Exhibit 4.4
CUBESMART, L.P.,
Issuer,
and
CUBESMART,
Parent Guarantor,
and
U.S. BANK NATIONAL ASSOCIATION
Trustee
Ninth Supplemental Indenture
Dated as of November 30, 2021
To
Indenture
Dated as of September 16, 2011
2.25% SENIOR NOTES DUE 2028
2.50% SENIOR NOTES DUE 2032
NINTH
SUPPLEMENTAL INDENTURE, dated as of November 30, 2021 (this “Ninth 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, the Issuer proposes
to create under the Indenture two new series of Securities;
WHEREAS, Section 301 of
the Indenture provides that the Issuer, the Parent Guarantor and the Trustee may enter into supplemental indentures prior to the issuance
of a new series of Securities to create such series of Securities and set forth the terms of such series of Securities; and
WHEREAS, the consent of Holders
to the execution and delivery of this Ninth Supplemental Indenture is not required and all the conditions and requirements necessary to
make this Ninth 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 Ninth Supplemental Indenture constitutes an integral part of the Indenture. The changes to the
Indenture effected by this Ninth Supplemental Indenture shall apply only with respect to the Notes and not to any other series of Securities
issued under the Indenture.
Section 1.2.
Definitions. For all purposes of this Ninth 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.
In addition, the following terms shall have the following meanings to be equally applicable to both the singular and plural forms of the
terms set forth below:
“Acquired
Indebtedness” means Indebtedness of a Person (i) existing at the time such Person becomes a Subsidiary or
(ii) assumed in connection with the acquisition of assets from such Person, in each case, other than Indebtedness incurred in connection
with, or in contemplation of, such Person becoming a Subsidiary or such acquisition. Acquired Indebtedness shall be deemed to be incurred
on the date of the related acquisition of assets from any Person or the date on which the acquired Person becomes a Subsidiary.
“Annual
Debt Service Charge” means, for any period, the aggregate interest expense (including without limitation,
the interest component of any finance lease of property by the Issuer or any of its Subsidiaries as lessee which is reflected on the Issuer’s
consolidated balance sheet in accordance with GAAP and letter of credit fees, commitment fees and other similar financial charges) for
such period in respect of, and the amortization during such period of any original issue discount of, Indebtedness of the Issuer
and its Subsidiaries.
“Comparable
Treasury Issue” means, with respect to a series of Notes to be redeemed, the U.S. Treasury security selected
by an Independent Investment Banker as having a maturity comparable to the remaining term of the Notes to be redeemed (assuming, for this
purpose, that such Notes mature on the applicable Par Call Date) that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such
Notes.
“Comparable
Treasury Price” means (i) the average of five Reference Treasury Dealer Quotations for a Redemption Date,
after excluding the highest and lowest Reference Treasury Dealer Quotations, or (ii) if the Independent Investment Banker obtains
fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.
“Consolidated
Income Available for Debt Service” means, for any period, Earnings from Operations of the Issuer and its Subsidiaries
plus amounts which have been deducted, and minus amounts which have been added, for the following (without duplication): (i) Annual
Debt Service Charge of the Issuer and its Subsidiaries, (ii) provision for taxes of the Issuer and its Subsidiaries based on income,
(iii) provisions for gains and losses on properties and depreciation and amortization, (iv) increases in deferred taxes and
other non-cash items, (v) depreciation and amortization with respect to interests in joint venture and partially owned entity investments,
(vi) the effect of any charge resulting from a change in accounting principles in determining Earnings from Operations for such period
and (vii) amortization of deferred charges.
“Earnings
from Operations” means, for any period, net income or loss of the Issuer and its Subsidiaries, excluding (i) provisions
for gains and losses on sales of investments or joint ventures; (ii) provisions for gains and losses on disposition of discontinued
operations; (iii) extraordinary and non-recurring items; and (iv) impairment charges and property valuation losses, as reflected
in the consolidated financial statements of the Issuer and its Subsidiaries for such period determined in accordance with GAAP.
“Encumbrance”
means any mortgage, lien, pledge or security interest of any kind.
