion by the Agent of a due diligence review satisfactory toit in its reasonable judgment, and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional conditions: 

(a) Registration Statement Effective. The Registration Statement shall have become effective and shall be available for the(i) resale of all Placement Shares issued to the Agent and not yet sold by the Agent and (ii) sale of all Placement Shares contemplated to be issued by any Placement Notice. 

(b) No Material Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company ofany request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any post-effective amendments orsupplements to the Registration Statement or the Prospectus; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop 

 

26 

order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt by the Company of any notification with respect to thesuspension of the qualification or exemption from qualification of any of the Placement Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) the occurrence of any event that makes anymaterial statement made in the Registration Statement or the Prospectus or any material document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in theRegistration Statement, the Prospectus or documents so that, in the case of the Registration Statement, it will not contain any materially untrue statement of a material fact or omit to state any material fact required to be stated therein ornecessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any materially untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary tomake the statements therein, in the light of the circumstances under which they were made, not misleading. 

(c) NoMisstatement or Material Omission. Agent shall not have advised the Company that the Registration Statement or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that in the Agent’s reasonable opinionis material, or omits to state a fact that in the Agent’s opinion is material and is required to be stated therein or is necessary to make the statements therein not misleading. 

(d) Material Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with theCommission, there shall not have been any material adverse change, on a consolidated basis, in the authorized capital stock of the Company or any Material Adverse Effect, or any development that could reasonably be expected to cause a MaterialAdverse Effect, or a downgrading in or withdrawal of the rating assigned to any of the Company’s securities (other than asset backed securities) by any rating organization or a public announcement by any rating organization that it has undersurveillance or review its rating of any of the Company’s securities (other than asset backed securities), the effect of which, in the case of any such action by a rating organization described above, in the reasonable judgment of the Agent(without relieving the Company of any obligation or liability it may otherwise have), is so material as to make it impracticable or inadvisable to proceed with the offering of the Placement Shares on the terms and in the manner contemplated in theProspectus. 

(e) Legal Opinion. The Agent shall have received the opinions of Company Counsel required to be deliveredpursuant Section 7(n) on or before the date on which such delivery of such opinion is required pursuant to Section 7(n). 

(f) Comfort Letter. The Agent shall have received the Comfort Letter required to be delivered pursuant Section 7(o) on orbefore the date on which such delivery of such opinion is required pursuant to Section 7(o). 

(g) RepresentationCertificate. The Agent shall have received the certificate required to be delivered pursuant to Section 7(m) on or before the date on which delivery of such certificate is required pursuant to Section 7(m). 

 

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(h) No Suspension. Trading in the Common Shares shall not have been suspended on theExchange and the Common Shares shall not have been delisted from the Exchange. 

(i) Other Materials. On each date onwhich the Company is required to deliver a certificate pursuant to Section 7(m), the Company shall have furnished to the Agent such appropriate further information, certificates and documents as the Agent may reasonably request. All suchopinions, certificates, letters and other documents will be in compliance with the provisions hereof. The Company will furnish the Agent with such conformed copies of such opinions, certificates, letters and other documents as the Agent shallreasonably request. 

(j) Securities Act Filings Made. All filings with the Commission required by Rule 424 under theSecurities Act to have been filed prior to the issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing by Rule 424. 

(k) Approval for Listing. The Placement Shares shall either have been approved for listing quotation on the Exchange, subject onlyto notice of issuance, or the Company shall have filed an application for listing quotation of the Placement Shares on the Exchange at, or prior to, the issuance of any Placement Notice. 

(l) No Termination Event. There shall not have occurred any event that would permit the Agent to terminate this Agreement pursuantto Section 12(a). 

10. Indemnification and Contribution. 

(a) Company Indemnification. The Company agrees to indemnify and hold harmless the Agent, its partners, members, directors,officers, employees and agents and each person, if any, who controls the Agent within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows: 

(i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, arising out of or basedupon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessaryto make the statements therein not misleading, or arising out of any untrue statement or alleged untrue statement of a material fact included in any related Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto),or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; 

(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, to the extent of theaggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such allegeduntrue statement or omission; provided that (subject to Section 10(d) below) any such settlement is effected with the written consent of the Company, which consent shall not unreasonably be delayed or withheld; and 

 

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(iii) against any and all expense whatsoever, as incurred (including the fees anddisbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon anysuch untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above, 

provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising outof any untrue statement or omission or alleged untrue statement or omission made solely in reliance upon and in conformity with written information furnished to the Company by the Agent expressly for use in the Registration Statement (or anyamendment thereto), or in any related Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto). 

