Exhibit k.2
COMPUTERSHARE INVESTOR SERVICES, LLC
- AND -
USA REIT FUND LLC
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DISTRIBUTION REINVESTMENT PLAN AGENCY AGREEMENT
DECEMBER 1, 2003
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OSLER, XXXXXX AND HARCOURT LLP
DISTRIBUTION REINVESTMENT PLAN AGENCY AGREEMENT
THIS AGREEMENT made effective as of the ___ day of December, 2003.
BETWEEN:
COMPUTERSHARE INVESTOR SERVICES, LLC, a limited liability
company organized under the laws of the State of Delaware
(the "PLAN AGENT")
- and -
USA REIT FUND LLC, a limited liability company organized under
the laws of the State of Delaware
(the "COMPANY")
RECITALS:
A. USA REIT Fund LLC (the "COMPANY") is
governed by an amended and restated limited
liability company agreement (the "LLC
AGREEMENT") made as of November 25, 2003 (as
amended from time to time);
B. Pursuant to an administrative services
agreement dated as of the 25th day of
November, 2003, the Company has appointed
Brompton Capital Advisors Inc. (the
"ADMINISTRATOR") to provide certain
administrative services required for the
ongoing business and operations of the
Company and to perform such other duties as
are contemplated by the terms of the LLC
Agreement;
C. The Company wishes to appoint Computershare
Investor Services, LLC as the Company's
agent under the distribution reinvestment
plan (the "PLAN") on the terms and
conditions set out in this Agreement;
THEREFORE this Agreement witnesses that in consideration of the
respective covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereto agree as follows:
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ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS
In this Agreement, unless the context otherwise requires, the following terms
shall have the following meanings:
"ADMINISTRATOR" means Brompton Capital Advisors Inc. in its capacity as
Administrator of the Company.
"AGREEMENT" means this distribution reinvestment plan agency agreement
and includes any agreement amending this agreement or any agreement or
instrument which is supplemental or ancillary thereof, and the
expressions "ABOVE", "BELOW", "HEREIN", "HERETO", "HEREOF" and similar
expressions refer to this agreement.
"BUSINESS DAY" means any day except Saturday, Sunday or statutory
holiday in Toronto, Ontario or New York, New York.
"CDS" means The Canadian Depository for Securities Limited.
"CDS PARTICIPANT" means a participant in the CDS depository service.
"COMMON SHARE" means one common share of the Company.
"COMPANY" means USA REIT Fund LLC.
"LLC AGREEMENT" means the amended and restated limited liability
company agreement dated as of November 25, 2003 which provides for
certain matters regarding the operation and management of the Company,
as the same may be supplemented, amended or restated from time to time.
"DISTRIBUTION" means any amount payable by the Company to the
Shareholders, less any applicable withholding taxes.
"DISTRIBUTION DATE" means each date on which the Company makes a
Distribution to Shareholders.
"ENROLLMENT FORM" means a form, approved by the Company in consultation
with the Plan Agent, to be completed by a Shareholder to enable such
Shareholder to participate in the Plan.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means the generally accepted
accounting principles from time to time approved by the Financial
Accounting Standards Board applicable as at the date on which any
calculation is made or required to be made in accordance with generally
accepted accounting principles applied on a basis consistent with
preceding years.
"NET ASSET VALUE" means the net asset value of the Company to be
determined in accordance with the LLC Agreement.
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"NYSE" means the New York Stock Exchange.
"PARTIES" means the Company and the Plan Agent and "PARTY" means one of
them.
"PERSON" includes an individual, a partnership, a corporation, a trust,
a joint venture, an unincorporated organization, a union, a government
or any department or agency thereof and the heirs, executors,
administrators or other legal representatives of an individual.
"PLAN" means the Distribution Reinvestment Plan of the Company
effective as of the date hereof, as the same may be amended from time
to time.
"PLAN AGENT" means Computershare Investor Services, LLC or its
successor or assigns, as agent under the Plan.