“Indebtedness”
means, with respect to the Issuer or any of its Subsidiaries (without duplication) any indebtedness of the Issuer or any of its respective
Subsidiaries, (i) in respect of borrowed money, (ii) evidenced by bonds, notes, debentures or similar instruments, (iii) secured
by any Encumbrance existing on property owned by the Issuer or any of its Subsidiaries, (iv) consisting of letters of credit or amounts
representing the balance deferred and unpaid of the purchase price of any property, except any such balance that constitutes an accrued
expense or trade payable, or (v) in respect of any lease of property by the Issuer or any of its Subsidiaries as lessee which is
reflected on the Issuer’s consolidated balance sheet as a financing lease in accordance with GAAP, and also includes, to the extent
not otherwise included, any obligation by the Issuer or any of its Subsidiaries to be liable for, or to pay, as obligor, guarantor or
otherwise (other than for purposes of collection in the ordinary course of business), indebtedness of another person (other than the Issuer
or its Subsidiaries); it being understood that indebtedness shall be deemed to be incurred by the Issuer or any of its Subsidiaries whenever
it or that Subsidiary creates, assumes, guarantees or otherwise becomes liable in respect thereof. Indebtedness of any Subsidiary existing
prior to the time it became a Subsidiary of the Issuer shall be deemed to be incurred at the time that Subsidiary becomes a Subsidiary
of the Issuer; and Indebtedness of a Person existing prior to a merger or consolidation of that Person with the Issuer or any of its Subsidiaries
in which that Person is the successor to the Issuer or that Subsidiary shall be deemed to be incurred upon the consummation of that merger
or consolidation. Notwithstanding the preceding sentences of this definition, the term Indebtedness shall not include any indebtedness
that had been the subject of an “in substance” defeasance in accordance with GAAP or any operating lease liabilities reflected
on the Issuer’s consolidated balance sheet in accordance with GAAP.
“Independent
Investment Banker” means Wells Fargo Securities, LLC, PNC Capital Markets LLC and U.S. Bancorp Investments, Inc.
or, if these firms are unwilling or unable to select the Comparable Treasury Issue, an independent investment banking institution of national
standing appointed by the Issuer.
“Intercompany
Indebtedness” means Indebtedness to which the only parties are the Issuer, any of the Guarantors and any of their
respective Subsidiaries (but only so long as such Indebtedness is held solely by any of the Issuer, any of the Guarantors and any of their
respective Subsidiaries) that is subordinate in right of payment to the Securities.
“Make-Whole Redemption
Price” means the sum of the present values of the remaining scheduled payments of principal of, and interest on, the
Notes to be redeemed (not including any accrued and unpaid interest), assuming that such Notes matured on the applicable Par Call Date,
discounted to the redemption date on a semiannual basis at the applicable Treasury Rate plus 15 basis points.
“Par Call Date”
means, with respect to the 2028 Notes, October 15, 2028 and with respect to the 2032 Notes, November 15, 2031.
“Reference
Treasury Dealer” means each of (i) (a) Wells Fargo Securities, LLC, (b) a primary treasury dealer
selected by each of PNC Capital Markets LLC and U.S. Bancorp Investments, Inc. or their successors, and (c) their respective
successors; provided, however, that, if any of the foregoing ceases to be a primary U.S. government securities dealer (a “primary
treasury dealer”), the Issuer will substitute therefor another primary treasury dealer, and (ii) any two other primary treasury
dealers selected by the Issuer after consultation with the Independent Investment Banker.
“Reference
Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the
average, as determined by the Independent Investment Banker, of the bid and asked prices for the applicable Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker at 5:00 p.m. (New
York City time) on the third Business Day preceding the date of the notice of such redemption.
“Total
Assets” means, as of any date, the sum of (i) the Undepreciated Real Estate Assets and (ii) all other
assets of the Issuer and its Subsidiaries determined in accordance with GAAP (but excluding accounts receivable, intangibles and any right
to use assets under operating leases reflected on the Issuer’s consolidated balance sheet in accordance with GAAP).
