CUBESMART Form of AMENDMENT NO. 2 TO EQUITY DISTRIBUTION AGREEMENT
Exhibit 1.1
CUBESMART
Form of AMENDMENT NO. 2
TO
EQUITY DISTRIBUTION AGREEMENT
October 2, 2014
[Manager]
[Manager Address]
[Manager Address]
Ladies and Gentlemen:
Reference is made to the Equity Distribution Agreement, dated May 7, 2013, as amended by Amendment No. 1 to Equity Distribution Agreement, dated May 5, 2014 (as amended, 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 20,000,000 shares of the Company’s common shares of beneficial interest, par value $0.01 per share. All capitalized terms used in this Amendment No. 2 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 further 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 30,000,000 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 May 5, 2014, and as further amended by Amendment No. 2 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 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, and as further amended on October 2, 2014” immediately before “(the “Agreement”)”.
4. Schedule 4 to the Equity Distribution Agreement shall be replaced in its entirety with the schedule set forth as Exhibit A hereto.
5. 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, and as further amended on October 2, 2014” immediately before “(the “Sales Agreement”)”.
B. Prospectus Supplement. The Company agrees to file a 424(b) Prospectus Supplement reflecting this Amendment within 2 business days of the date hereof.
C. 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.
D. 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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2
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. 2 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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| By: |
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| Name: Timothy M. Martin |
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| Title: Chief Financial Officer |
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| CUBESMART, L.P. | |
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| By: | CubeSmart, its general partner |
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| By: |
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| Name: Timothy M. Martin |
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| Title: Chief Financial Officer |
| ACCEPTED as of the date first-above written: |
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| [Manager] |
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4
EXHIBIT A
SCHEDULE OF SUBSIDIARIES
| Entity Name |
| 186 JAMAICA AVE, LLC |
| 2301 TILLOTSON AVE, LLC |
| 251 JAMAICA AVE, LLC |
| 5 Old Lancaster Associates, LLC |
| CONSHOHOCKEN GP II, LLC |
| CS SNL AVE M, LLC |
| CS SNL NEW YORK AVE, LLC |
| CS SNL OPERATING COMPANY, LLC |
| CS VENTURE I, LLC |
| CUBE HHF Limited Partnership |
| CUBE HHF TRS, LLC |
| CUBE VENTURE GP, LLC |
| CubeSmart |
| CubeSmart Alexandria, LLC |
| CubeSmart Allen, LLC |
| CubeSmart Asset Management, LLC |
| CUBESMART BARTOW, LLC |
| CUBESMART BOSTON ROAD, LLC |
| CUBESMART CLINTON, LLC |
| CUBESMART CYPRESS, LLC |
| CUBESMART EAST 135TH, LLC |
| CUBESMART LEESBURG, LLC |
| CubeSmart Management, LLC |
| CUBESMART NEW ROCHELLE, LLC |
| CUBESMART PINE LAKES, LLC |
| CUBESMART SOUTHERN BLVD, LLC |
| CUBESMART TEMPLE HILLS, LLC |
| CUBESMART TIMONIUM BORROWER, LLC |
| CubeSmart Timonium, LLC |
| CubeSmart TRS, Inc. |
| CUBESMART WILTON, LLC |
| CubeSmart, L.P. |
| EAST COAST GP, LLC |
| EAST COAST STORAGE PARTNERS, L.P. |
| FREEHOLD MT, LLC |
| LANGHORNE GP II, LLC |
| Lantana Property Owner’s Association, Inc. |
| MONTGOMERYVILLE GP II, LLC |
| Old Lancaster Venture, L.P. |
| R STREET STORAGE ASSOCIATES LLC |
| SHIRLINGTON RD, LLC |
| SOMERSET MT, LLC |
| STORAGE PARTNERS OF CONSHOHOCKEN, L.P. |
| Storage Partners of Freehold II, LLC |
| Storage Partners of Langhorne II, LP |
| STORAGE PARTNERS OF MONTGOMERYVILLE, L.P. |
| STORAGE PARTNERS OF SOMERSET, LLC |
| STORAGE PARTNERS OF WEST HEMPSTEAD II, LLC |
| UNITED-HSRE I, L.P. |
| USI Overseas Development Holding, LLC |
| USI Overseas Development LLC |
| USIFB LLP |
| USIFB LP |
| USIFB Property Investment No. 1 Limited |
| USIFB Property Investment No. 2 Limited |
| USIFB Storage Company Limited |
| U-Store-It Development LLC |
| U-Store-It Trust Luxembourg S.ar.l. |
| Wider Reach, LLC |
| YASKY LLC |
| YSI Burke Lake, LLC |
| YSI HART TRS, INC |
| YSI I LLC |
| YSI II LLC |
| YSI IX LP LLC |
| YSI VENTURE GP LLC |
| YSI VENTURE LP LLC |
| YSI X GP LLC |
| YSI X LP |
| YSI X LP LLC |
| YSI XV LLC |
| YSI XX GP LLC |
| YSI XX LP |
| YSI XX LP LLC |
| YSI XXX LLC |
| YSI XXXI, LLC |
| YSI XXXII, LLC |
| YSI XXXIII, LLC |
| YSI XXXIIIA, LLC |
| YSI XXXV, LLC |
| YSI XXXVII, LLC |
| YSI-Hart Limited Partnership |
