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Section 1: 8-K (8-K)

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 


 

FORM 8-K

 

Current Report
Pursuant To Section 13 or 15(d) of the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): April 5, 2017 (April 4, 2017)

 

CUBESMART

CUBESMART, L.P.

(Exact Name Of Registrant As Specified In Charter)

 

Maryland
(CubeSmart)

 

001-32324

 

20-1024732

 

 

 

 

 

Delaware
(CubeSmart, L.P.)

 

000-54462

 

34-1837021

(State or Other Jurisdiction of
Incorporation)

 

(Commission File Number)

 

(IRS Employer Identification Number)

 

5 Old Lancaster Road, Malvern, Pennsylvania 19355

(Address of Principal Executive Offices)

 

(610) 535-5000

(Registrant’s telephone number, including area code)

 

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

o    Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o    Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o    Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o    Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 



 

Item 1.01 Entry into a Material Definitive Agreement.

 

On April 4, 2017, CubeSmart, L.P. (the “Operating Partnership”) and CubeSmart (the “Company”) completed the issuance and sale of $50.0 million in aggregate principal amount of the Operating Partnership’s 4.375% senior notes due December 15, 2023 (the “2023 Notes”) and of $50.0 million in aggregate principal amount of the Operating Partnership’s 4.000% senior notes due November 15, 2025 (the “2025 Notes” and, together with the 2023 Notes, the “Notes”) and the Company’s related full and unconditional guarantees of the payment of principal, the make-whole premium, if any, and interest on the Notes (collectively, the “Guarantees”).

 

The net proceeds to the Operating Partnership from the sale of the Notes, after deducting the underwriters’ discount and estimated transaction expenses payable by the Company, are approximately $102.3 million. The Operating Partnership intends to use the net proceeds from this offering to repay all of the outstanding indebtedness incurred under the unsecured revolving portion of the Company’s credit facility maturing in 2020 and for working capital and other general corporate purposes, which may include repayment or repurchase of other indebtedness.

 

The 2023 Notes form part of the same series as the Operating Partnership’s outstanding 4.375% senior notes due December 15, 2023 (the “Initial 2023 Notes” and, together with the 2023 Notes, the “Series 2023 Notes”), and following the issuance and sale of the 2023 Notes on April 4, 2017, $300.0 million aggregate principal amount of Series 2023 Notes are outstanding.  The 2023 Notes have the same CUSIP number and trade interchangeably with the Initial 2023 Notes.

 

The 2025 Notes form part of the same series as the Operating Partnership’s outstanding 4.000% senior notes due November 15, 2025 (the “Initial 2025 Notes” and, together with the 2025 Notes, the “Series 2025 Notes”), and following the issuance and sale of the 2025 Notes on April 4, 2017, $300.0 million aggregate principal amount of Series 2025 Notes are outstanding.  The 2025 Notes have the same CUSIP number and trade interchangeably with the Initial 2025 Notes.

 

The 2023 Notes accrue interest at the rate of 4.375% per annum, with interest payable in cash semi-annually in arrears on each June 15 and December 15.  The 2023 Notes accrue interest from and including December 15, 2016, and will be payable beginning June 15, 2017.  The 2025 Notes accrue interest at the rate of 4.000% per annum, with interest payable in cash semi-annually in arrears on each May 15 and November 15.  The 2025 Notes accrue interest from and including November 15, 2016, and will be payable beginning May 15, 2017.

 

The material terms of the Notes and the Guarantees are described in a prospectus supplement, dated March 30, 2017, as filed with the Securities and Exchange Commission (the “Commission”) on April 3, 2017 pursuant to Rule 424(b)(5) of the Securities Act of 1933, as amended (the “Securities Act”), which relates to the offer and sale of the Notes and supplements the Company’s and the Operating Partnership’s prospectus, as filed with the Commission on March 17, 2017, contained in the Company’s and the Operating Partnership’s registration statement on Form S-3ASR (File No. 333-216768) under the Securities Act.

 

The Initial 2023 Notes were issued under the indenture, dated as of September 16, 2011 (the “Indenture”), as supplemented by the Second Supplemental Indenture, dated as of December 17, 2013 (the “Second Supplemental Indenture”), among the Company, the Operating Partnership and U.S. Bank National Association, as trustee (the “Trustee”).  The 2023 Notes were issued under the Indenture, as supplemented by the Second Supplemental Indenture and the Fifth Supplemental Indenture, dated as of April 4, 2017

 

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(the “Fifth Supplemental Indenture”), among the Company, the Operating Partnership and the Trustee. A copy of the form of 2023 Note and a copy of the form of Guarantee with respect to the 2023 Note are filed herewith as Exhibits 4.1 and 4.2, respectively, and incorporated into this Item 1.01 by reference.

 

The Initial 2025 Notes were issued under the Indenture, as supplemented by the Third Supplemental Indenture, dated as of October 26, 2015 (the “Third Supplemental Indenture”), among the Company, the Operating Partnership and the Trustee.  The 2025 Notes were issued under the Indenture, as supplemented by the Third Supplemental Indenture and the Fifth Supplemental Indenture. A copy of the form of 2025 Note and a copy of the form of Guarantee with respect to the 2025 Note are filed herewith as Exhibits 4.3 and 4.4, respectively, and incorporated into this Item 1.01 by reference.

 

The Indenture previously was filed with the Commission on September 16, 2011, as Exhibit 4.5 to the Company’s and the Operating Partnership’s registration statement on Form S-3 (File No. 333-176885) under the Securities Act, and is incorporated into this Item 1.01 by reference. The Second Supplemental Indenture previously was filed with the Commission as Exhibit 4.1 to a Current Report on Form 8-K filed with the Commission on December 17, 2013 and is incorporated into this Item 1.01 by reference.  The Third Supplemental Indenture previously was filed with the Commission as Exhibit 4.1 to a Current Report on Form 8-K filed with the Commission on October 26, 2015 and is incorporated into this Item 1.01 by reference.  The Fifth Supplemental Indenture is being filed with the Commission as Exhibit 4.5 to this Current Report on Form 8-K and is incorporated into this Item 1.01 by reference.

 

The foregoing is not a complete description of the Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture, the Fifth Supplemental Indenture, the Notes and the Guarantees and is qualified in its entirety by reference to the full text of those documents, each of which is incorporated herein by reference.

 

In connection with the foregoing, the Company and the Operating Partnership are filing as Exhibit 5.1 to this Current Report on Form 8-K the opinion of their counsel with respect to the validity of the Notes and the Guarantees.

 

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of the Registrant.

 

The information provided in Item 1.01 of this Current Report on Form 8-K pertaining to the Notes and the Guarantees is incorporated by reference into this Item 2.03.

 

Item 9.01 Financial Statements and Exhibits.

 

Exhibit
Number

 

Description

 

 

 

4.1

 

Form of $50 million aggregate principal amount of 4.375% senior note due December 15, 2023.

 

 

 

4.2

 

Form of CubeSmart Guarantee with respect to 2023 Notes (included in Exhibit 4.1).

 

 

 

4.3

 

Form of $50 million aggregate principal amount of 4.000% senior note due November 15, 2025.

 

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4.4

 

Form of CubeSmart Guarantee with respect to 2053 Notes (included in Exhibit 4.3).

 

 

 

4.5

 

Fifth Supplemental Indenture, dated as of April 4, 2017, among CubeSmart, CubeSmart, L.P. and U.S. Bank National Association.