“Total
Unencumbered Assets” means the sum of (i) those Undepreciated Real Estate Assets not subject to an Encumbrance
for borrowed money or leased pursuant to a finance lease and (ii) all other assets of the Issuer and its Subsidiaries not subject
to an Encumbrance for borrowed money, determined in accordance with GAAP (but excluding accounts receivable and intangibles); provided,
however, that, in determining Total Unencumbered Assets as a percentage of outstanding Unsecured Indebtedness, all investments by the
Issuer and its Subsidiaries in unconsolidated joint ventures, unconsolidated limited partnerships, unconsolidated limited liability companies
and other unconsolidated entities shall be excluded from Total Unencumbered Assets to the extent that such investments would have otherwise
been included.
“Treasury
Rate” means, with respect to any Redemption Date:
(i) the yield, under the heading
which represents the average for the immediately preceding week (being, if not reported as a weekly average yield, the average of the
five most recent daily reported yields), appearing in the most recently published statistical release designated “H.15” or
any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields
on actively traded U.S. Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities,”
for the maturity (rounded to the nearest month) corresponding to the remaining life to the applicable Par Call Date of the Notes to be
redeemed (the “remaining life”) (or if no such maturity exactly corresponds to the remaining life, yields for the two published
maturities most closely corresponding to the remaining life will be determined and the Treasury Rate will be interpolated or extrapolated
from such yields on a straight line basis, rounding to the nearest month); or
(ii) if such release (or any successor
release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to
the semiannual equivalent yield to maturity of the applicable Comparable Treasury Issue, calculated using a price for such Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
The applicable Treasury Rate
will be calculated by the Issuer on the third Business Day preceding the date of the notice of redemption and set forth in an Officers’
Certificate delivered to the Trustee.
“Undepreciated
Real Estate Assets” means, as of any date, the cost (original cost plus capital improvements) of real estate
assets and right-of-use assets associated with leases of property required to be reflected as finance leases on the balance sheet of the
Operating Partnership and its Subsidiaries on such date, before depreciation and amortization, determined on a consolidated basis in accordance
with GAAP; provided, however, that “Undepreciated Real Estate Assets” shall not include right-of-use assets associated with
leases of property required to be reflected as operating leases in accordance with GAAP.
“Unsecured
Indebtedness” means Indebtedness which is not secured by any Encumbrance upon any of the properties of the Issuer
or any of its Subsidiaries.
ARTICLE II
THE SECURITIES
There is established a series
of Securities pursuant to the Indenture with the following terms:
Section 2.1.
Title of the Securities. The series of Securities established under this Ninth Supplemental Indenture shall be designated
as (a) the “2.25% Senior Notes due 2028” (the “2028 Notes”), and (b) the “2.50% Senior
Notes due 2032” (the “2032 Notes” and, together with the 2028 Notes, the “Notes”). Each of
the 2028 Notes and the 2032 Notes will constitute a separate series of Securities under the Indenture.
Section 2.2.
Aggregate Principal Amount. The 2028 Notes initially will be issued in an aggregate principal amount of $550,000,000 and
the 2032 Notes initially will be issued in an aggregate principal amount of $500,000,000 (in each case, not including the 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); provided that the Issuer may, without the consent of Holders of the Notes, issue additional Notes of each series
having the same ranking and the same interest rate, maturity and other terms as the Notes of such series, except for the issue date, issue
price, the first payment date (if applicable) and payment of interest accruing prior to the issue date of such additional Notes, which
additional Notes will constitute a single series of Securities with the initial Notes of such series under the Indenture.
Section 2.3.
Maturity Date. The date on which the principal is payable on the 2028 Notes is December 15, 2028 and the 2032 Notes
is February 15, 2032, in each case subject to the provisions of the Indenture relating to acceleration (as applicable to each series
of Notes, the “Maturity Date”).
Section 2.4.
Ranking. The Notes will be unsecured senior debt of the Issuer and will be guaranteed as provided in Article Fourteen
of the Indenture by the Parent Guarantor.
Section 2.5.