(b) Agent Indemnification. Agent agrees to indemnify and hold harmless the Company and its trustees and each officer of theCompany who signed the Registration Statement, and each person, if any, who (i) controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act or (ii) is controlled by or is undercommon control with the Company against any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 10(c), as incurred, but only with respect to untrue statements or omissions, or alleged untruestatements or omissions, made in the Registration Statement (or any amendments thereto) or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with information relating to the Agent and furnished to the Companyin writing by the Agent expressly for use therein. 

(c) Procedure. Any party that proposes to assert the right to beindemnified under this Section 10 will, promptly after receipt of notice of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party or parties under this Section 10, notify eachsuch indemnifying party of the commencement of such action, enclosing a copy of all papers served, but the omission so to notify such indemnifying party will not relieve the indemnifying party from (i) any liability that it might have to anyindemnified party otherwise than under this Section 10 and (ii) any liability that it may have to any indemnified party under the foregoing provision of this Section 10 unless, and only to the extent that, such omission results in theforfeiture of substantive rights or defenses by the indemnifying party. If any such action is brought against any indemnified party and it notifies the indemnifying party of its commencement, the indemnifying party will be entitled to participate inand, to the extent that it elects by delivering written notice to the indemnified party promptly after receiving notice of the commencement of the action from the indemnified party, jointly with any other indemnifying party similarly notified, toassume the defense of the action, with counsel reasonably satisfactory to the indemnified party, and after notice from the indemnifying party to the indemnified party of its election to assume the defense, the indemnifying party will not be liableto the indemnified party for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the indemnified party in connection with the defense. The indemnified party will have theright to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such indemnified party unless (1) the employment of counsel by the indemnified party has been authorized inwriting by the 

 

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indemnifying party, (2) the indemnified party has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other indemnified parties that aredifferent from or in addition to those available to the indemnifying party, (3) a conflict or potential conflict exists (based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying party (in whichcase the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified party) or (4) the indemnifying party has not in fact employed counsel to assume the defense of such action within a reasonabletime after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the indemnifying party or parties. It is understood that the indemnifyingparty or parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm admitted to practice in suchjurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the indemnifying party promptly as they are incurred. An indemnifying party will not, in any event, beliable for any settlement of any action or claim effected without its written consent. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment in anypending or threatened claim, action or proceeding relating to the matters contemplated by this Section 10 (whether or not any indemnified party is a party thereto), unless such settlement, compromise or consent (1) includes anunconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (2) does not include a statement as to or an admission of fault, culpability or a failure to act by or onbehalf of any indemnified party. 

(d) Settlement Without Consent if Failure to Reimburse**. If an indemnifiedparty shall have requested an indemnifying party to reimburse the indemnified party for reasonable fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated bySection 10(a)(ii) effected without its written consent if (1) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (2) such indemnifying party shall have received noticeof the terms of such settlement at least 30 days prior to such settlement being entered into and (3) such indemnifying party shall not have either (i) reimbursed such indemnified party in accordance with such request prior to the date ofsuch settlement or (i) provided a written objection to such fees and expenses to the indemnified party. 

(e)Contribution. In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing paragraphs of this Section 10 is applicable in accordance with its terms but for any reasonis held to be unavailable from the Company or the Agent, the Company and the Agent will contribute to the total losses, claims, liabilities, expenses and damages (including any investigative, legal and other expenses reasonably incurred inconnection with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted, but after deducting any contribution received by the Company from persons other than the Agent, such as persons who control the Companywithin the meaning of the Securities Act, officers of the Company who signed the Registration Statement and trustees of the Company, who also may be liable for contribution) to which the Company and the Agent may be subject in such proportion asshall be appropriate to reflect the relative benefits received by the Company on the one hand and the Agent on the other hand. The relative 

 