"PLAN PARTICIPANT" means a Shareholder who has notified the Plan Agent
via CDS of such Shareholder's intention to participate in the Plan in
respect of any Distribution.
"PLAN SHARES" means whole Common Shares purchased under the Plan by a
Plan Participant through the applicable CDS Participant through which
such Plan Participant holds his or her Common Shares.
"RECORD DATE" means the last Business Day of each month.
"SHAREHOLDER" means any holder of Common Shares registered in the name
of CDS pursuant to the LLC Agreement, including any beneficial owner of
such Common Shares, provided that all rights of such beneficial owners
in respect of such Common Shares must be exercised solely through CDS
as registered holder thereof and the Company may deal solely with CDS
in respect of Common Shares registered in its name as though CDS were
the sole Shareholder in respect thereof.
"TSX" means the Toronto Stock Exchange.
1.2 REFERENCES
References to Articles, Sections, Subsections or Schedules refer to articles,
sections, subsections or schedules of this Agreement.
1.3 CANADIAN DOLLARS
All dollar amounts referred to in this Agreement are in Canadian funds, unless
otherwise indicated herein. All payments contemplated herein by the Company
shall be by cheque, wire transfer or bank draft or such other transfer of
immediately available funds as may be acceptable to the Plan Agent.
1.4 EXTENDED MEANINGS
In this Agreement, words importing the singular number include the plural and
vice versa; words importing the masculine gender include the feminine and neuter
genders; the use of the word "INCLUDE" or "INCLUDING" shall be deemed to include
"INCLUDE, WITHOUT LIMITATION", or "INCLUDING, WITHOUT LIMITATION", as
applicable; and references to any statute shall extend to and include
orders-in-council or regulations passed under and pursuant thereto, of any
amendment or
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re-enactment of such statute, orders-in-council or regulations, or
any statute, order-in-council or regulations substantially in replacement
thereof.
1.5 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties pertaining
to the subject matter hereof and supersedes all prior and contemporaneous
agreements, understandings, negotiations and discussions, whether oral or
written, of the Parties, and there are no warranties, representations or other
agreements between the Parties in connection with the subject matter hereof,
except as specifically set forth herein. No amendment, supplement, modification,
waiver or termination of this Agreement shall be binding unless executed in
writing by the Party to be bound thereby.
1.6 CONFLICTS
If there is any conflict or inconsistency between a provision of the body of
this Agreement and that of any Schedule, the provision of the body of this
Agreement shall prevail. If any term or condition of this Agreement conflicts
with applicable law, applicable law shall prevail, and this Agreement shall be
deemed to be amended to the extent required to eliminate any such conflict.
1.7 ACCOUNTING REFERENCES
Where the character or amount of any asset or liability or item of income or
expense is required to be determined or any consolidation or other accounting
computation is required to be made for the purposes of this Agreement, the same
shall be done in accordance with Generally Accepted Accounting Principles except
where the application of such principles is inconsistent with, or limited by,
the terms of this Agreement.
1.8 COMPUTATION OF TIME PERIODS
Except as expressly set out in this Agreement, the computation of any period of
time referred to in this Agreement shall exclude the first day and include the
last day of such period. If the time limited for the performance or completion
of any matter under this Agreement expires or falls on a day that is not a
Business Day, the time so limited shall extend to the next following Business
Day.
1.9 HEADINGS
The insertion of headings and the division of this Agreement into Articles,
Sections, Subsections and Schedules are not to be considered part of this
Agreement and are included solely for convenience of reference and are not
intended to be full or accurate descriptions of the contents hereof.
ARTICLE 2
THE PLAN AGENT SERVICES
2.1 APPOINTMENT OF THE PLAN AGENT
The Company hereby appoints the Plan Agent as administrative agent and record
keeper for and on behalf of the Company for the purposes of administering and
maintaining the records
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pertaining to the accounts of Plan Participants under the Plan. The Plan Agent
hereby accepts the appointment, and the Parties agree to perform their
respective functions as set forth in this Agreement, upon the terms and
conditions set forth herein.