 

 

 

4.6*

 

Indenture, dated as of September 16, 2011, among CubeSmart, CubeSmart, L.P. and U.S. Bank National Association, incorporated by reference to Exhibit 4.5 to the Company’s Registration Statement on Form S-3, filed with the Commission on September 16, 2011.

 

 

 

4.7*

 

Second Supplemental Indenture, dated as of December 17, 2013, among CubeSmart, CubeSmart, L.P. and U.S. Bank National Association, incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K, filed with the Commission on December 17, 2013.

 

 

 

4.8*

 

Third Supplemental Indenture, dated as of October 26, 2015, among CubeSmart, CubeSmart, L.P. and U.S. Bank National Association, incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K, filed with the Commission on October 26, 2015.

 

 

 

5.1

 

Opinion of Pepper Hamilton LLP as to the legality of the Notes.

 

 

 

23.1

 

Consent of Pepper Hamilton LLP (included in Exhibit 5.1 and incorporated herein by reference).

 


* Incorporated herein by reference as above indicated.

 

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Signatures

 

Pursuant to the requirements of the Securities Exchange Act of 1934, each of the registrants has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

CUBESMART

 

 

 

 

Date: April 5, 2017

By:

/s/ Jeffrey P. Foster

 

 

Name:

Jeffrey P. Foster

 

 

Title:

Senior Vice President, Chief Legal

 

 

Officer & Secretary

 

 

 

 

 

 

 

CUBESMART, L.P.

 

 

 

 

 

By:

CubeSmart, its general partner

 

 

 

 

 

 

Date: April 5, 2017

By:

/s/ Jeffrey P. Foster

 

 

Name:

Jeffrey P. Foster

 

 

Title:

Senior Vice President, Chief Legal

 

 

Officer & Secretary

 

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EXHIBIT INDEX

 

Exhibit
Number

 

Description

 

 

 

4.1

 

Form of $50 million aggregate principal amount of 4.375% senior note due December 15, 2023.

 

 

 

4.2

 

Form of CubeSmart Guarantee with respect to 2023 Notes (included in Exhibit 4.1).

 

 

 

4.3

 

Form of $50 million aggregate principal amount of 4.000% senior note due November 15, 2025.

 

 

 

4.4

 

Form of CubeSmart Guarantee with respect to 2053 Notes (included in Exhibit 4.3).

 

 

 

4.5

 

Fifth Supplemental Indenture, dated as of April 4, 2017, among CubeSmart, CubeSmart, L.P. and U.S. Bank National Association.

 

 

 

5.1

 

Opinion of Pepper Hamilton LLP as to the legality of the Notes.

 

 

 

23.1

 

Consent of Pepper Hamilton LLP (included in Exhibit 5.1 and incorporated herein by reference).

 

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Section 2: EX-4.1 (EX-4.1)

Exhibit 4.1

 

FORM OF NOTE

 

[Face of Note]

 

CUSIP # 22966R AB2

 

4.375% Senior Note due 2023

 

No.  1

 

$50,000,000

 

CUBESMART, L.P.

 

promises to pay to CEDE & CO. or its registered assigns, the principal sum of FIFTY MILLION Dollars on December 15, 2023.

 

Interest Payment Dates: June 15 and December 15

 

Record Dates: June 1 and December 1

 

Dated: April 4, 2017

 

THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.

 

UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

 

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IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed as of the day and year first written above.

 

 

[SEAL]

CUBESMART, L.P.

 

 

 

By: CUBESMART,

 

        as General Partner

 

 

 

 

By:

/s/

Timothy M. Martin

 

 

Name:

Timothy M. Martin

 

 

Title:

Chief Financial Officer

 

 

 

 

Attest:

 

 

 

 

 

By:

/s/ Jeffrey P. Foster

 

 

Name:

Jeffrey P. Foster

 

 

Title:

Senior Vice President,

 

 

 

Chief Legal Officer & Secretary

 

 

 

CERTIFICATE OF AUTHENTICATION

 

This is one of the Securities of the series designated therein described in the within-mentioned Indenture.

 

 

U.S. BANK NATIONAL ASSOCIATION,

 

as Trustee

 

 

 

 

 

By:

/s/ George J. Rayzis

 

 

Authorized Signatory

 

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[Back of Note]

 

4.375% Senior Notes due 2023

 

Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

 

(1) Interest. The Notes will bear interest from, and including, December 15, 2016, or from, and including, the most recent interest payment date to which interest has been paid or duly provided for, to, but excluding, the applicable interest payment date or Maturity Date of the Notes, as applicable, at a rate of 4.375% per annum, payable semi-annually in arrears on June 15 and December 15 of each year, commencing June 15, 2017. The Issuer will pay interest to the Person in whose name a Note is registered at the close of business on June 1 or December 1 next preceding the interest payment date. The Issuer will compute interest on the basis of a 360-day year consisting of twelve 30-day months. If any interest payment date or Maturity Date falls on a day that is not a Business Day, the required payment of principal, Make-Whole Premium (as defined below), if any, or interest will be made on the next succeeding Business Day as if made on the date on which such payment was due, and no interest will accrue on such payment for the period from and after such interest payment date or Maturity Date, as the case may be, to the date of such payment on the next succeeding Business Day.

 

(2) Place of Payment for Principal and Interest.  The principal of and interest on the Notes will be payable at the office or agency of the Issuer maintained for that purpose, pursuant to the Indenture, in the City of New York, which initially shall be the corporate trust office of the Trustee; provided, however, that at the option of the Issuer, such payment of principal, Make-Whole Premium, if any, or interest may be made by check mailed to the person entitled thereto as provided in the Indenture.

 

(3) Paying Agent and Security Registrar. Initially, U.S. Bank National Association, the Trustee under the Indenture, will act as Paying Agent and Security Registrar. The Issuer may change any Paying Agent or Security Registrar without notice to any Holder. The Issuer or any of its Subsidiaries may act in any such capacity.

 

(4) Sinking Funds. The Notes are not subject to repayment at the option of the Holder thereof. In addition, the Notes are not entitled to the benefit of, and are not subject to, any sinking fund.

 

(5) Indenture. The Issuer issued the Notes under an indenture dated as of September 16, 2011 (the “Base Indenture”), as amended by the Second Supplemental Indenture, dated as of December 17, 2013 (the “Second Supplemental Indenture”) and the Fifth Supplemental Indenture, dated as of April 4, 2017 (the “Fifth Supplemental Indenture” and, together with the Base Indenture and the Second Supplemental Indenture and as the Base Indenture, the Second Supplemental Indenture and the Fifth Supplemental Indenture may be further amended and supplemented from time to time, the “Indenture”), among the Issuer, the Guarantors named therein and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb). The Notes are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Notes are unsecured obligations of the Issuer.

 

(6) Optional Redemption. The Notes may be redeemed, at the Issuer’s option in whole or, from time to time, in in part, prior to the Maturity Date as follows:

 

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(a)   If the Notes are redeemed before September 15, 2023, the Notes will be redeemed at a Redemption Price equal to the greater of:

 

(i) 100% of the principal amount of the Notes then outstanding to be redeemed; and

 

(ii) the sum, as set forth in an Officers’ Certificate delivered to the Trustee, of the present values of the remaining scheduled payments of principal of, and interest on, the Notes to be redeemed (not including any portion of such payments of interest accrued to the Redemption Date) discounted to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the applicable Treasury Rate plus 30 basis points (the “Make-Whole Premium”);

 

plus any accrued and unpaid interest on the principal amount of the Notes being redeemed to, but not including, the Redemption Date.