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benefits received by the Company on the one hand and the Agent on the other hand shall be deemed to be in the same proportion as the total net proceeds from the sale of the Placement Shares(before deducting expenses) received by the Company bear to the total compensation received by the Agent (before deducting expenses) from the sale of Placement Shares on behalf of the Company. If, but only if, the allocation provided by theforegoing sentence is not permitted by applicable law, the allocation of contribution shall be made in such proportion as is appropriate to reflect not only the relative benefits referred to in the foregoing sentence but also the relative fault ofthe Company, on the one hand, and the Agent, on the other hand, with respect to the statements or omission that resulted in such loss, claim, liability, expense or damage, or action in respect thereof, as well as any other relevant equitableconsiderations with respect to such offering. Such relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material factrelates to information supplied by the Company or the Agent, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Agent agree that itwould not be just and equitable if contributions pursuant to this Section 10(e) were to be determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to herein.The amount paid or payable by an indemnified party as a result of the loss, claim, liability, expense, or damage, or action in respect thereof, referred to above in this Section 10(e) shall be deemed to include, for the purpose of thisSection 10(e), any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim to the extent consistent with Section 10(c) hereof. Notwithstanding theforegoing provisions of this Section 10(e), the Agent shall not be required to contribute any amount in excess of the commissions received by it under this Agreement and no person found guilty of fraudulent misrepresentation (within the meaningof Section 11(f) of the Securities Act) will be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 10(e), any person who controls a party to this Agreement withinthe meaning of the Securities Act, and any officers, directors, partners, employees or agents of the Agent, will have the same rights to contribution as that party, and each officer of the Company who signed the Registration Statement will have thesame rights to contribution as the Company, subject in each case to the provisions hereof. Any party entitled to contribution, promptly after receipt of notice of commencement of any action against such party in respect of which a claim forcontribution may be made under this Section 10(e), will notify any such party or parties from whom contribution may be sought, but the omission to so notify will not relieve that party or parties from whom contribution may be sought from anyother obligation it or they may have under this Section 10(e) except to the extent that the failure to so notify such other party materially prejudiced the substantive rights or defenses of the party from whom contribution is sought. Except fora settlement entered into pursuant to the last sentence of Section 10(c) hereof, no party will be liable for contribution with respect to any action or claim settled without its written consent if such consent is required pursuant toSection 10(c) hereof. 

11. Representations and Agreements to Survive Delivery. The indemnity and contributionagreements contained in Section 10 of this Agreement and all representations and warranties of the Company herein or in certificates delivered pursuant hereto shall survive, as of their respective dates, regardless of (i) any investigationmade by or on behalf of the Agent, any controlling persons, or the Company (or any of their respective officers, trustees or controlling persons), (ii) delivery and acceptance of the Placement Shares and payment therefor or (iii) anytermination of this Agreement. 

 

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12. Termination. 

(a) The Agent may terminate this Agreement, by notice to the Company, as hereinafter specified at any time (1) if there has been,since the time of execution of this Agreement or since the date as of which information is given in the Prospectus, any change, or any development or event involving a prospective change, in the condition, financial or otherwise, or in the business,properties, earnings, results of operations or prospects of the Company and its Subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, which individually or in the aggregate, in the sole judgment of theAgent is material and adverse and makes it impractical or inadvisable to market the Placement Shares or to enforce contracts for the sale of the Placement Shares, (2) if there has occurred any material adverse change in the financial markets inthe United States or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial oreconomic conditions, in each case the effect of which is such as to make it, in the judgment of the Agent, impracticable or inadvisable to market the Placement Shares or to enforce contracts for the sale of the Placement Shares, (3) if tradingin the Common Shares has been suspended or limited by the Commission or the Exchange, or if trading generally on the Exchange has been suspended or limited, or minimum prices for trading have been fixed on the Exchange, (4) if any suspension oftrading of any securities of the Company on any exchange or in the over-the-counter market shall have occurred and be continuing, (5) if a major disruption of securities settlements or clearance services in the United States shall have occurredand be continuing, or (6) if a banking moratorium has been declared by either U.S. Federal or New York authorities. Any such termination shall be without liability of any party to any other party except that the provisions of Section 8(Expenses), Section 10 (Indemnification), Section 11 (Survival of Representations), Section 17 (Applicable Law; Waiver of Jury Trial) and Section 18 (Consent to Jurisdiction) hereof shall remain in full force and effectnotwithstanding such termination. If the Agent elects to terminate this Agreement as provided in this Section 12(a), the Agent shall provide the required notice as specified in Section 13 (Notices). 

(b) The Company shall have the right, by giving five (5) days notice as hereinafter specified to terminate this Agreement in itssole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other party except that the provisions of Section 8, Section 10, Section 11, Section 17 andSection 18 hereof shall remain in full force and effect notwithstanding such termination. 

(c) The Agent shall have theright, by giving five (5) days notice as hereinafter specified to terminate this Agreement in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other partyexcept that the provisions of Section 8, Section 10, Section 11, Section 17 and Section 18 hereof shall remain in full force and effect notwithstanding such termination. 