2.2 SPECIFIC RESPONSIBILITIES AND DUTIES OF THE PLAN AGENT
The Plan Agent agrees to be bound by the terms and conditions of this Agreement
and, without limiting the generality of the services to be performed by the Plan
Agent, the Plan Agent accepts the duties and responsibilities outlined below:
(a) upon receipt of elections from CDS made on behalf of
Shareholders through the applicable CDS Participant, enroll
such account(s) as a Plan Participant(s). Such elections must
be received by the Plan Agent not less than two (2) Business
Days prior to a Record Date. Any elections received following
such date shall be considered for enrollment in the next
Distribution;
(b) establish and maintain records for the Plan;
(c) purchase Plan Shares for Plan Participants through the
facilities of the TSX, via the applicable CDS Participant's
account, with Distributions otherwise payable in cash by the
Company to such Plan Participants;
(d) cause CDS to credit the appropriate CDS Participant's account
with the appropriate number of Plan Shares purchased on behalf
of a Plan Participant and notify the Administrator in writing
of the total number of Plan Shares purchased in respect of
each Distribution;
(e) issue a cash adjustment for any uninvested Distributions to
CDS on a monthly basis to be credited to the Plan Participants
via the applicable CDS Participants;
(f) respond on a timely basis to all inquiries regarding the Plan
on behalf of the Company;
(g) provide to the Administrator, or such other party designated
by the Company, on a regular and timely basis as requested by
the Administrator or such other party designated to act on
behalf of the Company, any information regarding Plan Shares
purchased under the Plan, including any information required
to fulfil applicable requirements of securities regulatory
authorities and stock exchanges;
(h) maintain appropriate records to facilitate the preparation of,
and prepare and deliver, annual Canadian tax information forms
to CDS Participants, which indicate the income received, and
shall provide the Company with reports in a manner as mutually
agreed;
(i) deposit in separate accounts the cash balance provided by the
Company, upon which no interest shall be accounted for, earned
or payable to the Plan Participant or the Company;
(j) notify, as soon as practicable, in writing and at its own
cost, all Plan Participants via the applicable CDS
Participant, the Company and the Administrator of any
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change in the Plan Agent's address or telephone number which
appears in any Plan documents; and
(k) generally, carry out all such other duties as are set out
herein.
2.3 NO U. S. PLAN PARTICIPANTS
The Plan Agent acknowledges that the Plan is not available to United States
residents and agrees to use reasonable efforts to prevent United States
residents from becoming Plan Participants. Notwithstanding anything contained
herein, the Plan Agent shall incur no liability in connection with ensuring the
residency of Plan Participants.
2.4 EXPRESS DUTIES
The Plan Agent shall have no duties or obligations except as expressly provided
in this Agreement and, for greater certainty, the Plan Agent shall have no
duties or responsibilities arising under any other agreement, including the
Plan, to which the Plan Agent is not a party.
2.5 LEGAL ADVICE AND APPOINTMENT OF ADVISORS
The Plan Agent is hereby authorized, at its discretion, as it may reasonably
require for the purpose of discharging its duties or determining its rights
hereunder to refer any matter to the Company, the Company's legal counsel, or
the legal counsel for the Plan Agent for direction and advice and to retain
consultants, experts, advisors, agents or agencies, brokers or organizations,
including organizations related to the Plan Agent. All reasonable costs and
expenses incurred pursuant to this Section shall be at the expense of the
Company. The Plan Agent shall be entitled to act and rely upon, and shall be
fully protected in acting and relying upon, the services and advice provided
pursuant to this Section.
