As filed with the Securities and Exchange Commission on September 28, 2015
Registration No. 333-190983
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Post-Effective Amendment No. 7
to
FORM S-11
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
STRATEGIC STORAGE TRUST II, INC.
(Exact Name of Registrant as Specified in Its Governing Instruments)
111 Corporate Drive, Suite 120
Ladera Ranch, California 92694
(877) 327-3485
(Address, Including Zip Code and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
Paula Mathews
Executive Vice President and Secretary
Strategic Storage Trust II, Inc.
111 Corporate Drive, Suite 120
Ladera Ranch, California 92694
(877) 327-3485
(Name, Address, Including Zip Code and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Michael K. Rafter, Esq.
N ELSON M ULLINS R ILEY & S CARBOROUGH LLP
201 17 th Street NW
Suite 1700
Atlanta, Georgia 30363
(404) 322-6000
Approximate date of commencement of proposed sale to the public: This post-effective amendment is being filed pursuant to Rule 462(d) under the Securities Act and will be effective upon filing.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 check the following box: x
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. x Registration No. 333-193480
If delivery of the prospectus is expected to be made pursuant to Rule 434, check the following box. ¨
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act (Check One):
| Large accelerated filer | ¨ | Accelerated filer | ¨ | |||
| Non-accelerated filer | x (Do not check if a smaller reporting company) | Smaller reporting company | ¨ | |||
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant files a further amendment which specifically states that this Registration Statement will thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement becomes effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
Explanatory Note
This Post-Effective Amendment No. 7 to the Registration Statement (Registration No. 333-190983) of Strategic Storage Trust II, Inc. is filed pursuant to Rule 462(d) of the Securities Act of 1933, as amended, solely to file exhibits on Form S-11 not previously filed with respect to such Registration Statement.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 36. | Financial Statements and Exhibits |
(b) Exhibits :
|
Exhibit No. |
Description |
|
| 1.1 | Amendment No. 1 to Dealer Manager Agreement and Participating Dealer Agreement | |
| 3.1 | Articles of Amendment of Strategic Storage Trust II, Inc. | |
| 3.2 | Articles Supplementary of Strategic Storage Trust II, Inc. | |
| 10.1 | Amendment No. 2 to the Second Amended and Restated Limited Partnership Agreement of Strategic Storage Operating Partnership II, L.P. | |
II - 1
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-11 and has duly caused this Post-Effective Amendment No. 7 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Ladera Ranch, State of California, on the 28 th day of September, 2015.
| S TRATEGIC S TORAGE T RUST II, I NC . | ||
| By: |
/s/ Michael S. McClure |
|
|
Michael S. McClure Executive Vice President, Chief Financial Officer and Treasurer |
||
Pursuant to the requirements of the Securities Act of 1933, this Post-Effective Amendment No. 7 to the Registration Statement has been signed by the following persons in the capacities indicated and on the dates indicated.
|
Signature |
Title |
Date |
||
|
/s/ H. Michael Schwartz H. Michael Schwartz* |
Chief Executive Officer, President and Director (Principal Executive Officer) | September 28, 2015 | ||
|
/s/ Michael S. McClure Michael S. McClure |
Executive Vice President, Chief Financial Officer and Treasurer (Principal Financial and Accounting Officer) | September 28, 2015 | ||
|
/s/ William H. Brownfield William H. Brownfield** |
Independent Director | September 28, 2015 | ||
|
/s/ David J. Mueller David J. Mueller* |
Independent Director | September 28, 2015 | ||
| * | By: Michael S. McClure, as Attorney in fact, pursuant to Power of Attorney dated November 1, 2013 and filed on December 11, 2013. |
| ** | By: Michael S. McClure, as Attorney in fact, pursuant to Power of Attorney dated October 31, 2014 and filed on November 6, 2014. |
Exhibit 1.1
AMENDMENT NO. 1 TO DEALER MANAGER AGREEMENT
AND PARTICIPATING DEALER AGREEMENT
This Amendment No. 1 to Dealer Manager Agreement and Participating Dealer Agreement (this “ Amendment ”) is made and entered into as of this 28 th day of September, 2015 by and among Strategic Storage Trust II, Inc., a Maryland corporation (the “ Company ”), and Select Capital Corporation, a California corporation (the “ Dealer Manager ”).
