CUBESMART AMENDMENT NO. 3 TO EQUITY DISTRIBUTION AGREEMENT
Exhibit 1.2
CUBESMART
AMENDMENT NO. 3
TO
EQUITY DISTRIBUTION AGREEMENT
December 30, 2015
[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 and Amendment No. 2 to Equity Distribution Agreement, dated October 2, 2014 (collectively, 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 30,000,000 shares of the Company’s common shares of beneficial interest, par value $0.01 per share. All capitalized terms used in this Amendment No. 3 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 40,000,000 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 (each an “Alternative Distribution Agreement” and, collectively, the “Alternative Distribution Agreements”) with each of [Wells Fargo Securities,
LLC], [Barclays Capital Inc.], [BMO Capital Markets Corp.], [Jefferies LLC], [Merrill Lynch, Pierce, Fenner & Smith Incorporated] and [RBC Capital Markets, LLC] (each an “Alternative Manager” and collectively, the “Alternative Managers”). Each of the Alternative Distribution Agreements is dated as of May 7, 2013, as amended by Amendment No. 1 to such agreements, dated as of May 5, 2014, by Amendment No. 2 to such agreements, dated as of October 2, 2014, and by Amendment No. 3 to such agreements, dated as of even date herewith, other than the Alternative Distribution Agreement with Barclays Capital Inc., which is dated December 30, 2015.”
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, October 2, 2014 and December 30, 2015” 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 paragraph of the Form of Officer Certificate attached as Exhibit 7(n) to the Equity Distribution Agreement is hereby deleted and replaced with the following:
“The undersigned, the duly qualified and elected of CUBESMART (“Company”), a Maryland real estate investment trust, does hereby certify in such capacity and on behalf of the Company, pursuant to Section 7(n) of the Equity Distribution Agreements, each originally dated as of May 7, 2013, among the Company and CubeSmart, L.P. (“Operating Partnership” and together with the Company, the “Transaction Entities”) on the one hand, and each of and Wells Fargo Securities, LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, BMO Capital Markets Corp., Jefferies LLC and RBC Capital Markets, LLC, on the other hand, and the Equity Distribution Agreement, dated as of December 30, 2015 among the Transaction Entities and Barclays Capital Inc. (such agreements, as may be amended from time to time, collectively, the “Sales Agreements”), that to the best of the knowledge of the undersigned:”
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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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. 3 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 |
[Signature Page to Amendment No. 3 Equity Distribution Agreement]
| ACCEPTED as of the date first-above |
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| [MANAGER] |
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[Signature Page — Amendment No. 3 to Equity Distribution Agreement]
EXHIBIT A
SCHEDULE OF SUBSIDIARIES
| Entity Name |
| 186 JAMAICA AVE, LLC |
| 191 III CUBE BORDEAUX SUB, LLC |
| 191 III CUBE CHATTANOOGA SUB, LLC |
| 191 III CUBE FL SUB LLC |
| 191 III CUBE I-65 @ TRINITY SUB, LLC |
| 191 III Cube LLC |
| 191 III CUBE MA SUB LLC |
| 191 III CUBE MI SUB LLC |
| 191 III CUBE MURFREESBORO SUB, LLC |
| 191 III CUBE NEW BEDFORD SUB, LLC |
| 191 III CUBE OLD HICKORY SUB, LLC |
| 191 III CUBE SUB HOLDINGS 1 LLC |
| 191 III CUBE SUB HOLDINGS 2 LLC |
| 191 III CUBE SUB HOLDINGS 3 LLC |
| 191 III CUBE SUB HOLDINGS 4 LLC |
| 191 III CUBE SUB HOLDINGS 5 LLC |
| 191 III CUBE SUB HOLDINGS 6 LLC |
| 191 III CUBE SUB HOLDINGS 7 LLC |
| 191 III CUBE TN SUB LLC |
| 2301 TILLOTSON AVE, LLC |
| 251 JAMAICA AVE, LLC |
| 3068 CROPSEY AVENUE, LLC |
| 444 55th Street Mezz, LLC |
| 444 55TH STREET, LLC |
| 5 Old Lancaster Associates, LLC |
| CONSHOHOCKEN GP II, LLC |
| CS FLORIDA AVENUE, LLC |
| CS SDP WALTHAM, 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 III TRS LLC |
| CUBE VENTURE GP, LLC |
| 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 Management, LLC |
| CUBESMART NEW ROCHELLE, LLC |
| CUBESMART PINE LAKES, LLC |
| CUBESMART SOUTHERN BLVD, LLC |
| CUBESMART SWISS AVE, 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. |
| PSI Atlantic Austin TX, LLC |
| PSI Atlantic Brockton MA, LLC |
| PSI Atlantic Cornelius NC, LLC |
| PSI Atlantic Haverhill MA, LLC |
| PSI Atlantic Holbrook NY, LLC |
| PSI Atlantic Humble TX, LLC |
| PSI Atlantic Lawrence MA, LLC |
| PSI Atlantic Lithia Springs GA, LLC |
| PSI Atlantic Nashville TN, LLC |
| PSI Atlantic NPB FL, LLC |
| PSI Atlantic Pineville NC, LLC |
| PSI Atlantic REIT, Inc. |
| PSI Atlantic Surprise AZ, LLC |
| PSI Atlantic TRS, LLC |
| PSI Atlantic Villa Rica GA, LLC |
| PSI Atlantic Villa Rica Parcel Owner, LLC |
| R STREET STORAGE ASSOCIATES, LLC |
| SHIRLINGTON RD II, LLC |
| SHIRLINGTON RD TRS, 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 |
| UNITED-HSRE I, L.P. |
| U-Store-It Development LLC |
| U-Store-It Trust Luxembourg S.ar.l. |
| Wider Reach, LLC |
| YSI Burke Lake, LLC |
| YSI HART TRS, INC |
| YSI I LLC |
| YSI II 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 XXXIII, LLC |
| YSI XXXIIIA, LLC |
| YSI XXXVII, LLC |
| YSI-Hart Limited Partnership |