2.6 PROTECTION OF THE PLAN AGENT
Without derogating from any other right of the Plan Agent as set out or
described under this Agreement or otherwise, the Plan Agent shall:
(a) retain the right not to act and shall not be liable for
refusing to act unless it has received clear instructions
and/or documentation and sufficient time to give effect to
such instructions and/or documentation;
(b) disburse funds hereunder only to the extent that funds have
been deposited with it;
(c) if any funds are received by it in the form of uncertified
cheques, be entitled to delay the time for release of such
funds until such uncertified cheques shall be determined to
have cleared the financial institution upon which the same are
drawn;
(d) incur no liability with respect to the delivery or
non-delivery by the Plan Agent or its agents of any Common
Share certificate or cheque whether delivered by hand, mail or
other means, which shall be at the risk of the intended
recipient; and
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(e) if it shall hold any amount on account of any distributable
amount which is unclaimed or cannot be paid for any reason or
re-invested in accordance with the Plan, be under no
obligation to invest or reinvest the same but shall only be
obliged to hold same in a current or other non-interest
bearing account pending payment to the Person or Persons
entitled thereto, and shall be entitled to retain for its own
account any benefit earned by the holding of same.
2.7 TAX
The Company shall be solely responsible for all tax processing relating to or
arising from the duties or actions contemplated by this Agreement, including
evaluation, reporting, remittance, filing, and issuance of tax slips, summaries
and reports, except as is specifically delegated to the Plan Agent pursuant to
this Agreement or as may be agreed subsequently, as confirmed in writing by the
Parties. The Plan Agent shall process only such tax matters as have been
specifically delegated to it pursuant to this Agreement or as may be agreed
subsequently, and, in doing, the Plan Agent does not undertake to carry out any
inquiry, evaluation, reporting, remittance, filing or issuance of tax slips,
summaries and reports necessarily incidental thereto, which shall remain the
sole responsibility of the Company. The Plan Agent shall be entitled to rely
upon and assume, without further inquiry or verification, the accuracy and
completeness of any tax processing information, documentation or instructions
received by the Plan Agent, directly or indirectly, from or on behalf of the
Company or the Plan Participant. It is agreed that any direction must be
supplied to the Plan Agent prior to processing any entitlement or filing.
ARTICLE 3
FEES AND EXPENSES
3.1 SECTION 3.1 REMUNERATION
The Company shall pay to the Plan Agent charges for the administration of the
Plan as agreed to in writing from time to time by the Plan Agent and the Company
or a party designated to act on behalf of the Company and all of the Plan
Agent's reasonable expenses (collectively the "FEES") within thirty (30) days of
the date of the Plan Agent's invoice which for greater certainty shall form part
of and be included in the fees payable by the Company to the Plan Agent pursuant
to the terms of a transfer agency agreement between the parties dated the date
hereof. The Company acknowledges that late payment may be subject to interest
charges as indicated on the invoice. In the event that the Company is more than
sixty (60) days late in paying an invoice, commencing from the invoice date, the
Plan Agent may immediately suspend its services or terminate this Agreement for
non-payment ("NON-PAYMENT"), following written notice from the Plan Agent,
subject to a ten (10) day cure period. In the event of Non Payment, the Plan
Agent is hereby authorized to deduct all fees owed to it, in an equitable
manner, from the Plan accounts maintained for the Company. No such deduction by
the Plan Agent shall operate as a curing of Non Payment. In addition to the
services specified in this Agreement, the Parties may agree from time to time
that the Plan Agent shall perform other services for the Company in connection
with the Plan. Charges for additional services shall be in accordance with the
Plan Agent's then current fees for such services and shall constitute Fees of
the Plan Agent as set out herein. The Company agrees that the Fees of the Plan
Agent are confidential information. As such, the Company agrees not to disclose
such Fees to a third party without the Plan Agent's prior written consent, save
and except as required by law.