RECITALS
WHEREAS, the Company previously filed a Registration Statement on Form S-11 (File No. 333-190983) to register for offer and sale up to $1.095 billion in shares of its common stock (the “ Shares ”), $0.001 par value per share (the “ Offering ”), to be issued and sold ($1.0 billion in shares to be offered to the public at a purchase price of $10.00 per share and $95 million in Shares to be offered pursuant to the Company’s distribution reinvestment plan at a purchase price of $9.50 per share), which Offering was declared effective by the SEC on January 10, 2014;
WHEREAS, in connection with the Offering, the Company and the Dealer Manager have entered into a Dealer Manager Agreement, dated December 4, 2013 (the “ Dealer Manager Agreement ”), and the Dealer Manager has subsequently entered into Participating Dealer Agreements, dated various dates, with participating dealers;
WHEREAS, the Company reached the minimum offering amount on May 23, 2014 and wishes to remove references to the minimum offering in the Dealer Manager Agreement and the Participating Dealer Agreement;
WHEREAS, the Company has determined that it will reclassify its currently outstanding Shares of common stock as Class A shares and reallocate the Shares registered in the Offering as Class A shares and Class T shares, such that the Company is offering $1.0 billion in Shares, consisting of Class A shares and Class T shares (excluding shares of its common stock to be offered and sold pursuant to the Company’s distribution reinvestment plan), at an initial price of $10.00 per share for Class A shares and $9.47 per share for Class T shares; and
WHEREAS, the Company and the Dealer Manager are entering into this Amendment to reflect the reallocation of Shares such that the Offering now consists of up to $500 million in shares of Class A common stock and $500 million in shares of Class T common stock (excluding shares of Class A common stock and Class T common stock to be offered and sold pursuant to the Company’s distribution reinvestment plan).
NOW THEREFORE, the Company and the Dealer Manager hereby modify and amend the Dealer Manager Agreement and agree as follows:
1. Defined Terms . Capitalized terms used herein and not defined herein shall have the meanings set forth in the Dealer Manager Agreement.
2. Amendments to Dealer Manager Agreement to remove references to the Minimum Offering and to Add References to Class A Shares and Class T Shares .
The introductory paragraph is hereby removed and replaced with the following :
“Strategic Storage Trust II, Inc., a Maryland corporation (the “Company”), is registering for public sale a maximum of up to $1.095 billion in shares (the “Shares”) of its common stock, $0.001 par
value per share (the “Offering”), to be issued and sold ($1.0 billion in shares to be offered to the public, consisting of Class A Shares at a purchase price of $10.00 per share (up to $500,000,000 in shares) and Class T Shares at a purchase price of $9.47 per share (up to $500,000,000 in shares), and $95 million in Shares to be offered pursuant to the Company’s distribution reinvestment plan, consisting of Class A Shares at a purchase price of $9.50 per share and Class T Shares at a purchase price of $9.00 per share). The Company reserves the right to reallocate the Shares offered among classes of Shares and between the primary offering and the distribution reinvestment plan. The minimum purchase by any one person shall be $5,000 in Shares except as otherwise indicated in the Prospectus or in any letter or memorandum from the Company to Select Capital Corporation (the “Dealer Manager”). It is anticipated that the Dealer Manager will enter into Participating Dealer Agreements in the form attached to this Dealer Manager Agreement with other broker-dealers participating in the Offering (each dealer being referred to herein as a “Dealer” and said dealers being collectively referred to herein as the “Dealers”). The Company shall have the right to approve any material modifications or addendums to the form of the Participating Dealer Agreement. Terms not defined herein shall have the same meaning as in the Prospectus. In connection therewith, the Company hereby agrees with the Dealer Manager, as follows:”
Section 3.3 is hereby removed and replaced with the following:
“3.3 Except as otherwise provided in the “Plan of Distribution” section of the Prospectus, as compensation for the services rendered by the Dealer Manager, the Company agrees that it will pay to the Dealer Manager sales commissions in the amount of 7.0% of the gross proceeds of the Class A Shares sold and 2.0% of the gross proceeds of the Class T Shares sold, plus a dealer manager fee in the amount of 3.0% of the gross proceeds of the Class A Shares and Class T Shares sold to the public. In addition, the Company agrees that it will pay to the Dealer Manager a monthly stockholder servicing fee that will accrue daily in an amount equal to 1/365 th of 1% of the purchase price per share of Class T Shares sold, excluding Class T shares sold pursuant to the distribution reinvestment plan. The Company will cease paying the stockholder servicing fee on any Class T Share on the earlier of (i) the date the Company lists its shares on a national securities exchange; the date of a merger or consolidation of the Company with or into another entity, or the sale or disposition of all or substantially all of the Company’s assets (collectively, a “Liquidity Event”), (ii) the date at which the aggregate underwriting compensation from all sources equals 10% of the gross proceeds from the sale of both Class A Shares and Class T Shares in the primary portion of the offering (i.e., excluding proceeds from sales pursuant to the distribution reinvestment plan), (iii) the fifth anniversary of the last day of the fiscal quarter in which the initial public offering (excluding the distribution reinvestment plan offering) terminates; and (iv) the date that such Class T share is redeemed or is no longer outstanding. The Dealer Manager may, in its discretion, re-allow to Dealers up to 100% of the stockholder servicing fee for services that such Dealers perform in connection with the distribution of Class T shares. Notwithstanding, if the Dealer Manager is notified that a Dealer who sold such Class T Shares is no longer the broker-dealer of record with respect to such Class T Shares, then such Dealer shall not receive the stockholder servicing fee for any portion of the month in which such Dealer is not the broker dealer of record on the last day of the month. Thereafter, such stockholder servicing fee may be reallowed by the Dealer Manager to the then-current broker-dealer of record of the Class T Shares, if any, if such broker-dealer of record has entered into an agreement with the Dealer Manager that provides for such reallowance. In this regard, all determinations will be made by the Dealer Manager in good faith in its sole discretion.