Interest. The 2028 Notes will bear interest from, and including, the date of initial issuance, 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 2028 Notes, as applicable, at a rate of 2.25% per annum, payable semi-annually in arrears on June 15
and December 15 of each year, commencing June 15, 2022. The 2032 Notes will bear interest from, and including, the date of initial
issuance, 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 2032 Notes, as applicable, at a rate of 2.50% per annum, payable
semi-annually in arrears on February 15 and August 15 of each year, commencing August 15, 2022. The Issuer will pay interest
to the Person in whose name a 2028 Note is registered at the close of business on June 1 or December 1 next preceding the interest
payment date for the 2028 Notes. The Issuer will pay interest to the Person in whose name a 2032 Note is registered at the close of business
on February 1 or August 1 next preceding the interest payment date for the 2032 Notes. 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 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.
Section 2.6.
Place of Payment for Principal, Interest and Redemption Price. The principal of, interest on and Redemption Price,
if any, for 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 of, interest on and Redemption Price, if any, for the Notes may be made by check mailed to the person
entitled thereto as provided in the Indenture.
Section 2.7.
Defeasance. Each series of Notes shall be subject to legal defeasance under Section 402 of the Indenture and to covenant
defeasance under Section 403 of the Indenture as permitted pursuant to Section 401 of the Indenture.
Section 2.8.
Sinking Fund. The Notes shall not have the benefit of any sinking fund.
Section 2.9.
Form and Dating.
(a) The
Notes shall be substantially in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements
required by law, stock exchange rule or usage. Each Note shall be dated the date of its authentication.
(b) The terms and provisions
contained in the Notes shall constitute, and are hereby expressly made, a part of this Ninth Supplemental Indenture, and the Issuer, the
Parent Guarantor and the Trustee, by their execution and delivery of this Ninth Supplemental Indenture, expressly agree to such terms
and provisions and to be bound thereby. However, to the extent any provision of any Notes conflicts with the express provisions of this
Ninth Supplemental Indenture, the provisions of this Ninth Supplemental Indenture shall govern and be controlling.
(c) The
Notes of each series will be issued in the form of one or more fully-registered global securities (the “Global Securities”).
The Depository Trust Company shall serve as the depositary (the “Depositary”) for the Global Securities. The Global
Securities will be deposited with, or on behalf of, the Depositary and registered, at the request of the Depositary, in the name of Cede &
Co. Except as set forth below, the Global Securities may be transferred, in whole and not in part, only by the Depositary to its nominee
or by its nominee to such Depositary or another nominee of the Depositary or by the Depositary or its nominee to a successor of the Depositary
or a nominee of such successor. If (i) the Depositary is at any time unwilling or unable to continue as depositary and a successor
depositary is not appointed by the Issuer within 90 calendar days after receipt of such notice from the Depositary; (ii) the Depositary
ceases to be a clearing agency registered under the Exchange Act and the Issuer does not appoint a successor depositary within 90 calendar
days of becoming aware that the Depositary has ceased to be registered as a clearing agency; (iii) the Issuer, in its sole discretion,
determines that the Notes of a series will be exchangeable for definitive securities in registered form and notifies the Trustee of its
decision; or (iv) an Event of Default with respect to the Notes represented by a Global Security has occurred and is continuing,
then in each case the Issuer may issue Notes of the relevant series in certificated form in exchange for the Global Security. In each
of these instances, an owner of an interest in the Global Securities would be entitled to physical delivery of such Notes in certificated
form. Notes so issued in certificated form will be issued in denominations of $2,000 and integral multiples of $1,000 in excess thereof
and will be issued in registered form only.
Section 2.10.
Optional Redemption. The Notes of each series may be redeemed at the Issuer’s option in whole or, from time to time,
in part prior to the applicable Maturity Date as follows:
(a) If the Notes are redeemed
before the applicable 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 to be redeemed, plus accrued and unpaid interest thereon to, but not including, the Redemption Date; and
(ii) the applicable Make-Whole Redemption
Price (if any) with respect to such Notes, plus accrued and unpaid interest thereon to, but not including the Redemption Date.