 

(b)   If the Notes are redeemed on or after September 15, 2023, the Notes will be redeemed at a Redemption Price equal to 100% of the principal amount of the Notes then outstanding being redeemed, plus accrued and unpaid interest on the principal amount of the Notes being redeemed to, but not including, the Redemption Date.

 

(c)   If any Redemption Date falls on a day that is not a Business Day, the required payment of principal, Make-Whole Premium, if any, or interest on the Notes to be redeemed will be made on the next succeeding Business Day as if made on the date on which such payment was due, and no interest will accrue on such payment for the period from and after such Redemption Date, as the case may be, to the date of such payment on the next succeeding Business Day; provided, however, that with respect to a Redemption Date, if the next such succeeding Business Day falls on a day in the next succeeding calendar year with respect to a Redemption Date, the required payment of principal, Make-Whole Premium, if any, or interest on the Notes to be redeemed shall be made on the Business Day immediately preceding such Redemption Date on which payment was due.

 

(d)   If notice has been given in the manner provided in Section 1104 of the Indenture and funds for the redemption of the Note or any part thereof called for redemption will have been made available on the Redemption Date, the Notes to be redeemed, or such part thereof, will cease to accrue interest from and after the Redemption Date referred to in such notice and the only right of the Holder will be to receive payment of the Redemption Price.

 

(7) Notice of Redemption. Notice of redemption shall be given in the manner provided in Section 106 and Section 1104 of the Indenture not later than 30 days and not earlier than 60 days prior to the Redemption Date, to each Holder of Notes to be redeemed.

 

All notices of redemption shall state:

 

(1) the Redemption Date;

 

(2) the Redemption Price;

 

(3) if less than all Notes then outstanding are to be redeemed, the identification (and, in the case of partial redemption, the respective principal amounts) of the particular Notes to be redeemed, including the Identifying Number of such Notes;

 

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(4) in case any Note is to be redeemed in part only, the notice which relates to such Note shall state that on and after the Redemption Date, upon surrender of such Note, the Holder shall receive, without charge, a new Note or Notes of authorized denominations for the principal amount thereof remaining unredeemed;

 

(5) that on the Redemption Date the Redemption Price shall become due and payable upon each such Note or portion thereof, and that interest or original issue discount thereon, if any, shall cease to accrue on and after said date; and

 

(6) the place or places where such Notes are to be surrendered for payment of the Redemption Price.

 

Notice of redemption of Notes to be redeemed at the election of the Issuer shall be given by the Issuer or, at the Issuer’s request, by the Trustee for such Notes in the name and at the expense of the Issuer.

 

(8) Denominations, Transfer and Exchange. The Notes are in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Security Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuer may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Issuer need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. The Issuer shall not be required (i) to issue, register the transfer of or exchange the Notes during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of the Notes selected for redemption under Section 1104 of the Indenture and ending at the close of business on the day of the mailing of the relevant notice of redemption, or (ii) to register the transfer of or exchange any Notes so selected for redemption as a whole or in part, except the unredeemed portion of any Notes being redeemed in part.

 

(9) Persons Deemed Owners. Prior to due presentment of a Note for registration of transfer, the Issuer, the Guarantors, the Trustee for such Note and any agent of the Issuer, any of the Guarantors or such Trustee may treat the Person in whose name any such Note is registered as the owner of such Note for the purpose of receiving payment of principal of (and premium, if any) and (subject to Section 307 of the Indenture) interest, if any, on such Note and for all other purposes whatsoever, whether or not such Note be overdue, and none of the Issuer, the Guarantors, such Trustee or any agent of the Issuer, any of the Guarantors or such Trustee shall be affected by notice to the contrary.

 

None of the Issuer, the Guarantors, the Trustee, any Paying Agent or the Security Registrar shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.

 

(10) Amendment, Supplement and Waiver. Subject to certain exceptions, the Indenture, the Guarantee or the Notes may be amended or supplemented with the consent of the Holders of at least a majority in principal amount of the Notes then outstanding affected by such amendment or supplemental indenture voting as a single class, and any existing Default or Event of Default or compliance with any provision of the Indenture, the Guarantee or the Notes may be waived with the consent of the Holders of a majority in principal amount of the then Outstanding Securities affected thereby voting as a single class. Without the consent of any Holder of a Note, the Indenture, the Guarantee or the Notes may be amended or supplemented to, among other things, cure any ambiguity, defect or inconsistency; to provide for uncertificated Notes in addition to or in place of certificated Notes; to provide for the assumption to a successor of the Issuer’s obligations to Holders of Notes;

 

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add additional Guarantees with respect to the Notes; secure the Notes; to make any other change that would provide any additional rights or benefits to the Holders of Notes or that does not adversely affect the legal rights under the Indenture of any such Holder; or to comply with requirements of the Commission in order to effect or maintain the qualification of the applicable Indenture under the Trust Indenture Act.

 

(11) Defaults and Remedies. Events of Default with respect to the Notes include: (1) default in the payment of any installment of interest upon any Note when it becomes due and payable, and continuance of such default for a period of 30 days; or (2) default in the payment of the principal of (or premium, if any, on) any Note at its Maturity; or (3) default in the performance of, or breach of, any covenant or warranty of the Issuer or any of the Guarantors in respect of any Note and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Issuer by the Trustee for the Notes or to the Issuer and such Trustee by the Holders of at least 25% in principal amount of the Notes then outstanding a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or (4) a default under any bond, debenture, note or other evidence of indebtedness of the Issuer and/or any of the Guarantors or under any mortgage, indenture or other instrument of the Issuer or any of the Guarantors (including a default with respect to Securities of any series other than the Notes) under which there may be issued or by which there may be secured any indebtedness of the Issuer and/or any of the Guarantors (or by any of their respective Subsidiaries, the repayment of which the Issuer or any of the Guarantors have guaranteed or for which the Issuer or any of the Guarantors are directly responsible or liable as obligor or guarantor), whether such indebtedness now exists or shall hereafter be created, which default shall constitute a failure to pay an aggregate principal amount exceeding $25,000,000 of such indebtedness when due and payable which shall continue after the expiration of any applicable grace period with respect thereto or shall have resulted in such indebtedness in an aggregate principal amount exceeding $25,000,000 becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, without such indebtedness having been discharged, or such acceleration having been rescinded or annulled, within a period of 10 days after there shall have been given, by registered or certified mail, to the Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at least 25% in principal amount of the Notes then outstanding a written notice specifying such default and requiring the Issuer or such Guarantors, as the case may be, to cause such indebtedness to be discharged or cause such acceleration to be rescinded or annulled and stating that such notice is a “Notice of Default” hereunder; or (5) the Issuer or any Guarantor shall commence any case or proceeding seeking to have an order for relief entered on its behalf as debtor or to adjudicate it as bankrupt or insolvent or seeking reorganization, liquidation, dissolution, winding-up, arrangement, composition or readjustment of its debts or any other relief under any bankruptcy, insolvency, reorganization, liquidation, dissolution, arrangement, composition, readjustment of debt or other similar act or law of any jurisdiction, domestic or foreign, now or hereafter existing; or the Issuer or any Guarantor shall apply for a receiver, custodian or trustee (other than any trustee appointed as a mortgagee or secured party in connection with the issuance of indebtedness for borrowed money of the Issuer) of it or for all or a substantial part of its property; or the Issuer or any Guarantor shall make a general assignment for the benefit of creditors; or the Issuer or any Guarantor shall take any corporate action in furtherance of any of the foregoing; or (6) an involuntary case or other proceeding shall be commenced against the Issuer or any Guarantor with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect seeking the appointment of a trustee, receiver, liquidator, custodian or similar official of the Issuer or any Guarantor or any substantial part of their respective property; and such case or other proceeding (A) results in the entry of an order for relief or a similar order against the Issuer or any Guarantor, or (B) shall continue unstayed and in effect for a period of 60 consecutive days; or (7) except as otherwise permitted herein, any Guarantee of the Securities of any series shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force

 

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and effect, or any Guarantor, or any person acting on behalf of any such Guarantor, shall deny or disaffirm its obligations under its Guarantee with respect to the Notes.