No selling commissions or dealer manager fee shall be paid with respect to Shares sold pursuant to the Company’s distribution reinvestment plan. In no event shall the total aggregate underwriting compensation payable to the Dealer Manager and any Dealers participating in the Offering, including, but not limited to, sales commissions, the dealer manager fee, stockholder servicing fee and expense reimbursements to the Dealer Manager and Dealers, exceed 10% of the gross proceeds in the aggregate at termination of the Offering. In addition, as set forth in the Prospectus, the Company may reimburse the
Dealer Manager for any amounts paid to a Dealer for bona fide due diligence expenses incurred by such Dealer. The Company shall have the right to require the Dealer Manager to provide a detailed and itemized invoice as a condition to the reimbursement of any such due diligence expenses. The Company will not be liable or responsible to any Dealer for direct payment of commissions to any Dealer, it being the sole and exclusive responsibility of the Dealer Manager for payment of commissions to Dealers. Notwithstanding the above, at the discretion of the Company, the Company may act as agent of the Dealer Manager by making direct payment of commissions to Dealers on behalf of the Dealer Manager without incurring any liability.
Notwithstanding the foregoing, no fee, compensation or expense reimbursement may be paid by the Company to the Dealer Manager or any Dealer following the termination of this Dealer Manager Agreement in violation of FINRA Conduct Rule 5110(f)(2)(D).”
Section 12 is hereby amended to remove any references to the Minimum Offering.
3. Amendments to Participating Dealer Agreement to remove references to the Minimum Offering and to Add References to Class A Shares and Class T Shares.
The introductory paragraph is hereby removed and replaced with the following:
“Select Capital Corporation, as the dealer manager (“Dealer Manager”) for Strategic Storage Trust II, Inc. (the “Company”), a Maryland corporation, invites you (the “Dealer”) to participate in the distribution of shares of common stock (“Shares”) of the Company, consisting of Class A shares and Class T shares, subject to the following terms:”
Section III is hereby removed and replaced with the following:
“Except as may be otherwise provided for in the “Plan of Distribution” section of the Prospectus, Shares shall be offered to the public at the offering price of $10.00 per Class A Share and $9.47 per Class T Share and Shares shall be offered pursuant to the Company’s distribution reinvestment plan at $9.50 per Class A Share and $9.00 per Class T Share. Except as otherwise indicated in the Prospectus or in any letter or memorandum sent to the Dealer by the Company or Dealer Manager, a minimum initial purchase of $5,000 in Shares is required. The Shares are nonassessable.”
The first sentence of Section II is hereby removed and replaced with the following:
“Those persons who purchase Shares will be instructed by the Dealer to make their checks payable to Strategic Storage Trust II, Inc.”