(b) If the Notes are redeemed
on or after the applicable Par Call Date, such Notes will be redeemed at a Redemption Price equal to 100% of the principal amount of the
Notes being redeemed, plus accrued and unpaid interest on the principal amount 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 Redemption Price 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 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 Redemption Price on the Notes to be redeemed shall be made on the Business Day immediately preceding such Redemption
Date on which payment was due.
Section 2.11.
Notice of Redemption. Notice of redemption shall be given in the manner provided in Section 106 of the Indenture not
later than 15 days and not earlier than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed.
ARTICLE III
ADDITIONAL COVENANTS
In addition to the covenants
set forth in the Indenture, the Issuer hereby further covenants as follows for the benefit of the Holders of the Notes:
Section 3.1.
Limitation on Incurrence of Indebtedness.
(a) The Issuer shall not, and shall
not permit any of its Subsidiaries to, incur any Indebtedness, other than Intercompany Indebtedness, if, immediately after giving effect
to the incurrence of such additional Indebtedness and the application of the proceeds thereof, the aggregate principal amount of all outstanding
Indebtedness of the Issuer and its Subsidiaries on a consolidated basis determined in accordance with GAAP is greater than 60% of the
sum of (without duplication):
(1) the
Total Assets of the Issuer and its Subsidiaries as of the end of the calendar quarter covered in the Issuer’s Annual Report
on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most recently filed with the Commission (or, if such filing
is not permitted under the Exchange Act, with the Trustee) prior to the incurrence of such additional Indebtedness; and
(2) the purchase
price of any assets included in the definition of Total Assets acquired, and the amount of any securities offering proceeds received (to
the extent such proceeds were not used to acquire items included in the definition of Total Assets or used to reduce indebtedness), by
the Issuer or any of its Subsidiaries since the end of such calendar quarter, including those proceeds obtained in connection with the
incurrence of such additional Indebtedness.
(b) The Issuer shall not, and shall
not permit any of its Subsidiaries to, incur any Indebtedness if the ratio of Consolidated Income Available for Debt Service to the Annual
Debt Service Charge for the four consecutive fiscal quarters most recently ended prior to the date on which such additional Indebtedness
is to be incurred shall have been less than 1.5:1, on a pro forma basis after giving effect thereto and to the application of the proceeds
therefrom, and calculated on the assumption that:
(1) such Indebtedness
and any other Indebtedness incurred by the Issuer and its Subsidiaries since the first day of such four-quarter period and the application
of the proceeds therefrom, including to refinance other Indebtedness, had occurred at the beginning of such period;
(2) the repayment
or retirement of any other Indebtedness by the Issuer and its Subsidiaries since the first day of such four-quarter period had been repaid
or retired at the beginning of such period (except that, in making such computation, the amount of Indebtedness under any revolving credit
facility shall be computed based upon the average daily balance of such Indebtedness during such period);
(3) in the
case of Acquired Indebtedness or Indebtedness incurred in connection with any acquisition since the first day of such four-quarter period,
the related acquisition had occurred as of the first day of such period with the appropriate adjustments with respect to such acquisition
being included in such pro forma calculation; and
(4) in the
case of any acquisition or disposition by the Issuer or any of its Subsidiaries of any asset or group of assets since the first day of
such four-quarter period, whether by merger, stock purchase or sale, or asset purchase or sale, such acquisition or disposition or any
related repayment of Indebtedness had occurred as of the first day of such period with the appropriate adjustments with respect to such
acquisition or disposition being included in such pro forma calculation.