(d) Unless earlier terminated pursuant to this Section 12, this Agreement shall automatically terminate upon the issuance and saleof all of the Placement Shares through the 

 

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Agent on the terms and subject to the conditions set forth herein; provided that the provisions of Section 8, Section 10, Section 11, Section 17 and Section 18hereof shall remain in full force and effect notwithstanding such termination. 

(e) This Agreement shall remain in full forceand effect unless terminated pursuant to Sections 12(a), (b), (c), or (d) above or otherwise by mutual agreement of the parties; provided, however, that any such termination by mutual agreement shall in all cases be deemed toprovide that Section 8, Section 10, Section 11, Section 17 and Section 18 shall remain in full force and effect. 

(f) Any termination of this Agreement shall be effective on the date specified in such notice of termination; provided,however, that such termination shall not be effective until the close of business on the date of receipt of such notice by the Agent or the Company, as the case may be. If such termination shall occur prior to the Settlement Date for any saleof Placement Shares, such Placement Shares shall settle in accordance with the provisions of this Agreement. 

13.Notices. Any Placement Notice, Rejection Notice, Confirmation Notice or Suspension Notice may be delivered in the manner described above. All other notices or other communications required or permitted to be given by any party to any otherparty pursuant to the terms of this Agreement shall be in writing, unless otherwise specified, and if sent to the Agent, shall be delivered to: 

JonesTrading Institutional Services LLC 

265 Franklin Street 

18th Floor 

Boston, MA 02110 

Attention: Mr. Steve Chmielewski 

Facsimile: (781) 416-2899 

witha copy to: 

DLA Piper LLP (US) 

1251 Avenue of the Americas 

New York, NY 10020 

Attention: James T. Seery 

Facsimile: (212) 884-8530 

andif to the Company, shall be delivered to: 

Jack E. Salmon 

Chief Financial Officer and Treasurer 

RAIT Financial Trust 

Cira Centre, 2929 Arch Street, 17th Floor 

Philadelphia, PA 19104 

Facsimile: (215) 243-9039 

 

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with a copy to: 

J. Baur Whittlesey, Esq. 

Ledgewood, a professional corporation 

1900 Market Street, Suite 750 

Philadelphia, PA 19103 

Facsimile: (215) 735-2513 

Each party to this Agreement may change such address for notices by sending to the parties to this Agreement written notice of a newaddress for such purpose. Each party to this Agreement may change the contact information on Schedule 3 for any of such party’s Notice Parties by sending to the other party to this Agreement written notice of any new contact information.Each such notice or other communication shall be deemed given (i) when delivered personally or by verifiable facsimile transmission (with an original to follow) on or before 4:30 p.m., New York City time, on a Business Day or, if such dayis not a Business Day, on the next succeeding Business Day, (ii) on the next Business Day after timely delivery to a nationally-recognized overnight courier and (iii) on the Business Day actually received if deposited in the U.S. mail(certified or registered mail, return receipt requested, postage prepaid). For purposes of this Agreement, “Business Day” shall mean any day on which the Exchange and commercial banks in the City of New York are open for business.

An electronic communication (“Electronic Notice”) shall be deemed written notice for purposes of thisSection 13 if sent to the electronic mail address specified by the receiving party under separate cover. Electronic Notice shall be deemed received at the time the party sending Electronic Notice receives verification of receipt by thereceiving party. Any party receiving Electronic Notice may request and shall be entitled to receive the notice on paper, in a nonelectronic form (“Nonelectronic Notice”) which shall be sent to the requesting party within ten(10) days of receipt of the written request for Nonelectronic Notice. 

14. Successors and Assigns. This Agreementshall inure to the benefit of and be binding upon the Company and the Agent and their respective successors and the affiliates, controlling persons, officers, trustees and directors referred to in Section 10 hereof. References to any of theparties contained in this Agreement shall be deemed to include the successors and permitted assigns of such party. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respectivesuccessors and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. Neither party may assign its rights or obligations under this Agreement withoutthe prior written consent of the other party. 

15. Adjustments for Stock Splits. The parties acknowledge and agree thatall share-related numbers contained in this Agreement shall be adjusted to take into account any stock split, stock dividend or similar event effected with respect to the Placement Shares. 