The first paragraph of Section V is hereby removed and replaced with the following:
“Except for volume discounts and described in the “Plan of Distribution” section of the Prospectus, which volume discounts shall be the responsibility of the Dealer to provide to investors who qualify, and other special circumstances described in or otherwise provided in the “Plan of Distribution” section of the Prospectus, the Dealer’s sales commission applicable to the Shares sold by Dealer which it is authorized to sell hereunder is 7.0% of the gross proceeds of the Class A Shares sold by it and accepted and confirmed by the Company and 2.0% of the gross proceeds of the Class T Shares sold by it and accepted and confirmed by the Company, which commission will be payable by the Dealer Manager. In addition, the Dealer will be paid a monthly stockholder servicing fee that will accrue daily in an amount equal to 1/365 th of 1% of the purchase price per Share, of Class T Shares sold, excluding Class T Shares sold pursuant to the distribution reinvestment plan. The Dealer will no longer be entitled to the
stockholder servicing fee on the earlier of (i) the date the Company effects a Liquidity Event, (ii) the date at which the aggregate underwriting compensation from all sources equals 10% of the gross proceeds from the sale of both Class A Shares and Class T Shares in the Company’s primary offering (i.e., excluding proceeds from sales pursuant to the distribution reinvestment plan), (iii) the fifth anniversary of the last day of the fiscal quarter in which the initial public offering (excluding the distribution reinvestment plan offering) terminates, and (iv) the date that such Class T share is redeemed or is no longer outstanding. The Dealer Manager may, in its discretion, re-allow to Dealers up to 100% of the stockholder servicing fee for services that such Dealers perform in connection with the distribution of Class T shares. Notwithstanding, if the Dealer Manager is notified that a Dealer who sold such Class T Shares is no longer the broker-dealer of record with respect to such Class T Shares, then such Dealer shall not receive the stockholder servicing fee for any portion of the month in which such Dealer is not the broker dealer of record on the last day of the month. Thereafter, such stockholder servicing fee may be reallowed by the Dealer Manager to the then-current broker-dealer of record of the Class T Shares, if any, if such broker-dealer of record has entered into an agreement with the Dealer Manager that provides for such reallowance. In this regard, all determinations will be made by the Dealer Manager in good faith in its sole discretion. No sales commissions shall be paid with respect to Shares issued and sold pursuant to the Company’s distribution reinvestment plan. For these purposes, shares shall be deemed to be “sold” if and only if a transaction has closed with a subscriber for Shares pursuant to all applicable offering and subscription documents, the Company has accepted the subscription agreement of such subscriber, and such Shares have been fully paid for. The Dealer affirms that the Dealer Manager’s liability for commissions payable is limited solely to the proceeds of commissions receivable from the Company, and the Dealer hereby waives any and all rights to receive payment of commissions due until such time as the Dealer Manager is in receipt of the commission from the Company. In addition, as set forth in the Prospectus, the Dealer Manager may, in its sole discretion, re-allow a portion of its dealer manager fee to Dealers participating in the offering of Shares as marketing fees, reimbursement of costs and expenses of attending educational conferences or to defray other distribution-related expenses.”
4. Amendment. This Amendment may not be amended or modified except in writing signed by all parties. In accordance with Section XVI of the Participating Dealer Agreement, this Amendment shall be deemed accepted and agreed to by Dealer upon placing an order for sale of Class A Shares or Class T Shares after receipt of this Amendment.
5. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of California.
6. Counterparts. This Amendment may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute a single instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date and year first above written.
| COMPANY: | ||
| STRATEGIC STORAGE TRUST II, INC. | ||
| By: |
/s/ H. Michael Schwartz |
|
| H. Michael Schwartz | ||
| Chief Executive Officer | ||
| DEALER MANAGER: | ||
| SELECT CAPITAL CORPORATION | ||
| By: |
/s/ James M. Walsh |
|
| James M. Walsh | ||
| Chief Executive Officer | ||
Exhibit 3.1
STRATEGIC STORAGE TRUST II, INC.
ARTICLES OF AMENDMENT
THIS IS TO CERTIFY THAT:
FIRST : The charter (the “Charter”) of Strategic Storage Trust II, Inc., a Maryland corporation (the “Corporation”), is hereby amended to change the designation of the Corporation’s common stock, $0.001 par value per share, to Class A Common Stock, $0.001 par value per share. All references in the Charter to “Common Stock” and “Common Stockholders” are hereby changed to “Class A Common Stock” and “Class A Common Stockholders,” respectively.
SECOND : The amendment to the Charter as set forth above has been duly advised and approved by at least a majority of the entire Board of Directors as required by law. The amendment set forth herein is made without action by the stockholders of the Corporation, pursuant to Section 2-605(a)(2) of the Maryland General Corporation Law.
THIRD : There has been no increase in the authorized shares of stock of the Corporation effected by the amendment to the Charter as set forth above.
