U-STORE-IT TRUST CONTROLLED EQUITY OFFERINGSM AMENDMENT NO. 1 TO SALES AGREEMENT
Exhibit 10.1
Execution Copy
U-STORE-IT TRUST
CONTROLLED EQUITY OFFERINGSM
AMENDMENT NO. 1 TO
SALES AGREEMENT
January 26, 2011
CANTOR FITZGERALD & CO.
499 Park Avenue
New York, NY 10022
Ladies and Gentlemen:
Reference is made to the Sales Agreement, dated April 3, 2009 (the “Sales Agreement”), among Cantor Fitzgerald & Co. (“CF&Co”), U-Store-It Trust, a Maryland real estate investment trust (the “Company”), and U-Store-It, L.P., a Delaware limited partnership (the “Operating Partnership”), pursuant to which the Company agreed to sell through CF&Co, as sales agent, up to 10,000,000 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 Sales Agreement among CF&Co, the Company and the Operating Partnership (this “Amendment”) and not otherwise defined shall have the respective meanings assigned to them in the Sales Agreement. CF&Co, the Company and the Operating Partnership agree as follows:
A. Amendments to Sales Agreement. The Sales Agreement is amended as follows:
| 1. |
| The first sentence of the second paragraph of Section 1 of the Sales 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 CF&Co, acting as agent and/or principal, up to 15,000,000 shares (the “Shares”) of the Company’s common shares of beneficial interest, par value $0.01 per share (the “Common Shares”).” |
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| 2. |
| In Section 6(p) of the Sales Agreement, the reference to “Deloitte & Touche LLP” shall be replaced with “KPMG LLP”. |
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| 3. |
| In Section 7(o) of the Sales Agreement, the references to “Venable LLP” and “Bass, Berry & Sims PLC” each shall be replaced with “Pepper Hamilton LLP”. |
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| 4. |
| In Section 12 of the Sales Agreement, (i) the reference to “fax no. (212) 884-8494, Attention: Dean M. Colucci” shall be replaced with “fax no. (212) 884-8466, Attention: Daniel I. Goldberg”; (ii) the reference to “fax no. (610) 293-5720” shall be replaced with “fax no. (610) 293-5729”; and (iii) the reference to “Bass, Berry & Sims PLC, 100 Peabody Place, Suite 900, Memphis, Tennessee 38103, fax no. (888) 543-4644, Attention: John A. Good” shall be replaced with “Pepper Hamilton LLP, 3000 Two Logan Square, Philadelphia, Pennsylvania 19103, fax no. (215) 981-4750, Attention: Michael H. Friedman”. |
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| 5. |
| The first sentence of the Placement Notice attached as Schedule 1 to the Sales Agreement shall be amended to add “as amended on January 26, 2011” immediately before “(the “Agreement”)” at the end thereof. |
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| 6. |
| Schedule 4 to the Sales Agreement shall be replaced in its entirety with the schedule set forth as Exhibit A hereto. |
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| 7. |
| The first sentence of the Officer Certificate attached as Exhibit 7(n) to the Sales Agreement is amended to add “as amended on January 26, 2011” immediately before “(the “Sales Agreement”)” at the end thereof. |
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| 8. |
| In Exhibit 7(o)(1) of the Sales Agreement, the reference to “Venable LLP” shall be replaced with “Pepper Hamilton LLP”. |
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 Sales 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 between the Company, the Operating Partnership and CF&Co, please so indicate in the space provided below for that purpose, whereupon this Amendment No. 1 to Sales Agreement shall constitute a binding agreement among the Company, Operating Partnership and CF&Co.