(c) The Issuer shall not, and shall
not permit any of its Subsidiaries to, incur any Indebtedness secured by any Encumbrance upon any of the property of the Issuer or any
of its Subsidiaries, whether owned at the date of the Indenture or thereafter acquired, if, immediately after giving effect to the incurrence
of such additional Indebtedness secured by an Encumbrance and the application of the proceeds thereof, the aggregate principal amount
of all outstanding Indebtedness of the Issuer and its Subsidiaries on a consolidated basis which is secured by any Encumbrance on property
of the Issuer or any of its Subsidiaries is greater than 40% of the sum of (without duplication):
(1) the
Total Assets of the Issuer and its Subsidiaries as of the end of the calendar quarter covered in the Issuer’s Annual Report
on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most recently filed with the Commission (or, if such filing
is not permitted under the Exchange Act, with the Trustee) prior to the incurrence of such additional Indebtedness; and
(2) the purchase
price of any assets included in the definition of Total Assets acquired, and the amount of any securities offering proceeds received (to
the extent such proceeds were not used to acquire items included in the definition of Total Assets or used to reduce Indebtedness), by
the Issuer or any of its Subsidiaries since the end of such calendar quarter, including those proceeds obtained in connection with the
incurrence of such additional Indebtedness.
(d) The Issuer and its Subsidiaries
may not at any time own Total Unencumbered Assets equal to less than 150% of the aggregate outstanding principal amount of the Unsecured
Indebtedness of the Issuer and its Subsidiaries on a consolidated basis.
Section 3.2.
Insurance. Each of the Issuer and the Guarantors shall cause each of their properties and each of the properties of their
respective Subsidiaries to be insured against loss or damage with insurers of recognized responsibility, in commercially reasonable amounts
and types and with insurers having a specified rating from a recognized insurance rating service.
Section 3.3.
Provision of Financial Information. Notwithstanding the provisions set forth in Section 704 of the Indenture, (a) the
Parent Guarantor and the Issuer will furnish to the Trustee such information, documents and other reports as may be required pursuant
to the Trust Indenture Act, including filing with the Trustee within 15 days of the due date thereof, information, documents or reports
required to be filed by the Issuer with the Commission, and (b) the Issuer and the Guarantors agree that if the Issuer is not then
subject to Section 13 or 15(d) of the Exchange Act, the Issuer will (i) transmit by mail to all Holders, as their names
and addresses appear in the Security Register, without cost to such Holders, copies of the annual reports and quarterly reports which
the Issuer would have been required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act if the Issuer
were subject to such Sections, and (ii) file with the Trustee copies of annual reports, quarterly reports and other documents which
the Issuer would have been required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act if the Issuer
were subject to such Sections, in each case, within 15 days after the respective dates by which the Issuer would have been required so
to file such reports and other documents if the Issuer were so subject.
Section 3.4.
Waiver of Certain Covenants. The Issuer and the Guarantors may omit in any particular instance to comply with any covenant
or condition set forth in Sections 3.1 and 3.2, inclusive, of this Ninth Supplemental Indenture, if before or after the time for such
compliance the Holders of more than 50% in principal amount of the Outstanding Notes shall, in each case by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such covenant or condition, but no such waiver shall extend
to or affect such covenant or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations
of the Issuer and the Guarantors and the duties of the Trustee for the Notes with respect to any such covenant or condition shall remain
in full force and effect.
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.1.
Ratification of Indenture. Except as expressly modified or amended hereby, the Indenture continues in full force and effect
and is in all respects confirmed and preserved.
Section 4.2.
No Representation by Trustee. The Trustee makes no representation as to the validity or sufficiency of this Ninth Supplemental
Indenture.
Section 4.3.
Governing Law. This Ninth Supplemental Indenture shall be governed by and construed in accordance with the laws of the State
of New York.
Section 4.4.
Counterparts. This Ninth 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]
IN WITNESS WHEREOF, the parties hereto have caused
this Ninth Supplemental Indenture to be duly executed by their respective officers hereunto duly authorized, all as of the day and year
first written above.
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CUBESMART, L.P. |
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By: |
CUBESMART |
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Its General Partner |
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By: |
/s/ Timothy M. Martin |
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Name: |
Timothy M. Martin |
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Title: |
Chief Financial Officer and Treasurer |
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CUBESMART |
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By: |
/s/ Timothy M. Martin |
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Name: |
Timothy M. Martin |
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Title: |
Chief Financial Officer and Treasurer |
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U.S. BANK NATIONAL ASSOCIATION, |
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as Trustee |
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By: |
/s/ George J. Rayzis |
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Name: |
George J. Rayzis |
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Title: |
Vice President |
[Signature Page to the Ninth Supplemental
Indenture]
EXHIBIT A1
FORM OF NOTE
[Face of Note]
CUSIP # [•]
[2.25% Senior Note due 2028]* / [2.50% Senior Notes
due 2032]**
CUBESMART, L.P.
promises to pay to CEDE & CO. or its
registered assigns, the principal sum of [•] MILLION Dollars on [December 15, 2028]* / [February 15, 2032]**.