FOURTH : The undersigned acknowledges these Articles of Amendment to be the corporate act of the Corporation and as to all matters or facts required to be verified under oath, the undersigned acknowledges that to the best of his knowledge, information and belief, these matters and facts are true in all material respects and that this statement is made under the penalties for perjury.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Corporation has caused these Articles of Amendment to be signed in its name and on its behalf by its President and attested to by its Secretary on this 28 th day of September, 2015.
| ATTEST: | STRATEGIC STORAGE TRUST II, INC. | |||||
|
/s/ Paula Mathews |
By: |
/s/ H. Michael Schwartz |
||||
| Name: Paula Mathews | Name: H. Michael Schwartz | |||||
| Title: Secretary | Title: President | |||||
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Exhibit 3.2
STRATEGIC STORAGE TRUST II, INC.
ARTICLES SUPPLEMENTARY
Strategic Storage Trust II, Inc., a Maryland corporation (the “Corporation”), hereby certifies to the State Department of Assessments and Taxation of Maryland that:
FIRST : Under a power contained in Section 5.2 of Article V of the charter of the Corporation (the “Charter”), the Board of Directors of the Corporation (the “Board of Directors”), by duly adopted resolutions, reclassified 350,000,000 authorized but unissued shares of Class A Common Stock, $0.001 par value per share, of the Corporation (the “Class A Common Stock”) as shares of Class T Common Stock, $0.001 par value per share, of the Corporation (the “Class T Common Stock”), with the following preferences, rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications, or terms or conditions of redemption, which, upon any restatement of the Charter, shall become part of Article V of the Charter, with any necessary or appropriate renumbering or relettering of the sections or subsections hereof. The total numbers of shares of Class A Common Stock and Class T Common Stock which the Corporation has authority to issue after giving effect to these Articles Supplementary are 350,000,000 and 350,000,000, respectively. There has been no increase in the authorized shares of stock of the Corporation effected by these Articles Supplementary. Unless otherwise defined below, capitalized terms used below have the meanings given to them in the Charter.
Class T Common Stock
(1) Definitions . As used herein, the following terms shall have the following meanings unless the context otherwise requires:
(a) Dealer Manager . The Person selected by the board of directors to act as the dealer manager for an offering of Stock.
(b) Dealer Manager Fee . The dealer manager fee payable to the Dealer Manager in connection with the sale of Stock, as described in the Corporation’s most recent Prospectus for an offering of such Stock.
(c) Stockholder Servicing Fee . The stockholder servicing fee on the Class T Common Stock payable to the Dealer Manager and to be re-allowed to participating broker-dealers, as described in the Corporation’s most recent Prospectus for an offering of Class T Common Stock (or, if the Corporation is not then engaged in an offering of Class T Common Stock, then as described in the Corporation’s periodic filings with the Securities and Exchange Commission).
(d) Net Asset Value Per Share of Class T Common Stock . The net asset value of the Corporation allocable to the Class T Common Stock, determined as described in the Corporation’s most recent Prospectus for an offering of Class T Common Stock (or, if the Corporation is not then engaged in an offering of Class T Common Stock and the calculation
methodology has been amended by the board of directors, then as described in the Corporation’s periodic filings with the Securities and Exchange Commission), divided by the number of outstanding shares of Class T Common Stock.
(e) Sales Commission . The commission payable to underwriters, dealer managers or other broker-dealers in connection with the sale of Stock, including, without limitation, the commission payable to the Dealer Manager and to be re-allowed to participating broker-dealers.
(2) Treatment as Class A Common Stock . Except as set forth in Sections 3, 4 and 5 below, the Class T Common Stock shall have identical preferences, rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications, and terms and conditions of redemption as the Class A Common Stock and all provisions of the Charter applicable to the Class A Common Stock, including, without limitation, the provisions of Articles V and VI, shall apply to the Class T Common Stock.
(3) Rights Upon Liquidation . The holder of each share of Class T Common Stock shall be entitled to be paid, out of the assets of the Corporation that are legally available for distribution to the Stockholders, a liquidation payment equal to the Net Asset Value Per Share of Class T Common Stock.
(4) Distributions . The per share amount of any distribution on the Class T Common Stock in relation to the per share amount of any distribution on the Class A Common Stock shall be determined as described in the Corporation’s most recent Prospectus for an offering of Class T Common Stock (or, if the Corporation is not then engaged in an offering of Class T Common Stock, then as described in the Corporation’s periodic filings with the Securities and Exchange Commission).
(5) Fees and Commission . Each share of Class T Common Stock shall be subject to a Sales Commission and a Dealer Manager Fee as described in the Corporation’s most recent Prospectus for an offering of Class T Common Stock. Each share of Class T Common Stock (other than a share of Class T Common Stock sold pursuant to a distribution reinvestment plan) shall be subject to a Stockholder Servicing Fee as described in the Corporation’s most recent Prospectus for an offering of Class T Common Stock (or, if the Corporation is not then engaged in an offering of Class T Common Stock, then as described in the Corporation’s periodic filings with the Securities and Exchange Commission).