16. Entire Agreement; Amendment; Severability. This Agreement (including all schedules and exhibits attached hereto and PlacementNotices issued pursuant hereto) constitutes the entire agreement and supersedes all other prior and contemporaneous agreements and undertakings, both written and oral, among the parties hereto with regard to the subject matter

 

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hereof. Neither this Agreement nor any term hereof may be amended except pursuant to a written instrument executed by the Company and the Agent. In the event that any one or more of theprovisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable as written by a court of competent jurisdiction, then such provision shall be given full force and effect to the fullest possibleextent that it is valid, legal and enforceable, and the remainder of the terms and provisions herein shall be construed as if such invalid, illegal or unenforceable term or provision was not contained herein, but only to the extent that givingeffect to such provision and the remainder of the terms and provisions hereof shall be in accordance with the intent of the parties as reflected in this Agreement. 

**17. GOVERNING LAW AND TIME; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWSOF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME. THE COMPANY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIALBY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.**

**18. CONSENT TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERALCOURTS SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH ANY TRANSACTION CONTEMPLATED HEREBY, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION ORPROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTYHEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF (CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED) TO SUCH PARTY AT THE ADDRESS INEFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANYMANNER PERMITTED BY LAW.**

19. Use of Information. The Agent may not use any information gained in connection withthis Agreement and the transactions contemplated by this Agreement, including due diligence, to advise any party with respect to transactions not expressly approved by the Company. 

20. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but allof which together shall constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be made by facsimile transmission. 

 

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21. Effect of Headings. 

The section and Exhibit headings herein are for convenience only and shall not affect the construction hereof. 

22. Permitted Free Writing Prospectuses. 

The Company represents, warrants and agrees that, unless it obtains the prior consent of the Agent, and the Agent represents, warrantsand agrees that, unless it obtains the prior consent of the Company, it has not made and will not make any offer relating to the Placement Shares that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a“free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented to by the Agent or by the Company, as the case may be, is referred to in this Agreement as a“Permitted Free Writing Prospectus.” The Company represents and warrants that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined inRule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. For the purposes ofclarity, the parties hereto agree that all free writing prospectuses, if any, listed in Exhibit G hereto are Permitted Free Writing Prospectuses. 

23. Absence of Fiduciary Relationship. 

The Company acknowledges and agrees that: 

(a) The Agent is acting solely as agent in connection with the public offering of the Placement Shares and in connection with eachtransaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors oremployees or any other party, on the one hand, and the Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not the Agent has advised or is advisingthe Company on other matters, and the Agent has no obligation to the Company with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement; 

(b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactionscontemplated by this Agreement; 

(c) the Agent has not provided any legal, accounting, regulatory or tax advice with respectto the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate; 

(d) it is aware that the Agent and its affiliates are engaged in a broad range of transactions which may involve interests that differfrom those of the Company and the Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; and 

 

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(e) it waives, to the fullest extent permitted by law, any claims it may have against theAgent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that the Agent shall not have any liability (whether direct or indirect, in contract, tort orotherwise) to it in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of the Agent’s obligationsunder this Agreement and to keep information provided by the Company to the Agent and the Agent’s counsel confidential to the extent not otherwise publicly-available. 

24. Definitions. 

As used in this Agreement, the following terms have the respective meanings set forth below: 

“Applicable Time” means (i) each Representation Date and (ii) the time of each sale of any Placement Sharespursuant to this Agreement. 

“Issuer Free Writing Prospectus” means any “issuer free writingprospectus,” as defined in Rule 433, relating to the Placement Shares that (1) is required to be filed with the Commission by the Company, (2) is a “road show” that is a “written communication” within themeaning of Rule 433(d)(8)(i) whether or not required to be filed with the Commission, or (3) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Placement Shares or of the offering that doesnot reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g) under the Securities Act Regulations.

“Rule 163,” “Rule 164,” “Rule 172,” “Rule 405,”“Rule 415,” “Rule 424,” “Rule 424(b),” “Rule 430B,” and “Rule 433” refer to such rules under the Securities Act Regulations. 

All references in this Agreement to financial statements and schedules and other information that is “contained,”“included” or “stated” in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information that isincorporated by reference in the Registration Statement or the Prospectus, as the case may be. 

All references in thisAgreement to the Registration Statement, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to EDGAR; all references in this Agreement to any Issuer FreeWriting Prospectus (other than any Issuer Free Writing Prospectuses that, pursuant to Rule 433, are not required to be filed with the Commission) shall be deemed to include the copy thereof filed with the Commission pursuant to EDGAR; and allreferences in this Agreement to “supplements” to the Prospectus shall include, without limitation, any supplements, “wrappers” or similar materials prepared in connection with any offering, sale or private placement of anyPlacement Shares by the Agent outside of the United States. 