 

If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the Notes then outstanding may declare the entire principal amount of the Notes to be due and payable. Subject to certain limitations, the Holders of a majority in principal amount of the Notes then outstanding may direct the Trustee in its exercise of any trust or power. Subject to certain exceptions, the Holders of a majority in aggregate principal amount of the Notes then outstanding by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default or Event of Default and its consequences under the Indenture except a continuing Default or Event of Default in the payment of principal of, premium, if any, or interest on the Notes.

 

(12) No Recourse Against Others. No trustee, officer, employee or stockholder of CubeSmart or any of its Subsidiaries, as such, will have any liability for any obligations of CubeSmart or any of its Subsidiaries under the Notes or the Indenture based on, in respect of, or by reason of such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The foregoing waiver and release are an integral part of the consideration for the issuance of the Notes.

 

(13) Authentication. No Note shall be entitled to any benefit under the Indenture or be valid or obligatory for any purpose unless there appears on such Note the certificate of authentication manually executed by the Trustee for such Note or on its behalf pursuant to Section 614 of the Indenture, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder.

 

(14) CUSIP Numbers. The Issuer in issuing the Notes may use “CUSIP” numbers (if then generally in use) or other identifying numbers (“Identifying Numbers”) and, if so, the Trustee shall use such Identifying Numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such Identifying Numbers either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identifying numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer shall promptly notify the Trustee of any change in the Identifying Numbers.

 

The Issuer will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:

 

CubeSmart, L.P.

c/o CubeSmart

5 Old Lancaster Road

Malvern, PA  19355

Attention:  Jeffrey Foster, Chief Legal Officer

 

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FORM OF NOTATION OF GUARANTEE

 

For value received, the Guarantor (which term includes any successor Person under the Indenture hereinafter referred to) has unconditionally guaranteed to the extent set forth in, and subject to the provisions of, an indenture dated as of September 16, 2011 (the “Base Indenture “), as amended by the Second Supplemental Indenture, dated as of December 17, 2013 (the “Second Supplemental Indenture”) and the Fifth Supplemental Indenture, dated as of April 4, 2017 (the “Fifth Supplemental Indenture” and, together with the Base Indenture and the Second Supplemental Indenture and as the Base Indenture, the Second Supplemental Indenture and the Fifth Supplemental Indenture may be further amended and supplemented from time to time, the “Indenture”), among CubeSmart, L.P. (the “Issuer”), the Guarantor named therein and U.S. Bank National Association, as trustee (the “Trustee “), providing for the issuance of 4.375% Senior Notes due 2023, the due and punctual payment of the principal of and interest on the Notes to which this notation is affixed and all other amounts due and payable under the Indenture and the Notes to which this notation is affixed by the Issuer.

 

The obligations of such Guarantor to the Holders of Notes to which this notation is affixed and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article Fourteen of the Indenture and reference is hereby made to the Indenture for the precise terms of the Guarantee.

 

 

 

CUBESMART

 

 

 

 

 

By:

/s/ Timothy M. Martin

 

 

Name:

Timothy M. Martin

 

 

Title:

Chief Financial Officer

 

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Assignment Form

 

To assign this Note, fill in the form below:

 

 

(I) or (we) assign and transfer this Note to:

 

 

(Insert assignee’s legal name)

 

 

 

(Insert assignee’s Soc. Sec. or Tax I.D. No.)

 

 

 

 

 

(Print or type assignee’s name, address and zip code)

 

and irrevocably appoint                                                                                                  to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.

 

Date:

 

 

 

 

 

Your Signature:

 

 

(Sign exactly as your name appears on the face of this Note)

 

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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY

 

The following exchanges of a part of this Global Security for an interest in another Global Security or for a definitive security, or exchanges of a part of another Global Security or definitive security for an interest in this Global Security, have been made:

 

Date of exchange

 

Amount of
decrease in
principal amount
of this Global
Security

 

Amount of increase
in principal
amount of this
Global Security

 

Principal amount
of this Global
Security following
such decrease
(or increase)

 

Signature of
authorized
officer of Trustee
or Custodian

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Section 3: EX-4.3 (EX-4.3)

Exhibit 4.3

 

FORM OF NOTE

 

[Face of Note]

 

CUSIP # 22966R ACO

 

4.000% Senior Note due 2025

 

No.  1

 

$50,000,000

 

CUBESMART, L.P.

 

promises to pay to CEDE & CO. or its registered assigns, the principal sum of FIFTY MILLION Dollars on November 15, 2025.

 

Interest Payment Dates: May 15 and November 15

 

Record Dates: May 1 and November 1

 

Dated: April 4, 2017

 

THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.

 

UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

 

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IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed as of the day and year first written above.

 

 

[SEAL]

CUBESMART, L.P.

 

 

 

By: CUBESMART,

 

as General Partner

 

 

 

By:

/s/ Timothy M. Martin

 

 

Name:

Timothy M. Martin

 

 

Title:

Chief Financial Officer and Treasurer

 

 

 

 

Attest:

 

 

 

 

 

By:

/s/ Jeffrey P. Foster

 

 

Name:

Jeffrey P. Foster

 

 

Title:

Senior Vice President,

 

 

Chief Legal Officer & Secretary

 

 

 

CERTIFICATE OF AUTHENTICATION

 

This is one of the Securities of the series designated therein described in the within-mentioned Indenture.

 

 

U.S. BANK NATIONAL ASSOCIATION,

 

as Trustee

 

 

 

 

 

By:

/s/ George J. Rayzis

 

 

Authorized Signatory

 

 

 

[Signature Page to Note]

 



 

[Back of Note]

 

4.000% Senior Notes due 2025

 

Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

 

(1) Interest. The Notes will bear interest from, and including, November 15, 2016, or from, and including, the most recent interest payment date to which interest has been paid or duly provided for, to, but excluding, the applicable interest payment date or Maturity Date of the Notes, as applicable, at a rate of 4.000% per annum, payable semi-annually in arrears on May 15 and November 15 of each year, commencing May 15, 2017. The Issuer will pay interest to the Person in whose name a Note is registered at the close of business on May 1 or November 1 next preceding the interest payment date. The Issuer will compute interest on the basis of a 360-day year consisting of twelve 30-day months. If any interest payment date or Maturity Date falls on a day that is not a Business Day, the required payment of principal, Make-Whole Premium (as defined below), if any, or interest will be made on the next succeeding Business Day as if made on the date on which such payment was due, and no interest will accrue on such payment for the period from and after such interest payment date or Maturity Date, as the case may be, to the date of such payment on the next succeeding Business Day.