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ARTICLE 4
RELIANCE, INDEMNITY AND LIMITATIONS UPON LIABILITY
4.1 RELIANCE BY THE PLAN AGENT ON DOCUMENTS AND DIRECTIONS
The Plan Agent may act and rely, and shall be protected in acting and relying
upon, any notice, direction, instruction, duly completed Enrollment Form, order,
request, consent, receipt, opinion, statutory declaration or other paper or
document furnished to it. The Plan Agent may refer matters to the Company for
direction. The Plan Agent may rely and act on any document believed by it to be
genuine and to have been signed or presented by the proper Person. The Plan
Agent need not investigate any fact or matter stated in any document. However,
before acting or refraining from acting, the Plan Agent may require a
certificate from an appropriate officer of the Company or a party designated to
act on behalf of the Company or an opinion of counsel, where it reasonably deems
the same to be necessary. The Plan Agent may rely and act upon any opinion,
information or advice provided by any counsel or expert, who may from time to
time be appointed by the Plan Agent and shall be fully protected for so doing.
4.2 AGENCY RELATIONSHIP
In incurring any debts, liabilities or obligations, or in taking or omitting to
take any other actions for or in connection with the affairs of the Company or
any Plan Participant in accordance with this Agreement, the Plan Agent, is and
shall be deemed to be acting for and on behalf of the Company or such Plan
Participant, respectively, and not in its own personal capacity and, as such,
shall not be held to any personal liability, nor shall resort be had to its
property or assets for satisfaction of any obligation or claim arising out of or
in connection with this Agreement.
4.3 LIMITATION OF LIABILITY
(a) The Plan Agent will not be liable to the Company for any
action taken or omitted to be taken by it under or in
connection with this Agreement, except for losses directly,
principally and immediately caused by its bad faith, wilful
misconduct, negligence or disregard of its standard of care or
of its obligations and duties hereunder. Notwithstanding the
generality of the foregoing, the Plan Agent will not be liable
under any circumstances whatsoever for any (i) breach by any
other party of securities law or other rule of any securities
regulatory authority, (ii) promises made to the Plan
Participants by any other party, (iii) market loss or
diminution in value of assets held in accordance with this
Agreement, (iv) lost profits, or (v) special, indirect,
incidental, consequential, exemplary, aggravated or punitive
losses or damages.
(b) Notwithstanding the aforementioned, any liability of the Plan
Agent shall be limited, in the aggregate, to the amount of
fees paid by the Company to the Plan Agent under this
Agreement in the twelve (12) months immediately preceding the
date of receipt by the Plan Agent of the first notice of the
claim.
(c) The Company acknowledges that the remuneration received by the
Plan Agent under this Agreement has been established based,
among other things, on the limits on liability set out herein.
(d) The provisions of this Section 4.3 shall survive termination
of this Agreement.
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4.4 INDEMNIFICATION OF THE PLAN AGENT
(a) Subject to Section 4.4(c), the Plan Agent and any director,
officer and employee thereof, (collectively, the "INDEMNIFIED
PARTIES"), shall be indemnified and reimbursed by the Company
against liabilities and expenses (including judgments, fines,
penalties, interest, amounts paid in settlement with the
consent of the Company and reasonable counsel fees and
disbursements on a solicitor and client basis) reasonably
incurred in connection with any action, suit or proceeding to
which any Indemnified Party may hereafter be made a party by
reason of being or having been the Plan Agent, or a director,
officer or employee thereof, except for liabilities and
expenses resulting from the Indemnified Party's willful
misconduct, bad faith, negligence, disregard of its duties or
standard of care, or material breach or default of this
Agreement.
(b) For purposes of the preceding paragraph, (i) "action, suit or
proceeding" shall include every action, suit or proceeding,
civil, criminal, administrative, or investigative, (ii) the
right of indemnification conferred thereby shall extend to any
threatened action, suit or proceeding and the failure to
institute it shall be deemed its final determination, (iii)
advances may be made by the Company against costs, expenses
and fees incurred in respect of the matter or matters as to
which indemnification is claimed, provided that any advance
shall be made only if the Company receives an opinion of
independent counsel to the effect that, on the basis of the
facts known to such counsel that the Plan Agent or director,
officer or employee thereof is entitled to indemnification
under this Section 4.4. The foregoing right of indemnification
shall not be exclusive of any other rights to which the Plan
Agent or director, officer, employee, consultant or agent
thereof may be entitled as a matter of law or which may be
lawfully granted to such Person and the provisions of this
Section 4.4 are severable, and if any provisions hereof shall
for any reason be determined invalid or ineffective, the
remaining provisions of this Agreement relating to
indemnification and reimbursement shall not be affected
thereby.