 

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If the foregoing correctly sets forth the understanding between the Company and the Agent,please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding agreement between the Company and the Agent. 

 

 
Very truly yours,RAIT FINANCIAL TRUSTBy: 
/s/    Jack E. Salmon
 Name: Jack E. Salmon Title: Chief Financial Officer and TreasurerRAIT PARTNERSHIP, L.P.By: RAIT General, Inc., its sole general partnerBy: 
/s/    Jack E. Salmon
 Name: Jack E. Salmon Title: Chief Financial Officer and TreasurerACCEPTED as of the date first-above written:JONESTRADING INSTITUTIONAL SERVICES LLCBy: 
/s/    Steve Chmielewski
 Name: Steve Chmielewski Title: Chief Operating Officer and General Counsel

**SCHEDULE 1**

 

 

**FORM OFPLACEMENT NOTICE**

 

 

From: RAIT Financial Trust 

To: JonesTradingInstitutional Services LLC 

Attention:                                

Subject: Placement Notice 

Gentlemen:

Pursuant to the terms and subject to the conditions contained in the Capital on DemandTM Sales Agreement among RAITFinancial Trust, a Maryland real estate investment trust (the “Company”), RAIT Partnership, L.P., a Delaware limited partnership, and JonesTrading Institutional Services LLC (“Agent”), dated August 6, 2010, theCompany hereby requests that the Agent sell up to                          of the Company’s common shares ofbeneficial interest, par value $0.01 per share, at a minimum market price of $             per share, during the time period beginning [month, day, time] and ending [month, day,time]. 

**SCHEDULE 2**

 

 

**Compensation**

 

 

The Company shall pay to the Agent in cash, upon each sale of Placement Shares pursuant to this Agreement, an amount equal to up to 3% ofthe gross proceeds from each sale of Placement Shares. 

**SCHEDULE 3**

 

 

**NoticeParties**

 

 

 
The Company         
**Email**
  
**Telephone**
  
**Facsimile**
Scott Schaeffer  sschaeffer@raitft.com  215-243-9099  215-243-9097Jack Salmon  jsalmon@raitft.com  215-243-9032  215-243-9039Raphael Licht  rlicht@raitft.com  215-243-9033  215-243-9039The Agent      
Andrew Tuthill
  atuthill@jonestrading.com  415-388-1082  212-907-5365
Moe Cohen
  moec@jonestrading.com  212-907-5332  212-907-5365

**SCHEDULE 4**

 

 

**Subsidiaries**

 

 

RAIT CRE CDO I, Ltd., a Cayman Island exempted company 

RAIT CRE Holdings, LLC, a Delaware limited liability company 

RAIT Partnership, L.P., a Delaware limited partnership 

RAIT Preferred Funding II, Ltd. (f/k/a RAIT CRE CDO II, Ltd.), a Cayman Island exempted company 

Taberna Equity Funding, Ltd, a Cayman Island exempted company 

Taberna Preferred Funding VIII, Ltd., a Cayman Island exempted company (“T8”) Section 6(g): 100% of the ordinary shares of T8 are held byED Limited, a Cayman Islands entity (on charitable trust). 

Taberna Preferred Funding IX, Ltd., a Cayman Island exempted company(“T9”) Section 6(g): 100% of the ordinary shares of T9 are held by ED Limited, a Cayman Islands entity (on charitable trust) 

Taberna Realty Finance Trust, a Maryland real estate investment trust (“TRFT”) Section 6(g): RAIT Financial Trust holds 100% ofTRFT’s common shares of beneficial interest, par value $0.01 per share, and 83% of TRFT’s 12.5% Series A Cumulative Non-Voting Preferred Shares (the “TRFT Preferred Shares”). The remaining 17% of the TRFT Preferred Shares is heldby approximately 125 investors. 

**EXHIBIT 7(m)**

**Form of Representation Date Certificate**

This Officers Certificate (this “Certificate”) is executed and delivered in connection with Section 7(m) of the At Market IssuanceSales Agreement (the “Agreement”), dated August 6, 2010, and entered into between RAIT Financial Trust. (the “Company”), RAIT Partnership, L.P. (the “Partnership”) and JonesTradingInstitutional Services LLC. All capitalized terms used but not defined herein shall have the meanings given to such terms in the Agreement 

The undersigned, a duly appointed and authorized officer of the Company, having made all necessary inquiries to establish the accuracy ofthe statements below and having been authorized by the Company to execute this certificate, hereby certifies as follows: 

1.As of the date of this Certificate, (i) the Registration Statement does not contain any 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 notmisleading and (ii) neither the Registration Statement nor the Prospectus contain any 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, inlight of the circumstances under which they were made, not misleading and (iii) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading.

