In connection with the foregoing, the parties hereto wish to amend the Agreement through this Amendment No. 5 to the At Market Issuance Sales Agreement (this “Amendment”) to make certain changes to the Agreement with effect on and after the date hereof (the “Effective Date”).
SECTION 1. Definitions. Unless otherwise defined herein, capitalized terms used herein shall have the respective meanings assigned thereto in the Agreement.
SECTION 2. Amendments. The parties hereto agree, from and after the Effective Date, that:
| (a) | Section 1(xxxv) (REIT Status): |
(i) Section 1(xxxv) of the Agreement is hereby amended and restated as follows:
REIT Status. Commencing with its taxable year ended December 31, 2013, the Company has been organized and operated in conformity with the requirements for qualification and taxation as a “real estate investment trust” (a “REIT”) under Sections 856 through 860 of the Internal Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder (collectively, the “Code”), and the Company’s current and proposed method of operation as described in the General Disclosure Package and the Prospectus will enable the Company to meet the requirements for qualification and taxation as a REIT under the Code with respect to the Company’s taxable year ending December 31, 2023. The Company currently intends to continue to operate in a manner which would permit it to qualify and be taxed as a REIT under the Code for the taxable year ending on December 31, 2023. All statements regarding the Company’s organization and proposed method of operation set forth in the Prospectus and the General Disclosure Package are true, correct and complete in all material respects.
| (b) | Section 3(v) (REIT Status): |
(i) Section 3(v) of the Agreement is hereby amended and restated as follows:
REIT Status. The Company will use its best efforts to meet the requirements for qualification and taxation as a REIT under the Code for its taxable year ending December 31, 2023.
SECTION 4. No Further Amendment. The Agreement, as amended by the Amendment, is in all respects ratified and confirmed and all the terms, conditions, and provisions thereof shall remain in full force and effect. This Amendment is limited precisely as written and shall not be deemed to be an amendment to any other term or condition of the Agreement or any of the documents referred to therein.
SECTION 5. Governing Law. This Amendment and any claim, counterclaim, controversy or dispute of any kind or nature whatsoever arising out of or in any way relating to this Amendment, directly or indirectly, shall be governed by and construed in accordance with the laws of the State of New York.
SECTION 6. Counterparts. This Amendment may be signed in counterparts, each of which shall be an original and all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions
