CUBESMART Form of AMENDMENT NO. 1 TO EQUITY DISTRIBUTION AGREEMENT
Exhibit 1.1
CUBESMART
Form of AMENDMENT NO. 1
TO
EQUITY DISTRIBUTION AGREEMENT
May 5, 2014
[Manager]
[Manager Addres]
[Manager Address]
Ladies and Gentlemen:
Reference is made to the Equity Distribution Agreement, dated May 7, 2013 (the “Equity Distribution Agreement”), among [Manager] (the “Manager”) and CubeSmart, a Maryland real estate investment trust (the “Company”), and CubeSmart, L.P., a Delaware limited partnership (the “Operating Partnership” and together with the Company, the “Transaction Entities”), pursuant to which the Company agreed to sell through the Manager, acting as agent and/or principal, up to 12,000,000 shares of the Company’s common shares of beneficial interest, par value $0.01 per share. All capitalized terms used in this Amendment No. 1 to the Equity Distribution Agreement among the Manager and the Transaction Entities (this “Amendment”) and not otherwise defined shall have the respective meanings assigned to them in the Equity Distribution Agreement. The Manager and the Transaction Entities agree as follows:
A. Amendments to Equity Distribution Agreement. The Equity Distribution Agreement is amended as follows:
1. The first sentence of the first paragraph of Section 1 of the Equity Distribution Agreement is hereby deleted and replaced with the following:
“The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through [Manager], acting as agent and/or principal, up to 20,000,000 shares (the “Maximum Amount”) of the Company’s common shares of beneficial interest, par value $0.01 per share (the “Shares”).”
2. The last sentence of Section 1 of the Equity Distribution Agreement is hereby deleted and replaced with the following:
“The Transaction Entities have also entered into separate equity distribution agreements, dated as of May 7, 2013, as amended by Amendment No. 1 to such agreements, dated as of even date herewith (as amended, the “Alternative Distribution Agreements”), with each of [Wells Fargo Securities, LLC], [BMO
Capital Markets Corp.], [Jefferies LLC], [Merrill Lynch, Pierce, Fenner & Smith Incorporated] and [RBC Capital Markets, LLC] (the “Alternative Managers”).”
3. The last sentence of the paragraph in Section 6(b) of the Equity Distribution Agreement is hereby deleted and replaced with the following:
“The Registration Statement became effective upon filing with the Commission.”
4. In Section 12 of the Equity Distribution Agreement, the reference to “CubeSmart, 460 East Swedesford Road, Suite 3000, Wayne, PA 19807” shall be replaced with “CubeSmart, 5 Old Lancaster Road, Malvern, PA 19355”.
5. The first sentence of the Form of Placement Notice attached as Schedule 1 to the Equity Distribution Agreement shall be amended to add “, as amended on May 5, 2014” immediately before “(the “Agreement”)”.
6. Schedule 4 to the Equity Distribution Agreement shall be replaced in its entirety with the schedule set forth as Exhibit A hereto.
7. The first sentence of the Form of Officer Certificate attached as Exhibit 7(n) to the Equity Distribution Agreement is amended to add “, as amended on May 5, 2014” immediately before “(the “Sales Agreement”)”.
B. New Registration Statement Covered by Equity Distribution Agreement. The parties to this Amendment hereby agree that the Registration Statement on Form S-3 (File No. 333-194661) filed with the Commission by the Transaction Entities on March 18, 2014 shall constitute a “new registration statement” for purposes of the third paragraph of Section 1 of the Equity Distribution Agreement. The parties to this Amendment further agree that from and after the initial filing of a Prospectus Supplement to the base prospectus included as part of such new registration statement, all references to “Registration Statement” included in the Equity Distribution Agreement shall be deemed to include such new registration statement, including all documents incorporated by reference therein pursuant to Item 12 of Form S-3, and all references to “base prospectus” included in the Equity Distribution Agreement shall be deemed to include the final form of prospectus, including all documents incorporated therein by reference, included in such new registration statement at the time of the initial filing of a Prospectus Supplement to the base prospectus included as part of such new registration statement. For the avoidance of confusion, all references to “Registration Statement” included in the Equity Distribution Agreement relating to the offer and sale of any Shares or such other relevant action that occurred prior to the date of this Amendment shall be deemed to refer to the Company’s registration statement on Form S-3 (File No. 333-176885), including a base prospectus, relating to certain securities, including the Shares, including all documents incorporated by reference therein.
C. Prospectus Supplement. The Company agrees to file a 424(b) Prospectus Supplement reflecting this Amendment within 2 business days of the date hereof.
D. No Other Amendments. Except as set forth in Part A above, all the terms and provisions of the Equity Distribution Agreement shall continue in full force and effect.
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E. Counterparts. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed Amendment by one party to the other may be made by facsimile or email transmission.
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If the foregoing correctly sets forth the understanding among the parties hereto, please so indicate in the space provided below for that purpose, whereupon this Amendment No. 1 to Equity Distribution Agreement shall constitute a binding agreement among the parties hereto.