2. Each of the representations and warranties of the Company contained in the Agreement were, when originally made, and are,as of the date of this Certificate, true and correct in all material respects. 

3. Each of the covenants required to beperformed by the Company or the Partnership in the Agreement on or prior to the date of the Agreement, this Representation Date, and each such other date as set forth in the Agreement, has been duly, timely and fully performed in all materialrespects and each condition required to be complied with by the Company or the Partnership on or prior to the date of the Agreement, this Representation Date, and each such other date as set forth in the Agreement or in the Waivers has been duly,timely and fully complied with in all material respects. 

4. Subsequent to the date of the most recent financial statements inthe Prospectus, there has been no Material Adverse Effect. 

5. No stop order suspending the effectiveness of the RegistrationStatement or of any part thereof has been issued, and no proceedings for that purpose have been instituted or are pending or threatened by any securities or other governmental authority (including, without limitation, the Commission). 

6. No order suspending the effectiveness of the Registration Statement or the qualification or registration of the Placement Shares underthe securities or Blue Sky laws of any jurisdiction are in effect and no proceeding for such purpose is pending before, or threatened, to the Company’s knowledge or in writing by, any securities or other governmental authority (including,without limitation, the Commission). 

The undersigned has executed this Officer's Certificate as of the date first written above.

 
RAIT FINANCIAL TRUSTBy: 
 
 Name: Title:RAIT PARTNERSHIP, L.P.By. RAIT General, Inc., its sole general partnerBy: 
 
 Name: Title:
 

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**EXHIBIT 7(n)**

**Form of Legal Opinion**

**MATTERS TO BE COVERED BY OPINION**

(i) The Company is a real estate investment trust duly formed and existing under and by virtue of the laws of the State of Maryland andis in good standing with the Department of Assessments and Taxation of Maryland, with trust power to own, lease and operate its properties and conduct its business in all material respects as described in the Registration Statement and Prospectus.

(ii) The authorized common shares of beneficial interest of the Company conforms as to legal matters to the descriptionthereof contained in the Prospectus. 

(iii) The Company is duly qualified or registered to transact business in eachjurisdiction set forth on Schedule 1 hereto. To the knowledge of such counsel, other than the Company’s interests in its Subsidiaries disclosed in Exhibit 21.1 to the Company’s Annual Report on Form 10-K for the year endedDecember 31, 2009 or as disclosed in the Prospectus, the Company does not own, directly or indirectly, any common shares or other equity securities of any corporation or any ownership interest in any limited liability company, partnership,joint venture or other association except such subsidiaries which do not constitute significant subsidiaries (as such term is defined in Rule 1-02 of Regulation S-X promulgated by the Securities and Exchange Commission) or for such other securitiesand ownership interests which in the aggregate are not material. 

(iv) The Partnership is a limited partnership duly formedand existing under and by virtue of the laws of the State of Delaware and is in good standing with the Delaware Secretary of State. The Partnership is duly qualified or registered to transact business in each jurisdiction set forth on Schedule2 hereto. 

(v) The execution, delivery and performance of this Agreement by the Company and the Partnership and theconsummation of the transactions contemplated hereby do not conflict with, or result in any breach of, or constitute a default under (nor constitute an event that with notice, lapse of time or both would constitute a breach of or default under),(i) the Company’s Amended and Restated Declaration of Trust or Second Amended and Restated Bylaws, or any other organizational document of the Company or any of its Subsidiaries (collectively, the “***OrganizationalDocuments***”), (ii) any material contract or agreement filed as an exhibit to the Company’s Annual Report on Form 10-K for the year ended December 31, 2009 (each, a “***Material Contract***”);provided, however, that such counsel need express no opinion (a) as to whether the execution, delivery or performance of any contract, instrument or agreement will constitute a violation of, or a default under, any covenant,restriction or provision with respect to financial ratios or tests or any aspect of the financial condition or results of operations of any person or entity or (b) with respect to any matter which requires mathematical calculation or anyfinancial or accounting determination or (iii) to such counsel’s knowledge, any law, decree, judgment or order known to it and specifically directed to the Company (other than state and foreign securities or blue sky laws, as to which suchcounsel need express no opinion), except in the case of clauses (ii) and (iii) for such conflicts, breaches or defaults, which individually or in the aggregate could not be reasonably expected to have a Material Adverse Effect. 