 

(2) Place of Payment for Principal and Interest.  The principal of and interest on the Notes will be payable at the office or agency of the Issuer maintained for that purpose, pursuant to the Indenture, in the City of New York, which initially shall be the corporate trust office of the Trustee; provided, however, that at the option of the Issuer, such payment of principal, Make-Whole Premium, if any, or interest may be made by check mailed to the person entitled thereto as provided in the Indenture.

 

(3) Paying Agent and Security Registrar. Initially, U.S. Bank National Association, the Trustee under the Indenture, will act as Paying Agent and Security Registrar. The Issuer may change any Paying Agent or Security Registrar without notice to any Holder. The Issuer or any of its Subsidiaries may act in any such capacity.

 

(4) Sinking Funds. The Notes are not subject to repayment at the option of the Holder thereof. In addition, the Notes are not entitled to the benefit of, and are not subject to, any sinking fund.

 

(5) Indenture. The Issuer issued the Notes under an indenture, dated as of September 16, 2011 (the “Base Indenture”), as amended by the First Supplemental Indenture, dated as of June 26, 2012 (the “First Supplemental Indenture”), the Second Supplemental Indenture, dated as of December 17, 2013 (the “Second Supplemental Indenture”), the Third Supplemental Indenture, dated as of October 26, 2015 (the “Third Supplemental Indenture”) and the Fifth Supplemental Indenture, dated as of April 4, 2017 (the “Fifth Supplemental Indenture” and, together with the Base Indenture, the First Supplemental Indenture, the Second Supplemental Indenture and the Third Supplemental Indenture and as the Base Indenture, the First Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture and the Fifth Supplemental Indenture may be further amended and supplemented from time to time, the “Indenture”), among the Issuer, the Guarantor named therein and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb). The Notes are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Notes are unsecured obligations of the Issuer.

 

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(6) Optional Redemption. The Notes may be redeemed, at the Issuer’s option in whole or, from time to time, in in part, prior to the Maturity Date as follows:

 

(a)   If the Notes are redeemed before August 15, 2025 (the “Par Call Date”), the Notes will be redeemed at a Redemption Price equal to the greater of:

 

(i) 100% of the principal amount of the Notes then outstanding to be redeemed; and

 

(ii) the sum, as set forth in an Officers’ Certificate delivered to the Trustee, of the present values of the remaining scheduled payments of principal of, and interest on, the Notes to be redeemed (not including any portion of such payments of interest accrued to the Redemption Date), assuming such Notes matured on the Par Call Date, discounted to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the applicable Treasury Rate plus 30 basis points (the “Make-Whole Premium”);

 

plus any accrued and unpaid interest on the principal amount of the Notes being redeemed to, but not including, the Redemption Date.

 

(b)   If the Notes are redeemed on or after the Par Call Date, the Notes will be redeemed at a Redemption Price equal to 100% of the principal amount of the Notes then outstanding being redeemed, plus accrued and unpaid interest on the principal amount of the Notes being redeemed to, but not including, the Redemption Date.

 

(c)   If any Redemption Date falls on a day that is not a Business Day, the required payment of principal, Make-Whole Premium, if any, or interest on the Notes to be redeemed will be made on the next succeeding Business Day as if made on the date on which such payment was due, and no interest will accrue on such payment for the period from and after such Redemption Date, as the case may be, to the date of such payment on the next succeeding Business Day; provided, however, that with respect to a Redemption Date, if the next such succeeding Business Day falls on a day in the next succeeding calendar year with respect to a Redemption Date, the required payment of principal, Make-Whole Premium, if any, or interest on the Notes to be redeemed shall be made on the Business Day immediately preceding such Redemption Date on which payment was due.

 

(d)   If notice has been given in the manner provided in Section 1104 of the Indenture and funds for the redemption of the Note or any part thereof called for redemption will have been made available on the Redemption Date, the Notes to be redeemed, or such part thereof, will cease to accrue interest from and after the Redemption Date referred to in such notice and the only right of the Holder will be to receive payment of the Redemption Price.

 

(7) Notice of Redemption. Notice of redemption shall be given in the manner provided in Section 106 and Section 1104 of the Indenture not later than 15 days and not earlier than 60 days prior to the Redemption Date, to each Holder of Notes to be redeemed.

 

All notices of redemption shall state:

 

(1) the Redemption Date;

 

(2) the Redemption Price;

 

A-4



 

(3) if less than all Notes then outstanding are to be redeemed, the identification (and, in the case of partial redemption, the respective principal amounts) of the particular Notes to be redeemed, including the Identifying Number of such Notes;

 

(4) in case any Note is to be redeemed in part only, the notice which relates to such Note shall state that on and after the Redemption Date, upon surrender of such Note, the Holder shall receive, without charge, a new Note or Notes of authorized denominations for the principal amount thereof remaining unredeemed;

 

(5) that on the Redemption Date the Redemption Price shall become due and payable upon each such Note or portion thereof, and that interest or original issue discount thereon, if any, shall cease to accrue on and after said date; and

 

(6) the place or places where such Notes are to be surrendered for payment of the Redemption Price.

 

Notice of redemption of Notes to be redeemed at the election of the Issuer shall be given by the Issuer or, at the Issuer’s request, by the Trustee for such Notes in the name and at the expense of the Issuer.

 

(8) Denominations, Transfer and Exchange. The Notes are in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Security Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuer may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Issuer need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. The Issuer shall not be required (i) to issue, register the transfer of or exchange the Notes during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of the Notes selected for redemption under Section 1104 of the Indenture and ending at the close of business on the day of the mailing of the relevant notice of redemption, or (ii) to register the transfer of or exchange any Notes so selected for redemption as a whole or in part, except the unredeemed portion of any Notes being redeemed in part.

 

(9) Persons Deemed Owners. Prior to due presentment of a Note for registration of transfer, the Issuer, the Guarantors, the Trustee for such Note and any agent of the Issuer, any of the Guarantors or such Trustee may treat the Person in whose name any such Note is registered as the owner of such Note for the purpose of receiving payment of principal of (and premium, if any) and (subject to Section 307 of the Indenture) interest, if any, on such Note and for all other purposes whatsoever, whether or not such Note be overdue, and none of the Issuer, the Guarantors, such Trustee or any agent of the Issuer, any of the Guarantors or such Trustee shall be affected by notice to the contrary.

 

None of the Issuer, the Guarantors, the Trustee, any Paying Agent or the Security Registrar shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.

 

(10) Amendment, Supplement and Waiver. Subject to certain exceptions, the Indenture, the Guarantee or the Notes may be amended or supplemented with the consent of the Holders of at least a majority in principal amount of the Notes then outstanding affected by such amendment or supplemental indenture voting as a single class, and any existing Default or Event of Default or compliance with any provision of the Indenture, the Guarantee or the Notes may be waived with the consent of the Holders of a majority in principal amount of the

 

A-5



 

then Outstanding Securities affected thereby voting as a single class. Without the consent of any Holder of a Note, the Indenture, the Guarantee or the Notes may be amended or supplemented to, among other things, cure any ambiguity, defect or inconsistency; to provide for uncertificated Notes in addition to or in place of certificated Notes; to provide for the assumption to a successor of the Issuer’s obligations to Holders of Notes; add additional Guarantees with respect to the Notes; secure the Notes; to make any other change that would provide any additional rights or benefits to the Holders of Notes or that does not adversely affect the legal rights under the Indenture of any such Holder; or to comply with requirements of the Commission in order to effect or maintain the qualification of the applicable Indenture under the Trust Indenture Act.