Interest Payment Dates: [June 15 and December 15]* / [February 15
and August 15]**
Record Dates: [June 1 and December 1]* / [February 1
and August 1]**
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.
1 Bracketed items in this form of Note denoted by * are
to be inserted for 2028 Notes, and bracketed items denoted by ** are to be inserted for 2032 Notes.
IN
WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed as of [•].
| [SEAL] |
CUBESMART, L.P. |
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By: CUBESMART, |
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as General Partner |
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By: |
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Name: |
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Title: |
Attest:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein described in the within-mentioned Indenture.
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U.S. BANK NATIONAL ASSOCIATION, |
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as Trustee |
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By: |
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Authorized Signatory |
[Signature Page to Note]
[Back of Note]
[2.25% Senior Notes due 2028]* / [2.50% Senior
Notes due 2032]**
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, [___], 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 [2.25%]* / [2.50%]** per annum, payable semi-annually in arrears on [June 15 and December 15]* / [February 15
and August 15]** of each year, commencing [June 15, 2022]* / [August 15, 2022]**. 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]* / [February 1 or August 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 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, Interest
and Redemption Price. The principal of, interest on and Redemption Price, if any, for 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 the principal of, interest on and, Redemption
Price, if any, for the Notes 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 as [2028 Notes]* / [2032 Notes]** (referred to herein as the “Notes”) under an indenture, dated
as of September 16, 2011 (the “Base Indenture”), as amended by the Ninth Supplemental Indenture, dated as of November 30,
2021 (the “Ninth Supplemental Indenture” and, together with the Base Indenture, and as the Base Indenture and the Ninth
Supplemental Indenture may be further amended and supplemented from time to time, the “Indenture”), among the Issuer,
the Parent 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 applicable to the Notes, the provisions of the Indenture applicable
to the Notes shall govern and be controlling. The Notes are unsecured senior obligations of the Issuer and are guaranteed as provided
in the Base Indenture by the Parent Guarantor.
(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 [October 15, 2028]* / [November 15, 2031]** (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, plus accrued and unpaid interest thereon to, but not including,
the Redemption Date; and
(ii) the applicable Make-Whole
Redemption Price (if any) with respect to such Notes, plus accrued and unpaid interest thereon to, but not including the Redemption Date.
(b) If
the Notes are redeemed on or after the Par Call Date, the such 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 Redemption Price 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 Redemption Price 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,
if then determinable, and otherwise the method of its determination;
(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 the Global Securities 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; 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. If any Event
of Default with respect to the Notes occurs and is continuing as more fully provided in the Base Indenture, 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 the Parent Guarantor or any of its Subsidiaries, as such, will have any liability for any obligations
of the Parent Guarantor 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
FORM OF
NOTATION OF GUARANTEE
For
value received, the undersigned 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 Ninth Supplemental Indenture, dated as of November 30, 2021 (the “Ninth Supplemental
Indenture” and, together with the Base Indenture, and as the Base Indenture and the Ninth Supplemental Indenture may be further
amended and supplemented from time to time, the “Indenture”) among CubeSmart, L.P. (the “Issuer”),
the Parent Guarantor named therein and U.S. Bank National Association, as trustee (the “Trustee”), providing for the
issuance of the 2028 Notes and 2032 Notes described therein, 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 Base Indenture and reference is hereby made to the Indenture for the precise terms of the Guarantee.
| | CUBESMART |
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| | By: |
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Name: |
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Title: |
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.
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Your Signature: |
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(Sign exactly as your name appears
on the face of this Note) |
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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