SECOND : A description of the Class A Common Stock is contained in the Charter.
THIRD : The Class T Common Stock has been reclassified by the Board of Directors under the authority contained in the Charter.
FOURTH : These Articles Supplementary have been approved by the Board of Directors in the manner and by the vote required by law.
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FIFTH : The undersigned acknowledges these Articles Supplementary to be the corporate act of the Corporation and, as to all matters or facts required to be verified under oath, the undersigned acknowledges that, to the best of his knowledge, information and belief, these matters and facts are true in all material respects and that this statement is made under the penalties for perjury.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Corporation has caused these Articles Supplementary to be signed in its name and on its behalf by its President and attested to by its Secretary on this 28 th day of September, 2015.
| ATTEST: | STRATEGIC STORAGE TRUST II, INC. | |||||
|
/s/ Paula Mathews |
By: |
/s/ H. Michael Schwartz |
||||
| Name: Paula Mathews | Name: H. Michael Schwartz | |||||
| Title: Secretary | Title: President | |||||
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Exhibit 10.1
AMENDMENT NO. 2 TO THE SECOND AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
STRATEGIC STORAGE OPERATING PARTNERSHIP II, L.P.
In accordance with Section 4.2(a)(i) and Article 12 of the Second Amended and Restated Limited Partnership Agreement, effective as of November 3, 2014 (the “ Partnership Agreement ”), of Strategic Storage Operating Partnership II, L.P. (the “ Partnership ”), the Partnership Agreement is hereby amended by this Amendment No. 2 thereto (this “ Amendment ”) to reflect certain changes in share classification of Strategic Storage Trust II, Inc. (the “ General Partner ”). Capitalized terms used and not otherwise defined herein shall have the meanings set forth in the Partnership Agreement.
WHEREAS, the Partnership Agreement has previously been amended by Amendment No. 1 dated November 3, 2014 (“ Amendment No. 1 ”), which established a series of up to 2,600,000 Preferred Units of the Partnership;
WHEREAS, the General Partner has filed, on the date herewith, Articles of Amendment to change the designation of the General Partner’s common stock, $0.001 par value per share, to Class A Common Stock (the “ Class A Common Stock ”) and Articles Supplementary to reclassify 350,000,000 authorized but unissued shares of Class A Common Stock as shares of Class T Common Stock, $0.001 par value per share, of the General Partner (the “ Class T Common Stock ”), with the preferences, rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications, or terms or conditions of redemption described therein;
WHEREAS, the parties hereto desire to reflect certain changes in share classification and other changes by amending the Partnership Agreement as previously amended by Amendment No. 1, by entering into this Amendment.
NOW THEREFORE, in consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
Section 1. Amendments to Defined Terms
| A. | The following are hereby added as additional defined terms in the Partnership Agreement: |
Class A REIT Shares means the REIT Shares classified as Class A common stock in the Charter.
Class A Unit means a Partnership Unit entitling the holder thereof to the rights of a holder of a Class A Unit as provided in this Agreement.
Class T REIT Shares means the REIT Shares classified as Class T common stock in the Charter.
1
Class T Unit means a Partnership Unit entitling the holder thereof to the rights of a holder of a Class T Unit as provided in this Agreement.
Exchanged REIT Shares has the meaning set for in Section 7.1(e) hereof.
Received REIT Shares has the meaning set forth in Section 7.1(e) hereof.
Stockholder Servicing Fee has the meaning set forth in the General Partner’s prospectus.
| B. | The following definitions are hereby revised and restated defined terms in the Partnership Agreement: |
Conversion Factor means 1.0, provided that in the event that the General Partner (i) declares or pays a dividend on its outstanding REIT Shares in REIT Shares or makes a distribution to all holders of its outstanding REIT Shares in REIT Shares, (ii) subdivided its outstanding REIT Shares, or (iii) combines its outstanding REIT Shares into a smaller number of REIT Shares, the Conversion Factor shall be adjusted by multiplying the Conversion Factor by a fraction, the numerator of which shall be the number of REIT Shares issued and outstanding on the record date for such dividend, distribution, subdivision or combination (assuming for such purposes that such dividend, distribution, subdivision or combination has occurred as of such time), and the denominator of which shall be the actual number of REIT Shares (determined without the above assumption) issued and outstanding on such date and, provided further, that in the event that an entity other than an Affiliate of the General Partner shall become General Partner pursuant to any merger, consolidation or combination of the General Partner with or into another entity (the “Successor Entity”), the Conversion Factor shall be adjusted by multiplying the Conversion Factor by the number of shares of the Successor Entity into which one REIT Share is converted pursuant to such merger, consolidation or combination, determined as of the date of such merger, consolidation or combination. Any adjustment tot eh Conversion Factor shall become effective immediately after the effective date of such event retroactive to the record date, if any, for such event; provided, however, that if the General Partner receives a Notice of Exchange after the record date, but prior to the effective date of such dividend, distribution, subdivision or combination, the Conversion Factor shall be determined as if the General Partner had received the Notice of Exchange immediately prior to the record date for such dividend, distribution, subdivision or combination. A separate Conversion Factor shall be determined for each class of Partnership Units by taking into account only the outstanding REIT Shares having the same class designation as the applicable class of Partnership Units.