 

(11) Defaults and Remedies. Events of Default with respect to the Notes include: (1) default in the payment of any installment of interest upon any Note when it becomes due and payable, and continuance of such default for a period of 30 days; or (2) default in the payment of the principal of (or premium, if any, on) any Note at its Maturity; or (3) default in the performance of, or breach of, any covenant or warranty of the Issuer or any of the Guarantors in respect of any Note and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Issuer by the Trustee for the Notes or to the Issuer and such Trustee by the Holders of at least 25% in principal amount of the Notes then outstanding a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or (4) a default under any bond, debenture, note or other evidence of indebtedness of the Issuer and/or any of the Guarantors or under any mortgage, indenture or other instrument of the Issuer or any of the Guarantors (including a default with respect to Securities of any series other than the Notes) under which there may be issued or by which there may be secured any indebtedness of the Issuer and/or any of the Guarantors (or by any of their respective Subsidiaries, the repayment of which the Issuer or any of the Guarantors have guaranteed or for which the Issuer or any of the Guarantors are directly responsible or liable as obligor or guarantor), whether such indebtedness now exists or shall hereafter be created, which default shall constitute a failure to pay an aggregate principal amount exceeding $25,000,000 of such indebtedness when due and payable which shall continue after the expiration of any applicable grace period with respect thereto or shall have resulted in such indebtedness in an aggregate principal amount exceeding $25,000,000 becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, without such indebtedness having been discharged, or such acceleration having been rescinded or annulled, within a period of 10 days after there shall have been given, by registered or certified mail, to the Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at least 25% in principal amount of the Notes then outstanding a written notice specifying such default and requiring the Issuer or such Guarantors, as the case may be, to cause such indebtedness to be discharged or cause such acceleration to be rescinded or annulled and stating that such notice is a “Notice of Default” hereunder; or (5) the Issuer or any Guarantor shall commence any case or proceeding seeking to have an order for relief entered on its behalf as debtor or to adjudicate it as bankrupt or insolvent or seeking reorganization, liquidation, dissolution, winding-up, arrangement, composition or readjustment of its debts or any other relief under any bankruptcy, insolvency, reorganization, liquidation, dissolution, arrangement, composition, readjustment of debt or other similar act or law of any jurisdiction, domestic or foreign, now or hereafter existing; or the Issuer or any Guarantor shall apply for a receiver, custodian or trustee (other than any trustee appointed as a mortgagee or secured party in connection with the issuance of indebtedness for borrowed money of the Issuer) of it or for all or a substantial part of its property; or the Issuer or any Guarantor shall make a general assignment for the benefit of creditors; or the Issuer or any Guarantor shall take any corporate action in furtherance of any of the foregoing; or (6) an involuntary case or other proceeding shall be commenced against the Issuer or any Guarantor with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect seeking the appointment of a trustee, receiver, liquidator, custodian or similar official of the Issuer or any Guarantor or any substantial part of their respective property; and such case or other proceeding (A) results in the entry of an order for relief or a similar

 

A-6



 

order against the Issuer or any Guarantor, or (B) shall continue unstayed and in effect for a period of 60 consecutive days; or (7) except as otherwise permitted herein, any Guarantee of the Securities of any series shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect, or any Guarantor, or any person acting on behalf of any such Guarantor, shall deny or disaffirm its obligations under its Guarantee with respect to the Notes.

 

If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the Notes then outstanding may declare the entire principal amount of the Notes to be due and payable. Subject to certain limitations, the Holders of a majority in principal amount of the Notes then outstanding may direct the Trustee in its exercise of any trust or power. Subject to certain exceptions, the Holders of a majority in aggregate principal amount of the Notes then outstanding by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default or Event of Default and its consequences under the Indenture except a continuing Default or Event of Default in the payment of principal of, premium, if any, or interest on the Notes.

 

(12) No Recourse Against Others. No trustee, officer, employee or stockholder of CubeSmart or any of its Subsidiaries, as such, will have any liability for any obligations of CubeSmart or any of its Subsidiaries under the Notes or the Indenture based on, in respect of, or by reason of such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The foregoing waiver and release are an integral part of the consideration for the issuance of the Notes.

 

(13) Authentication. No Note shall be entitled to any benefit under the Indenture or be valid or obligatory for any purpose unless there appears on such Note the certificate of authentication manually executed by the Trustee for such Note or on its behalf pursuant to Section 614 of the Indenture, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder.

 

(14) CUSIP Numbers. The Issuer in issuing the Notes may use “CUSIP” numbers (if then generally in use) or other identifying numbers (“Identifying Numbers”) and, if so, the Trustee shall use such Identifying Numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such Identifying Numbers either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identifying numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer shall promptly notify the Trustee of any change in the Identifying Numbers.

 

The Issuer will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:

 

CubeSmart, L.P.

c/o CubeSmart

5 Old Lancaster Road

Malvern, PA 19355

Attention:  Jeffrey Foster, Chief Legal Officer and Secretary

 

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FORM OF NOTATION OF GUARANTEE

 

For value received, the Guarantor (which term includes any successor Person under the Indenture hereinafter referred to) has unconditionally guaranteed to the extent set forth in, and subject to the provisions of, an indenture dated as of September 16, 2011 (the “ Base Indenture”), as amended by the Third Supplemental Indenture, dated as of October 26, 2015 (the “Third Supplemental Indenture”) and the Fifth Supplemental Indenture, dated as of April 4, 2017 (the “Fifth Supplemental Indenture” and, together with the Base Indenture, and the Third Supplemental Indenture and as the Base Indenture, the Third Supplemental Indenture and the Fifth Supplemental Indenture may be further amended and supplemented from time to time, the “Indenture “) among CubeSmart, L.P. (the “Issuer”), the Guarantor named therein and U.S. Bank National Association, as trustee (the “Trustee “), providing for the issuance of 4.000% Senior Notes due 2025, the due and punctual payment of the principal of and interest on the Notes to which this notation is affixed and all other amounts due and payable under the Indenture and the Notes to which this notation is affixed by the Issuer.

 

The obligations of such Guarantor to the Holders of Notes to which this notation is affixed and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article Fourteen of the Indenture and reference is hereby made to the Indenture for the precise terms of the Guarantee.

 

 

CUBESMART

 

 

 

 

 

By:

/s/ Timothy M. Martin

 

 

Name:

Timothy M. Martin

 

 

Title:

Chief Financial Officer and

 

 

 

Treasurer

 

 

 

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Assignment Form

 

To assign this Note, fill in the form below:

 

 

(I) or (we) assign and transfer this Note to:

 

 

(Insert assignee’s legal name)

 

 

 

(Insert assignee’s Soc. Sec. or Tax I.D. No.)

 

 

 

 

 

(Print or type assignee’s name, address and zip code)

 

and irrevocably appoint                                                                                                 to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.