(c) The Plan Agent agrees that the Company shall have no liability
to reimburse any Person for transfer or other taxes or fees
payable on the transfer of Common Shares, fees relating to any
distribution reinvestment plan or any income or other taxes
assessed against any Person by reason of ownership or
disposition of Common Shares, or for any losses suffered by
reason of changes in the market value or Net Asset Value of
Common Shares.
This Section 4.4 shall survive termination of this Agreement.
ARTICLE 5
OBLIGATIONS OF THE COMPANY
5.1 OBLIGATIONS OF THE COMPANY
The Company or a party designated to act on behalf of the Company shall:
(a) comply with the provisions of the Plan;
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(b) comply with all applicable laws in connection with the
adoption, implementation and operation of the Plan;
(c) notify all Shareholders annually in writing via the applicable
CDS Participant of their right to participate in the Plan and
instruct them how such participation may be effective;
(d) select a Record Date which is no more than fifteen (15)
Business Days prior to the applicable Distribution Date;
(e) advise the Plan Agent of the Record Date and Distribution Date
in writing not less than ten (10) days prior to the
Distribution Date;
(f) ensure that the acquisition, issuance or trading of securities
under the Plan and all trade instructions received does and
shall comply in all material respects with all applicable
securities laws and requirements of all securities regulatory
authorities, applicable exchanges, securities markets and
self-regulatory organization;
(g) provide the Plan Agent with sufficient cash balance, in an
amount determined solely by the Plan Agent, acting reasonably,
so that at all times during the continuation of the Plan the
Plan Agent will have sufficient cash available to among other
things (i) purchase Plan Shares in the market, (ii) make
payment for any fractional Plan Shares, and (iii) pay any
commission costs relating to the Plan;
(h) in addition to providing such cash balance as provided
pursuant to subparagraph 5.1 (g), indemnify and save harmless
the Plan Agent and reimburse the Plan Agent for any additional
losses, costs or expenses incurred as a result of any of the
matters referred to in this Section 5.1; and
(i) not issue any Plan Shares from the treasury of the Company
without first obtaining all regulatory approval to do so and
amending this Agreement as may be required to permit the
acquisition of Plan Shares issued from the treasury of the
Company.
ARTICLE 6
AMENDMENT, SUSPENSION AND TERMINATION OF THE PLAN
6.1 AMENDMENT, SUSPENSION OR TERMINATION
(a) The Company or a party designated to act on behalf of the
Company may, in consultation with the Plan Agent, adopt
additional rules and regulations to facilitate the
administration of the Plan, which shall, once adopted, be
deemed to form part of this Agreement. The Company may also
amend the Plan or this Agreement at any time in its sole
discretion, provided that (i) if the amendment is material to
Plan Participants, at least 3 days notice thereof shall be
given to Plan Participants via the applicable CDS Participant
and to the Plan Agent, and (ii) if the amendment is not
material to Plan Participants, notice thereof may be given to
Plan Participants and to the Plan Agent after effecting the
amendment. Notwithstanding the preceding, no amendment will
have the effect of modifying
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any duties or responsibilities of the Plan Agent without the
Plan Agent's prior written consent.