Invested Capital means the amount calculated by multiplying the total number of REIT Shares purchased by Stockholders by (a) the offering price for such Stock actually paid by such Stockholders in an offering or (b) for Stock not purchased in an Offering, the issue price for the Stock; in each case reduced by any Distributions attributable to Net Sale Proceeds, any Stockholder Servicing Fee attributable to the Class T REIT Shares and any amounts paid by the General Partner to repurchase shares of Stock pursuant to a plan for repurchase of the General Partner’s Stock.
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Partnership Unit means a fractional, undivided share of the Partnership Interests of all Partners issued hereunder, including Class A Units and Class T Units. Without limitation on the authority of the General Partner as set forth in Section 4.2 hereof, the General Partner may designate any Partnership Units, when issued, as Common Units or Preferred Units, may establish any other class of Partnership Units, and may designate one or more series of any class of Partnership Units. The allocation of Partnership Units of each class among the Partners shall be as set forth on Exhibit A , as such Exhibit may be amended from time to time.
REIT Share means a share of common stock, par value $0.001 per share, in the General Partner (or successor entity, as the case may be), including Class A REIT Shares and Class T REIT Shares, the terms and conditions of which are set forth in the Articles of Incorporation.
Section 2. Amendments to Article 4 of Partnership Agreement
| A. | Section 4.2(a)(i)(1) is hereby amended and restated as follows: |
(A) the additional Partnership Interests are issued in connection with an issuance of REIT Shares or other interests in the General Partner, which shares or interests have designations, preferences and other rights, all such that the economic interests are substantially similar to the designations, preferences and other rights, all such that the economic interests are substantially similar to the designations, preferences and other rights of the additional Partnership Interests issued to the General Partner by the partnership in accordance with this Section 4.2 (without limiting the foregoing, for example, the Partnership shall issue Partnership Interests consisting of Class A Units to the General Partner in connection with the issuance of Class A REIT Shares and shall issue Partnership Interests consisting of Class T Units to the General Partner in connection with the issuance of Class T REIT Shares) and (B) the General Partner shall make a Capital Contribution to the Partnership in an amount equal to the proceeds raised in connection with the issuance of such shares of stock of or other interests in the General Partner.
| B. | Section 4.2(a)(ii)(B) is hereby amended and restated as follows: |
the General Partner contributes the net proceeds from the issuance of such Additional Securities and from any exercise of rights contained in such Additional Securities, directly through the General Partner, to the Partnership (without limiting the foregoing, for example, the Partnership shall issue Limited Partnership Interests consisting of Class A Units to the General Partner in connection with the issuance of Class A REIT Shares and shall issue Limited Partnership Interests consisting of Class T Units to the General Partner in connection with the issuance of Class T REIT Shares); provided, however, that the General Partner is allowed to issue Additional Securities in connection with an acquisition of a property to be held directly by the General Partner, but if and only if, such direct acquisition and issuance of Additional Securities have been approved and determined to be in the best interests of the General Partner and the Partnership by a majority of the Independent Directors (as defined in the General Partner’s Articles of Incorporation).
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| C. | The last sentence of Section 4.2(a)(ii) is hereby amended and restated as follows: |
For example, in the event the General Partner issues REIT Shares of any class for a cash purchase price and contributes all of the proceeds of such issuance to the Partnership, the General Partner shall by issued a number of additional Partnership Units having the same class designation as the issued REIT Shares equal to the product of (A) the number of such REIT Shares of that class issued by the General Partner, the proceeds of which were so contributed, multiplied by (B) a fraction, the numerator of which is 100%, and the denominator of which is the Conversion Factor for that class of Partnership Units in effect on the date of such contribution.
| D. | The following is hereby added to the last line of Section 4.2(b): |
, and any such expenses shall be allocable solely to the class of Partnership Units issued to the General Partner at such time.