 

Date:

 

 

 

 

 

Your Signature:

 

 

(Sign exactly as your name appears on the face of this Note)

 

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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY

 

The following exchanges of a part of this Global Security for an interest in another Global Security or for a definitive security, or exchanges of a part of another Global Security or definitive security for an interest in this Global Security, have been made:

 

Date of exchange

 

Amount of
decrease in
principal amount
of this Global
Security

 

Amount of increase
in principal
amount of this
Global Security

 

Principal amount
of this Global
Security following
such decrease
(or increase)

 

Signature of
authorized
officer of Trustee
or Custodian

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Section 4: EX-4.5 (EX-4.5)

Exhibit 4.5

 


 

CUBESMART, L.P.,

 

Issuer,

 

and

 

CUBESMART,

 

Parent Guarantor,

 

and

 

U.S. BANK NATIONAL ASSOCIATION

 

Trustee

 


 

Fifth Supplemental Indenture

 

Dated as of April 4, 2017

 

To

 

Indenture

 

Dated as of September 16, 2011

 


 

4.375% SENIOR NOTES DUE 2023

4.000% SENIOR NOTES DUE 2025

 


 



 

FIFTH SUPPLEMENTAL INDENTURE, dated as of April 4, 2017 (the “Fifth Supplemental Indenture”), among CUBESMART, L.P., a limited partnership formed under the laws of Delaware (the “Issuer”), CUBESMART, a real estate investment trust formed under the laws of Maryland and the sole general partner and a limited partner of the Issuer (the “Parent Guarantor”), and U.S. BANK NATIONAL ASSOCIATION, as Trustee (the “Trustee”).

 

RECITALS OF THE ISSUER AND THE PARENT GUARANTOR

 

WHEREAS, the Issuer, the Parent Guarantor and the Trustee are parties to an Indenture dated as of September 16, 2011 (the “Indenture”) relating to the issuance from time to time by the Issuer of its Securities on terms to be specified at the time of issuance;

 

WHEREAS, pursuant to the Indenture and Second Supplemental Indenture dated as of December 17, 2013 (the “Second Supplement”),  the Issuer established and issued a series of Securities designated as the “4.375% Senior Notes due 2023” (the “2023 Notes”) in the initial aggregate principal amount of $250,000,000;

 

WHEREAS, pursuant to the Indenture and Third Supplemental Indenture dated as of October 26, 2015 (the “Third Supplement”),  the Issuer established and issued a series of Securities designated as the “4.000% Senior Notes due 2025” (the “2025 Notes”) in the initial aggregate principal amount of $250,000,000;

 

WHEREAS, Sections 3.01 and 9.01 of the Indenture and Section 2.2 of the Second Supplement (in respect of the 2023 Notes) and Section 2.2 of the Third Supplement (in respect of the 2025 Notes) provide that, without the consent of the Holders of the 2023 Notes, the 2025 Notes or other Securities, the Issuer and the Parent Guarantor may enter into one or more supplemental indentures to provide for the issuance of additional Securities of a series in accordance with the terms, conditions and limitations set forth in the Indenture;

 

WHEREAS, the Issuer proposes to issue an additional $50,000,000 aggregate principal amount of its 2023 Notes and to have such additional Securities (the “Additional 2023 Notes”) treated, together with the outstanding 2023 Notes, as a single issue of Securities;

 

WHEREAS, the Issuer proposes to issue an additional $50,000,000 aggregate principal amount of its 2025 Notes and to have such additional Securities (the “Additional 2025 Notes”) treated, together with the outstanding 2025 Notes, as a single issue of Securities;

 

WHEREAS, the consent of Holders to the execution and delivery of this Fifth Supplemental Indenture is not required and all the conditions and requirements necessary to make this Fifth Supplemental Indenture, when duly executed and delivered, a valid and binding agreement in accordance with its terms and for the purposes herein expressed, have been performed and fulfilled.

 

NOW, THEREFORE, in consideration of the premises and the purchase of Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or series thereof (as determined by reference to principal amount, plus accrued but unpaid interest, of the Securities held by such Holders), as follows:

 

ARTICLE I

 

RELATION TO INDENTURE; DEFINITIONS

 

Section 1.1.           Relation to Indenture.  This Fifth Supplemental Indenture constitutes an integral part of the Indenture.

 

Section 1.2.           Definitions.  For all purposes of this Fifth Supplemental Indenture, except for terms defined herein or unless the context otherwise requires, capitalized terms used but not defined herein shall have the respective meanings assigned to them in the Indenture.

 

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ARTICLE II

 

THE SECURITIES

 

Section 2.1.           Additional 2023 Notes. The aggregate principal amount of Additional 2023 Notes to be authenticated and delivered under this Fifth Supplemental Indenture is $50,000,000 (not including the Additional 2023 authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Securities pursuant to Sections 304, 305 or 306 of the Indenture) and the Additional 2023 Notes will be part of the existing series of 2023 Notes under the Indenture as supplemented by the Second Supplement, and the Additional 2023 Notes and 2023 Notes shall be a single series and single issue of Securities for all purposes under the Indenture the Second Supplement and are identical in all terms and conditions except the date of issuance.  Interest shall accrue on the Additional 2023 Notes from December 15, 2016. The Additional 2023 Notes will be issued upon Issuer Order in the form contemplated by the Indenture as supplemented by the Second Supplement, which may be modified as necessary to reflect the terms hereof.

 

Section 2.2.           Additional 2025 Notes. The aggregate principal amount of Additional 2025 Notes to be authenticated and delivered under this Fifth Supplemental Indenture is $50,000,000 (not including the Additional 2025 Notes authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Securities pursuant to Sections 304, 305 or 306 of the Indenture) and the Additional 2025 Notes will be part of the existing series of 2025 Notes under the Indenture as supplemented by the Third Supplement, and the Additional 2025 Notes and 2025 Notes shall be a single series and single issue of Securities for all purposes under the Indenture and are identical in all terms and conditions except the date of issuance.  Interest shall accrue on the Additional 2025 Notes from November 15, 2016. The Additional 2025 Notes will be issued upon Issuer Order in the form contemplated by the Indenture as supplemented by the Third Supplement, which may be modified as necessary to reflect the terms hereof.

 

ARTICLE III

 

MISCELLANEOUS PROVISIONS

 

Section 3.1.           Ratification of Indenture. Except as expressly modified or amended hereby, the Indenture and the supplemental indentures executed and delivered prior to the date hereof (including, without limitation, the Second Supplement and Third Supplement) continue in full force and effect and are in all respects confirmed and preserved.

 

Section 3.2.           No Representation by Trustee. The Trustee makes no representation as to the validity or sufficiency of this Fifth Supplemental Indenture.

 

Section 3.3.           Governing Law. This Fifth Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York.

 

Section 3.4.           Counterparts. This Fifth Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.

 

[Remainder of Page Intentionally Left Blank]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental Indenture to be duly executed by their respective officers hereunto duly authorized, all as of the day and year first written above.

 

 

CUBESMART, L.P.