(b) Notwithstanding the foregoing, the Plan Agent acknowledges
that the Company reserves the right in its sole discretion to
suspend the Plan at any time, in which case the Company or a
party designated to act on behalf of the Company shall give
all Plan Participants via the applicable CDS Participant and
the Plan Agent written notice thereof. In the event of such a
suspension of the Plan:
(i) all purchases of Plan Shares by the Plan agent
through the facilities of the TSX, via the applicable
CDS Participant's account, with Distributions
otherwise payable in cash by the Company to such Plan
Participants shall be suspended;
(ii) all Distributions which would otherwise be applied to
the purchase of Plan Shares by the Plan Agent shall
be promptly paid over to Plan Participants originally
entitled thereto via the applicable CDS Participants;
and
(iii) the only actions that may be taken by the Plan Agent
under this Agreement shall be the Plan Agent's duties
pursuant to subsections 2.2(d), (f), (g) and (i)
until the Company or a party designated to act on
behalf of the Company gives notice of the
reactivation of the Plan.
(c) Notwithstanding the foregoing, the Plan Agent acknowledges
that the Company reserves the right in its sole discretion to
terminate the Plan at any time, upon not less than 30 days'
notice to the Plan Participants via the applicable CDS
Participant and the Plan Agent.
(d) The Company, or the Administrator on the Company's behalf, may
also amend, modify of suspend the Plan at any time in its sole
discretion, provided that it complies with the foregoing
requirements and gives notice of that amendment, modification
or suspension to: (i) CDS Participants through which the Plan
Participants hold their Shares; (ii) the Plan Agent; and (iii)
the Toronto Stock Exchange.
ARTICLE 7
RESIGNATION OR REMOVAL OF THE PLAN AGENT
7.1 RESIGNATION OR REMOVAL OF THE PLAN AGENT
Subject to Section 3.1, the Company may remove the Plan Agent or the Plan Agent
may resign any time upon not less than ninety (90) days prior notice to the Plan
Agent or the Company, as the case may be, or upon such lesser period as may be
otherwise provided herein or as mutually agreed to by the Company and the Plan
Agent. On or prior to the end of such notice period, the Company may appoint a
successor to the Plan Agent to act as the administrative agent for the Plan and
to which the Plan Agent shall, at the request of the Company, deliver the
property and records held in connection with this Agreement, but only after full
payment of all outstanding fees and expenses of the Plan Agent under this
Agreement has been received by the Plan Agent from the Company or deducted by
the Plan Agent from the Plan accounts in accordance with Section 3.1 hereof
prior to any transfer to such successor. The Plan Agent shall be discharged of
all duties and obligations under this Agreement upon the earlier of the
expiration of the notice period or upon returning all property and records held
in connection with the Plan and this Agreement to the Company or its designate.
Where the Company fails to appoint a successor to the Plan Agent on or prior to
the end of the applicable notice period under this Section 7.1, the provisions
of Section 6.1(b) shall apply as if the Plan were terminated.
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ARTICLE 8
GENERAL
8.1 GOVERNING LAW
This Agreement shall be construed in accordance with the laws of the State of
Delaware. Each Party accedes and submits to the jurisdiction of the courts of
Delaware and all courts of appeal therefrom.
8.2 COUNTERPARTS
This Agreement may be executed in several counterparts and evidenced by a
facsimile copy of an original execution page bearing the signature of each
Party, each of which when so executed shall be deemed to be an original, and
such counterparts or facsimile copies thereof together shall comprise one and
the same instrument and, notwithstanding their date of execution, shall be
deemed to bear the date as of the date above written.
8.3 ASSIGNMENT
The Parties hereby undertake not to assign their duties and responsibilities
except upon securing the prior approval of the other party, which approval shall
not be unreasonably withheld or delayed. Notwithstanding the aforementioned, any
corporation into which the Plan Agent may be merged, consolidated or
amalgamated, or any corporation succeeding to all or substantially all of the
business of the Plan Agent relevant to this Agreement (by sale of such business
or otherwise), shall thereupon automatically become the administrative agent and
record keeper hereunder without any further act or formality by the Plan Agent
or the Company. This Agreement shall enure to the benefit of and shall be
binding upon the Parties hereto and their permitted successors and permitted
assigns.