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| Very truly yours, | ||
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| U-STORE-IT TRUST | ||
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| By: | /s/ Christopher Marr | |
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| Name: | Christopher Marr | |
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| Title: | President and Chief Investment Officer | |
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| U-STORE-IT, L.P. | ||
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| By: U-Store-It Trust, its general partner | ||
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| By: | /s/ Christopher Marr | |
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| Name: | Christopher Marr | |
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| Title: | President and Chief Investment Officer | |
| ACCEPTED as of the date first-above written: |
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| CANTOR FITZGERALD & CO. |
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| By: | /s/ Jeffrey Lumby |
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| Name: | Jeffrey Lumby |
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| Title: | Managing Director |
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[Signature Page to Amendment No. 1 to Sales Agreement]
EXHIBIT A
SCHEDULE 4
SCHEDULE OF SUBSIDIARIES
| Subsidiary |
| Jurisdiction of Organization |
| U-Store-It, L.P. |
| Delaware |
| Acquiport/Amsdell III, LLC |
| Delaware |
| Acquiport/Amsdell IV, LLC |
| Delaware |
| Acquiport/Amsdell VI, LLC |
| Delaware |
| Lantana Property Owner’s Association, Inc. |
| Florida |
| U-Store-It Development LLC |
| Delaware |
| U-Store-It Mini Warehouse Co. |
| Ohio |
| U-Store-It Trust Luxembourg S.ar.l. |
| Luxembourg |
| USI II, LLC |
| Delaware |
| USI Overseas Development Holding L.P. |
| Delaware |
| USI Overseas Development LLC |
| Delaware |
| USIFB LP |
| London |
| USIFB LLP |
| London |
| YASKY LLC |
| Delaware |
| YSI I LLC |
| Delaware |
| YSI II LLC |
| Delaware |
| YSI III LLC |
| Delaware |
| YSI IV LLC |
| Delaware |
| YSI IX GP LLC |
| Delaware |
| YSI IX LP |
| Delaware |
| YSI IX LP LLC |
| Delaware |
| YSI Management LLC |
| Delaware |
| YSI V LLC |
| Delaware |
| YSI VI LLC |
| Delaware |
| YSI VII GP LLC |
| Delaware |
| YSI VII LP |
| Delaware |
| YSI VII LP LLC |
| Delaware |
| YSI VIII GP 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 XI GP LLC |
| Delaware |
| YSI XI LP |
| Delaware |
| YSI XI LP LLC |
| Delaware |
| YSI XII GP LLC |
| Delaware |
| YSI XII LP |
| Delaware |
| YSI XII LP LLC |
| Delaware |
| YSI XIII GP LLC |
| Delaware |
| YSI XIII LP |
| Delaware |
| YSI XIII LP LLC |
| Delaware |
| YSI XIV GP LLC |
| Delaware |
| Subsidiary |
| Jurisdiction of Organization |
| YSI XIV LP |
| Delaware |
| YSI XIV LP LLC |
| Delaware |
| YSI XV LLC |
| Delaware |
| YSI XVI LLC |
| Delaware |
| YSI XVII GP LLC |
| Delaware |
| YSI XVII LP |
| Delaware |
| YSI XVII LP LLC |
| Delaware |
| YSI XX GP LLC |
| Delaware |
| YSI XX LP |
| Delaware |
| YSI XX LP LLC |
| Delaware |
| YSI XXI LLC |
| Delaware |
| YSI XXII LLC |
| Delaware |
| YSI XXIII LLC |
| Delaware |
| YSI XXIV GP LLC |
| Delaware |
| YSI XXIV LP LLC |
| Delaware |
| YSI XXIX GP LLC |
| Delaware |
| YSI XXIX LP |
| Delaware |
| YSI XXIX LP LLC |
| Delaware |
| YSI XXV GP LLC |
| Delaware |
| YSI XXV LP |
| Delaware |
| YSI XXV LP LLC |
| Delaware |
| YSI XXVI GP LLC |
| Delaware |
| YSI XXVI LP |
| Delaware |
| YSI XXVI LP LLC |
| Delaware |
| YSI XXVII GP LLC |
| Delaware |
| YSI XXVII LP |
| Delaware |
| YSI XXVII LP LLC |
| Delaware |
| YSI XXVIII GP LLC |
| Delaware |
| YSI XXVIII LP |
| Delaware |
| YSI XXVIII LP LLC |
| Delaware |
| YSI XXX LLC |
| Delaware |
| YSI XXXI LLC |
| Delaware |
| YSI XXXII LLC |
| Delaware |
| YSI XXXIII LLC |
| Delaware |
| YSI XXXIIIA LLC |
| Delaware |
| YSI XXXIV LLC |
| Delaware |
| YSI XXXV LLC |
| Delaware |
| YSI XXXVII LLC |
| Delaware |
| YSI XXXVIII LLC |
| Delaware |
| YSI XXXIX LLC |
| Delaware |
| YSI XXXX LLC |
| Delaware |
| YSI XXXXI LLC |
| Delaware |
| YSI XXXXII LLC |
| Delaware |
| YSI XXXXIII LLC |
| Delaware |
| YSI XXXXIV LLC |
| Delaware |
| YSI XXXXV LLC |
| Delaware |
| YSI XXXXVI LLC |
| Delaware |
| Subsidiary |
| Jurisdiction of Organization |
| YSI XXXXVII LLC |
| Delaware |
| YSI XXXXVIII LLC |
| Delaware |
| YSI XLIX LLC |
| Delaware |
| YSI L LLC |
| Delaware |
| YSI Venture LP LLC |
| Delaware |
| YSI Venture GP LLC |
| Delaware |
| YSI-HART Limited Partnership |
| Delaware |
| YSI HART TRS, Inc. |
| Delaware |
| Storage Asset Management, LLC |
| Delaware |
| Property Guard, LLC |
| Delaware |
| YSI Burke Lake, LLC |
| Delaware |