 

 

 

By:

CUBESMART

 

 

Its General Partner

 

 

 

 

 

 

 

By:

/s/ Timothy M. Martin

 

 

Name:

Timothy M. Martin

 

 

Title:

Chief Financial Officer and Treasurer

 

 

 

 

 

 

 

CUBESMART

 

 

 

 

 

By:

/s/ Timothy M. Martin

 

 

Name:

Timothy M. Martin

 

 

Title:

Chief Financial Officer and Treasurer

 

 

 

 

 

 

 

U.S. BANK NATIONAL ASSOCIATION, as Trustee

 

 

 

 

 

By:

/s/ George J. Rayzis

 

 

Name:

George J. Rayzis

 

 

Title:

Vice President

 


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Section 5: EX-5.1 (EX-5.1)

Exhibit 5.1

 

GRAPHIC

 

3000 Two Logan Square

Eighteenth and Arch Streets

Philadelphia, PA  19103-2799

215.981.4000

Fax 215.981.4750

 

April 4, 2017

 

CubeSmart, L.P.
CubeSmart

5 Old Lancaster Road

Malvern, PA 19355

 

Ladies and Gentlemen:

 

We have served as counsel to CubeSmart, L.P., a Delaware limited partnership (the “Operating Partnership”) and CubeSmart, a Maryland real estate investment trust (“CubeSmart”, and together with the Operating Partnership, the “Issuers”) in connection with the offer and sale of $50,000,000 in principal amount of 4.375% senior notes due 2023 (the “2023 Notes”) and of $50,000,000 in principal amount of 4.000% senior notes due 2025 (the “2025 Notes”) of the Operating Partnership, in each case fully and unconditionally guaranteed by CubeSmart (the “Guarantee,” and together with the 2023 Notes and 2025 Notes, the “Debt Securities”), pursuant to a Registration Statement on Form S-3 (Registration No. 333-216768) (the “Registration Statement”) filed on March 17, 2017 with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”).  The Debt Securities will be issued and sold pursuant to an Underwriting Agreement, dated March 30, 2017 (the “Underwriting Agreement”) by and among the Issuers and Wells Fargo Securities, LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated and U.S. Bancorp Investments, Inc., as representatives of the several underwriters listed on Exhibit A thereto (the “Underwriters”). Capitalized terms used but not defined herein shall have the meanings given to them in the Registration Statement.

 

In connection with our representation of the Issuers, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (hereinafter collectively referred to as the “Documents”):

 

1.             The Registration Statement, the related form of prospectus included therein, and the prospectus supplement for the offer and sale of the Debt Securities in the forms in which they were transmitted to the Commission under the Act;

 

2.             The global note evidencing the 2023 Notes and the Guarantee of the 2023 Notes;

 

3.             The global note evidencing the 2025 Notes and the Guarantee of the 2025 Notes;

 

4.             The Certificate of Limited Partnership of the Operating Partnership, as amended through the date hereof (the “Partnership Certificate”), certified as of March 22, 2017 by the Office of the Secretary of State of the State of Delaware;

 

Philadelphia

 

Boston

 

Washington, D.C.

 

Los Angeles

 

New York

 

Pittsburgh

Detroit

 

Berwyn

 

Harrisburg

 

Orange County

 

Princeton

 

Silicon Valley

 

Wilmington

 

www.pepperlaw.com

 



 

5.             The Second Amended and Restated Agreement of Limited Partnership of the Operating Partnership, as amended through the date hereof (the “Partnership Agreement”), certified as of the date hereof by an officer of CubeSmart in its capacity as the general partner of the Operating Partnership;

 

6.             The Articles of Restatement of Declaration of Trust of CubeSmart, as amended and supplemented through the date hereof (the “Declaration of Trust”), certified as of March 24, 2017 by the State Department of Assessments and Taxation of Maryland (the “SDAT”);

 

7.             The Third Amended and Restated Bylaws of CubeSmart (the “Bylaws”), as amended through the date hereof;

 

8.             A certificate of the Office of the Secretary of the State of Delaware as to the good standing of the Operating Partnership, dated as of a recent date;

 

9.             A certificate of the SDAT as to the good standing of CubeSmart, dated as of a recent date;

 

10.          Resolutions (the “Resolutions”) adopted by the Board of Trustees of CubeSmart (acting on behalf of CubeSmart in its own capacity and its capacity as the general partner of the Operating Partnership) and the resolutions of the Pricing Committee of the Board of Trustees of CubeSmart (the “Pricing Committee Resolutions”) relating to the issuance of the Debt Securities, certified, in each case, as of the date hereof by an officer of CubeSmart;

 

11.          The Underwriting Agreement;

 

12.          The indenture, dated as of September 16, 2011, between the Issuers and U.S. Bank National Association, as trustee (the “Trustee”), the First Supplemental Indenture, dated as of June 26, 2012, the Second Supplemental Indenture, dated as of December 17, 2013, the Third Supplemental Indenture, dated as of October 26, 2015, the Fourth Supplemental Indenture, dated as of August 15, 2016 and the Fifth Supplemental Indenture, dated as of April 4, 2017 (collectively, the “Indenture”); and

 

13.          Such other documents and matters as we have deemed necessary or appropriate to express the opinions set forth in this letter, subject to the assumptions, limitations and qualifications stated herein.

 

In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as certified or photostatic copies, and the authenticity of the originals of such latter documents.  As to any facts material to the opinions expressed herein which were not independently established or verified, we have relied upon statements and representations of officers and other representatives of the Issuers and others.

 

In expressing the opinions set forth below, we have assumed the following:

 

1.     The Indenture pursuant to which the Debt Securities are to be issued, executed, delivered and sold has been duly authorized, executed and delivered by the Trustee;

 

2.     The Trustee is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and will be in compliance, generally and with respect to acting as a trustee, under the Indenture and all applicable laws and regulations;

 

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3.     The 2023 Notes and 2025 Notes will be duly authenticated or delivered by the Trustee against payment by the Underwriters at the agreed-upon consideration; and

 

4.    The Registration Statement has been declared effective pursuant to the Act and the Indenture has been qualified under the Trust Indenture Act of 1939, as amended.

 

Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that the 2023 Notes and 2025 Notes are duly authorized for issuance and, when issued and delivered against payment therefor in accordance with the Underwriting Agreement and the Indenture, will constitute valid and binding obligations of the Operating Partnership enforceable against the Operating Partnership in accordance with their terms.   The Guarantee of CubeSmart of each of the 2023 Notes and 2025 Notes is duly authorized for issuance and, when issued and delivered against payment for the 2023 Notes and 2025 Notes in accordance with the Underwriting Agreement and the Indenture, will constitute valid and binding obligations of CubeSmart enforceable against CubeSmart in accordance with its terms.

 

In addition to the other qualifications, exceptions and limitations set forth in this opinion letter, our opinions expressed above are also subject to the effect of: (a) bankruptcy, insolvency, reorganization, moratorium and other laws affecting creditors’ rights (including, without limitation, the effect of statutory and other law regarding fraudulent conveyances, fraudulent transfers and preferential transfers), and (b) the exercise of judicial discretion and the application of principles of equity, good faith, fair dealing, reasonableness, conscionability and materiality (regardless of whether the applicable agreements are considered in a proceeding in equity or at law).

 

The foregoing opinion is limited to the substantive laws of the State of Maryland, the State of New York and the State of Delaware, and we do not express any opinion herein concerning any other law.  We express no opinion as to compliance with any federal or state securities laws, including the securities laws of the State of Maryland, the State of New York and the State of Delaware.  We assume no obligation to supplement this opinion letter if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinions expressed herein after the date hereof.

 

This opinion letter is being furnished to you for your submission to the Commission as an exhibit to the report filed on Form 8-K (the “Form 8-K”) by the Issuers with the Commission on or about the date hereof.  We hereby consent to the filing of this opinion as an exhibit to the Form 8-K in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act and to the use of this firm’s name therein and under the section “Legal Matters” in the related prospectus supplement and the prospectus included in the Registration Statement.  In giving such consent, we do not hereby admit that we are an “expert” within the meaning of the Act.

 

 

Very truly yours,

 

 

 

/s/ Pepper Hamilton LLP

 

 

 

Pepper Hamilton LLP

 

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