 

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(vi) Each of the Company and the Partnership has the corporate or limited partnership power,as applicable, to execute and deliver this Agreement and, in the case of the Company, to issue, sell and deliver the Placement Shares as contemplated in this Agreement. This Agreement has been duly authorized, executed and, so far as is known tosuch counsel, delivered by the Company and the Partnership. 

(vii) No approval, authorization, consent or order of, or filingwith, any federal or state governmental or regulatory commission, board, body, authority or agency is required under applicable law in connection with the execution, delivery and performance of this Agreement, or the consummation of the transactionscontemplated hereby, by the Company or the Partnership, other than such as have been obtained or made under the Securities Act or the Exchange Act and such approvals as have been obtained, subject to official notice of issuance, in connection withthe listing of the Placement Shares on the Exchange, except such as may be required by the securities or blue sky laws of the various states or by FINRA, in connection with the offer and sale of the Shares, as to which we express no opinion.

(viii) The Placement Shares, when issued and delivered by the Company pursuant to this Agreement against payment of theconsideration set forth therein, will be duly authorized, validly issued, fully paid and nonassessable. 

(ix) The issuance andsale of the Placement Shares by the Company is not subject to preemptive or other similar rights arising by operation of Maryland law, under the Company’s Organizational Documents or under any Material Contract. 

(x) To such counsel’s knowledge, except as otherwise described in the Prospectus or referred to in the Agreement, there are nopersons with registration or other similar rights to have any securities registered pursuant to the Registration Statement. 

(xi) At the time the Registration Statement became effective (including each deemed effective date with respect to Agent pursuant to Rule430B(f)(2)), the Registration Statement and, as of its date and the date of such opinion, the Prospectus (in each case, other than the financial statements, financial schedules and other financial and statistical data included or incorporated byreference in, or excluded from, the Registration Statement and the Prospectus, as to which such counsel need express no opinion) complied as to form in all material respects with the requirements of the Securities Act. 

(xii) Each document incorporated by reference in the Registration Statement or the Prospectus (in each case, other than the financialstatements, financial schedules and other financial and statistical data included or incorporated by reference in, or excluded from, such document, as to which such counsel need express no opinion), when it was filed with the Commission, complied asto form in all material respects to the requirements of the Exchange Act. 

(xiii) The statements under the caption“Description of Our Shares of Beneficial Interest” in the Prospectus, insofar as such statements constitute a summary of the legal matters referred to therein, constitute accurate summaries thereof in all material respects as of the dateof such statements. 

 

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(xiv) To such counsel’s knowledge, there are no actions, suits or proceedings orinquiries or investigations, pending or overtly threatened in writing, against the Company or to which the Company’s assets (excluding the Company’s direct or indirect interests in its Subsidiaries) are subject, at law or in equity, beforeor by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitration panel or agency that are required to be described in the Prospectus or the documents incorporated therein by reference but are notso described. 

(xv) The Company is not an “investment company” required to register under the Investment Company Actof 1940, as amended, (the “1940 Act”) or a company “controlled” by an “investment company” within the meaning of the 1940 Act. 

(xvi) The Shares to be issued and sold by the Company pursuant to the Sales Agreement, are duly listed, and admitted and authorized fortrading, subject to official notice of issuance, on the NYSE. 

(xvii) The Registration Statement has been declared effectiveby the Commission under the Securities Act. To the knowledge of such counsel, (a) no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and (b) no proceedings for such purposehave been instituted or are pending or are contemplated or threatened by the Commission. Any required filing of the Prospectus and any supplement thereto pursuant to Rule 424(b) under the Securities Act has been made in the manner and within thetime period required by such Rule 424(b). 

(xviii) Commencing with its taxable year ended December 31, 2005 and throughits taxable year ended December 31, 2009, the Company has been organized and has operated in conformity with the requirements for qualification and taxation as a real estate investment trust under the Code (a “REIT”), and itsorganization and proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT for subsequent taxable years. 

(xix) The statements under the caption “Material U.S. Federal Income Tax Considerations,” incorporated by reference in theProspectus, insofar as such statements constitute matters of law, summaries of legal matters, or legal conclusions, fairly present and summarize, in all material respects, the matters referred to therein. 

The opinion of counsel will be accompanied by a standard Rule 10b-5 negative assurance letter. 

 

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