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| Very truly yours, |
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| CUBESMART |
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| CUBESMART, L.P. | ||
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| By: | CubeSmart, its general partner | |
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| ACCEPTED as of the date first-above |
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| [Manager] |
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5
EXHIBIT A
SCHEDULE OF SUBSIDIARIES
| Entity Name |
| Domestic |
| 186 JAMAICA AVE, LLC |
| Delaware |
| 251 JAMAICA AVE, LLC |
| Delaware |
| 5 Old Lancaster Associates, LLC |
| Pennsylvania |
| CONSHOHOCKEN GP II, LLC |
| Delaware |
| CS SNL NEW YORK AVE, LLC |
| Delaware |
| CS SNL OPERATING COMPANY, LLC |
| Delaware |
| CS VENTURE I, LLC |
| Delaware |
| CUBE HHF Limited Partnership |
| Delaware |
| CUBE HHF TRS, LLC |
| Delaware |
| CUBE VENTURE GP, LLC |
| Delaware |
| CubeSmart |
| Maryland |
| CubeSmart Alexandria, LLC |
| Delaware |
| CubeSmart Allen, LLC |
| Delaware |
| CubeSmart Asset Management, LLC |
| Delaware |
| CUBESMART BARTOW, LLC |
| Delaware |
| CUBESMART BOSTON ROAD, LLC |
| Delaware |
| CUBESMART CLINTON, LLC |
| Delaware |
| CUBESMART CYPRESS, LLC |
| Delaware |
| CUBESMART EAST 135TH, LLC |
| Delaware |
| CUBESMART LEESBURG, LLC |
| Delaware |
| CubeSmart Management, LLC |
| Delaware |
| CUBESMART NEW ROCHELLE, LLC |
| Delaware |
| CUBESMART PINE LAKES, LLC |
| Delaware |
| CUBESMART SOUTHERN BLVD, LLC |
| Delaware |
| CUBESMART TEMPLE HILLS, LLC |
| Delaware |
| CUBESMART TIMONIUM BORROWER, LLC |
| Delaware |
| CubeSmart Timonium, LLC |
| Delaware |
| CubeSmart TRS, Inc. |
| Ohio |
| CUBESMART WILTON, LLC |
| Delaware |
| CubeSmart, L.P. |
| Delaware |
| EAST COAST GP, LLC |
| Delaware |
| EAST COAST STORAGE PARTNERS, L.P. |
| Delaware |
| FREEHOLD MT, LLC |
| Delaware |
| LANGHORNE GP II, LLC |
| Delaware |
| Lantana Property Owner’s Association, Inc. |
| Florida |
| MONTGOMERYVILLE GP II, LLC |
| Delaware |
| Old Lancaster Venture, L.P. |
| Pennsylvania |
| R STREET STORAGE ASSOCIATES LLC |
| Maryland |
| SHIRLINGTON RD, LLC |
| Delaware |
| SOMERSET MT, LLC |
| Delaware |
| STORAGE PARTNERS OF CONSHOHOCKEN, L.P. |
| Delaware |
| STORAGE PARTNERS OF FAIRFAX II, LLC |
| Delaware |
| Storage Partners of Freehold II, LLC |
| Delaware |
| Storage Partners of Langhorne II, LP |
| Delaware |
| STORAGE PARTNERS OF MONTGOMERYVILLE, L.P. |
| Delaware |
| STORAGE PARTNERS OF SOMERSET, LLC |
| Delaware |
| STORAGE PARTNERS OF VIENNA II, LLC |
| Delaware |
| STORAGE PARTNERS OF WEST HEMPSTEAD II, LLC |
| Delaware |
| UNITED-HSRE I, L.P. |
| Delaware |
| USI II, LLC |
| Delaware |
| USI Overseas Development Holding, LLC |
| Delaware |
| USI Overseas Development LLC |
| Delaware |
| USIFB LLP |
| London |
| USIFB LP |
| London |
| USIFB Property Investment No. 1 Limited |
| London |
| USIFB Property Investment No. 2 Limited |
| London |
| USIFB Storage Company Limited |
| London |
| U-Store-It Development LLC |
| Delaware |
| U-Store-It Trust Luxembourg S.ar.l. |
| Luxembourg |
| Wider Reach, LLC |
| Delaware |
| YASKY LLC |
| Delaware |
| YSI Burke Lake, LLC |
| Delaware |
| YSI HART TRS, INC |
| Delaware |
| YSI I LLC |
| Delaware |
| YSI II LLC |
| Delaware |
| YSI IV LLC |
| Delaware |
| YSI IX LP |
| Delaware |
| YSI IX LP LLC |
| Delaware |
| YSI VENTURE GP LLC |
| Delaware |
| YSI VENTURE LP LLC |
| Delaware |
| YSI VI LLC |
| Delaware |
| YSI VIII LP |
| Delaware |
| YSI VIII LP LLC |
| Delaware |
| YSI X GP LLC |
| Delaware |
| YSI X LP |
| Delaware |
| YSI X LP LLC |
| Delaware |
| YSI XV LLC |
| Delaware |
| YSI XVII LP |
| Delaware |
| YSI XX GP LLC |
| Delaware |
| YSI XX LP |
| Delaware |
| YSI XX LP LLC |
| Delaware |
| YSI XXVII GP LLC |
| Delaware |
| YSI XXVII LP |
| Delaware |
| YSI XXVII LP LLC |
| Delaware |
| YSI XXX LLC |
| Delaware |
| YSI XXXI, LLC |
| Delaware |
| YSI XXXII, LLC |
| Delaware |
| YSI XXXIII, LLC |
| Delaware |
| YSI XXXIIIA, LLC |
| Delaware |
| YSI XXXV, LLC |
| Delaware |
| YSI XXXVII, LLC |
| Delaware |
| YSI XXXXI, LLC |
| Delaware |
| YSI XXXXVII, LLC |
| Delaware |
| YSI-Hart Limited Partnership |
| Delaware |