Section 3. Amendments to Article 5 of Partnership Agreement
| A. | A new Section 5.1(h) is hereby added as follows: |
(h) Special Allocations of Class-Specific Items . To the extent that any items of income, gain, loss or deduction of the General Partner are allocable to a specific class or classes of REIT Shares as provided in the General Partner’s prospectus, including, without limitation, Stockholder Servicing Fees, such items, or an amount equal thereto, shall be specially allocated to the class or classes of Partnership Units corresponding to such class or classes of REIT Shares.
| B. | The following is hereby added to the last line of Section 5.2(a)(ii): |
, provided that the aggregate distributions made hereunder to the holders of Class T Units shall be reduced (but not below zero) by the aggregate Stockholder Servicing Fee payable by the General Partner with respect to the Class T REIT Shares with respect to such Record Date.
Section 4. Amendment to Article 6 of the Partnership Agreement
Section 6.10 is hereby amended and restated as follows:
6.10 Miscellaneous . In the event the General Partner redeems any REIT Shares (other than REIT Shares redeemed in accordance with the share redemption program of the General Partner through proceeds received from the General Partner’s distribution reinvestment plan), then the General Partner shall cause the Partnership to purchase from the General Partner a number of Partnership Units as determined based on the application of the Conversion Factor on the same terms that the General Partner exchanged such REIT Shares (without limiting the foregoing, for example, the Partnership shall purchase from the General Partner Partnership Interests consisting of Class A Units in connection with the exchange
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of Class A REIT Shares and shall purchase from the General Partner Partnership Interests consisting of Class T Units in connection with the exchange of Class T REIT Shares). Moreover, if the General Partner makes a cash tender offer or other offer to acquire REIT Shares, then the General Partner shall cause the Partnership to make a corresponding offer to the General Partner to acquire an equal number of Partnership Units held by the General Partner. In the event any REIT Shares are exchanged by the General Partner pursuant to such offer, the Partnership shall redeem an equivalent number of the General Partner’s Partnership Units for an equivalent purchase price based on the application of the Conversion Factor (without limiting the foregoing, for example, the Partnership shall redeem from the General Partner Partnership Interests consisting of Class A Units in connection with the exchange of Class A REIT Shares and shall redeem from the General Partner Partnership Interests consisting of Class T Units in connection with the exchange of Class T REIT Shares).
Section 5. Amendments to Article 7 of Partnership Agreement
A new Section 7.1(e) is hereby added as follows:
(e) If the General Partner exchanges any REIT Shares of any class (“Exchanged REIT Shares”) for REIT Shares of a different class (“Received REIT Shares”), then the General Partner shall, and shall cause the Partnership to, exchange a number of Partnership Units having the same class designation as the Exchanged REIT Shares, as determined based on the application of the Conversion Factor, for Partnership Units having the same class designation as the Received REIT Shares on the same terms that the General Partner exchanged the Exchanged REIT Shares. The exchange of Units shall occur automatically after the close of business on the applicable date of the exchange of REIT Shares, as of which time the holder of class of Units having the same designation as the Exchanged REIT Shares shall be credited on the books and records of the Partnership with the issuance, as of the opening of business on the next day, of the applicable number of Units having the same designation as the Received REIT Shares.
Section 6. Continuation of Partnership Agreement
The Partnership Agreement, Amendment No. 1 and this Amendment shall be read together and shall have the same force and effect as if the provisions of the Partnership Agreement, Amendment No. 1 and this Amendment were contained in one document. Any provisions of the Partnership Agreement not amended by Amendment No. 1 or this Amendment shall remain in full force and effect as provided in the Partnership Agreement immediately prior to the date hereof. In the event of a conflict between the provisions of this Amendment and the Partnership Agreement and Amendment No. 1, the provisions of this Amendment shall control.
[ Signature Page Follows .]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment to the Partnership Agreement as of the 28 th day of September, 2015.
| STRATEGIC STORAGE OPERATING PARTNERSHIP II, L.P. | ||
| By: | Strategic Storage Trust II, Inc., its sole general partner | |
| By: |
/s/ H. Michael Schwartz |
|
| Name: H. Michael Schwartz | ||
| Title: Chief Executive Officer | ||
| STRATEGIC STORAGE TRUST II, INC. | ||
| By: |
/s/ H. Michael Schwartz |
|
| Name: H. Michael Schwartz | ||
| Title: Chief Executive Officer | ||
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