AMENDMENT NO. 1 TO DEALER MANAGER AGREEMENT AND PARTICIPATING DEALER AGREEMENT
Exhibit 1.2
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 day of , 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 1/365th 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 1/365th 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: |
| |
| Name: | ||
| Title: | ||
| DEALER MANAGER: | ||
| SELECT CAPITAL CORPORATION | ||
| By: |
| |
| Name: | ||
| Title: | ||