8.4 DELIVERY OF NOTICES
Notwithstanding anything to the contrary contained herein, all notices required
or permitted hereunder shall be in writing. Any notice to be given hereunder
shall be deemed to be properly provided if delivered in any of the following
modes:
(a) personally, by delivering the notice to the Party on which it
is to be served at that Party's address for notices as set
forth in Section 8.5. Personally delivered notices shall be
deemed to be received by the addressee when actually delivered
as aforesaid; provided that, such delivery shall be during
normal business hours on any Business Day. If a notice is not
delivered on a Business Day or is delivered after the
addressee's normal business hours, such notice shall be deemed
to have been received by such Party at the commencement of the
addressee's first Business Day next following the time of the
delivery; or
(b) by facsimile (or by any other like method by which a written
message may be sent) directed to the Party on which it is to
be delivered at that Party's facsimile number as set forth in
Section 8.5 immediately followed up with a telephone
confirmation by the sending Party to the contact of the
receiving Party identified in the facsimile. A notice so
served shall be deemed to be received by the addressee when
transmitted by the Party delivering the notice (provided such
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Party obtains confirmation from its facsimile of successful
transmission and confirms by telephone with the Receiving
Party that the facsimile was successfully transmitted), if
transmitted during the addressee's normal business hours on
any Business Day or at the commencement of the next ensuing
Business Day following transmission if such notice is not
transmitted during business hours.
8.5 NOTICES
The address and facsimile number for delivery of notices hereunder of each of
the Parties shall be as follows:
(a) the Plan Agent:
Computershare Investor Services, LLC
Xxx Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
U.S.A.
Attention: Xxxxxx Xxxxx
Fax No: (000) 000-0000
with a copy to:
Computershare Investor Services, LLC
Xxx Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
U.S.A.
Attention: Director, Relationship Management
Fax No: (000) 000-0000
(b) If to the Company:
USA REIT Fund LLC
c/o Delaware Corporate Organizers, Inc.
0000 X. Xxxxxx Xxxxxx
18th Floor
Wilmington, New Castle County, Delaware 19801
U.S.A.
Attention: Xxxxx Xxxxxx
Fax No.: (000) 000-0000
with a copy to:
Brompton Capital Advisors Inc.
Xxxxx 0000, X. X. Xxx 000
Xxx Xxxxxxxxxx Tower
BCE Place
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Chief Financial Officer
Fax No: (000) 000-0000
A Party may change its address and facsimile number for delivery by notice to
the other Party in the manner set forth herein, and such changed address for
notices thereafter shall be effective for all purposes of this Agreement.
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8.6 TIME OF THE ESSENCE
Time shall be of the essence in this Agreement.
8.7 SEVERABILITY
If any provision of this Agreement shall be held invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall attach only to such
provision in such jurisdiction, and shall not in any manner affect such
provision or render it invalid or unenforceable in any other jurisdiction or
affect any other provision of this Agreement in such jurisdiction or any other
jurisdiction.
8.8 FORCE MAJEURE
Except for the payment obligations of the Company contained herein, neither
party shall be liable to the other, or held in breach of this Agreement, if
prevented, hindered, or delayed in the performance or observance of any
provision contained herein by reason of act of God, riots, acts of war,
epidemics, governmental action or judicial order, earthquakes, or any other
similar causes (including, but not limited to, mechanical, electronic or
communication interruptions, disruptions or failures). Performance times under
this Agreement shall be extended for a period of time equivalent to the time
lost because of any delay that is excusable under this Section.
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IN WITNESS WHEREOF this Agreement has been executed by the Parties hereto as of
the day and year first above written.
COMPUTERSHARE INVESTOR SERVICES, LLC
By:
-------------------------------------
USA REIT FUND LLC
By:
-------------------------------------
Xxxxx X. Xxxxxxx
Chief Executive Officer
