Exhibit 8(i)(1)
AGREEMENT
Agreement, dated ____ day of October, 2002, among Xxxxxxx Xxxxx Investment
Managers, L.P. ("Adviser"), Xxxxxxx Xxxxx Principal Protected Trust (the
"Trust") on behalf of Xxxxxxx Xxxxx Fundamental Growth Principal Protected Fund
(the "Fund"), Xxxxx Brothers Xxxxxxxx & Co, Inc. (the "Custodian") and Main
Place Funding, LLC (the "Warranty Provider").
Whereas, pursuant to a Custodian Agreement currently in full force and
effect between the Custodian and the Trust on behalf of the Fund, dated as of
October 26, 2001, as amended with respect to the Trust as of ____ day of
October, 2002 (the "Custodian Agreement"), the Custodian serves as custodian to
the Fund;
Whereas, Adviser acts as investment adviser to the Fund;
Whereas, the Trust on behalf of the Fund, the Warranty Provider and
Adviser are parties to a Financial Warranty Agreement, dated ____ day of
October, 2002 (the "Financial Warranty Agreement"); and
Whereas, Adviser, the Fund, the Warranty Provider and the Custodian wish
to clarify certain arrangements in connection with the Financial Warranty
Agreement.
Now therefore, Adviser, the Fund, the Warranty Provider and the Custodian
hereby agree as follows:
1. During the Term (as defined below), the Custodian shall permit the
Warranty Provider to have continuous access to the Custodian's Information
Display System or any equivalent successor system (the "BID System")
solely for the purpose of monitoring the investment positions maintained
by the Fund. The Warranty Provider agrees to abide by such conditions of
use for such BID System as the Custodian shall reasonably impose upon
prior notice to the Warranty Provider of at least one month.
2. During the Term, the Custodian shall provide to the Warranty Provider not
later than 9:00 a.m. (Eastern time) on each Exchange Business Day (as
defined in the Financial Warranty Agreement) electronically in a format
reasonably acceptable to the Warranty Provider (i) a copy of the records
it maintains with respect to the assets of the Fund as of the close of
business on the prior Exchange Business Day and (ii) a list of all of the
Fund's trades during such prior Exchange Business Day.
3. The Custodian agrees that if the Warranty Provider delivers irrevocable
instructions in the form attached hereto as Annex A which has been
executed by Adviser (the "Irrevocable Instructions"), the Custodian shall
(i) comply with such Irrevocable Instructions in accordance with the
established trade instruction deadlines of the Custodian and Adviser and
(ii) not invest, dispose of or reinvest any of the Fund's assets except in
accordance with such Irrevocable Instructions. Each of Adviser and the
Fund agrees that the delivery of such Irrevocable Instructions shall
constitute an "Instruction" from an "Authorized Person" (as those terms
are defined in the Custodian Agreement). Upon receipt of the Irrevocable
Instructions, the Custodian shall disregard any further Instructions that
it may receive from Adviser (or any subadviser to the Fund) with respect
to the investment of the Fund's portfolio until notified otherwise in a
writing
signed by both the Warranty Provider and Adviser (the "Joint
Instructions"). The Custodian shall have no liability for any losses that
may occur as a result of its disregarding any Instructions or other
directions received from Adviser (or any subadviser of the Fund) or the
Fund after the Irrevocable Instructions have been delivered to the
Custodian by the Warranty Provider and prior to the time that the Joint
Instructions have been delivered to the Custodian. Upon receipt of the
Irrevocable Instructions, the Custodian shall promptly notify Adviser of
the receipt of such Irrevocable Instructions.
4. This Agreement shall be effective from the date hereof until the earlier
of the termination of the Custodian Agreement (unless the Custodian and
the Fund enter into a successor custodian agreement immediately after such
termination) and the Termination Date (as defined in the Financial
Warranty Agreement) (the "Term").
5. If any provision(s) contained in the Custodian Agreement contradict(s) any
provision(s) contained in this Agreement, the provision(s) of this
Agreement shall control. Except as specifically provided herein, the
Custodian shall have no express or implied duties of any kind with respect
to the subject matter herein. Following receipt of the Irrevocable
Instructions, the Custodian shall have no duty whatsoever to monitor the
investment positions maintained by the Fund. As between the Custodian and
Fund, nothing contained herein shall alter or amend the rights of the
Custodian under the Custodian Agreement.
6. Nothing in this Agreement shall limit the rights of the Board of Trustees
and duly appointed officers of the Fund to provide instructions to the
Custodian with respect to the Fund under the Custodian Agreement and prior
to the delivery by the Warranty Provider of the Irrevocable Instructions.
7. The parties hereby agree that the indemnification obligations set forth
below shall survive the termination of this Agreement:
(a) The extent of the Custodian's liability for the negligent execution
of an Irrevocable Instruction shall be determined in accordance with
the terms and conditions of the Custodian Agreement. The Custodian's
obligation to indemnify the Warranty Provider for the negligent
execution of an Irrevocable Instruction shall be determined in
accordance with the Custodian's obligations and standard of care set
forth in the Custodian Agreement; provided, however, that the
Custodian shall not be liable for any losses resulting directly or
indirectly from any action or omission on the part of the Warranty
Provider which constitutes negligence, recklessness, bad faith or
willful misconduct by the Warranty Provider.
(b) The Warranty Provider agrees to indemnify and hold harmless the
Custodian if the Warranty Provider negligently delivers Irrevocable
Instructions to the Custodian and the Custodian incurs losses as a
result of the Custodian complying in accordance with the terms of
this Agreement with such Irrevocable Instructions (or any part
thereof); provided, however, that the Warranty Provider shall not be
liable for any losses resulting, directly or indirectly, from any
action or omission on the part of the Custodian which constitutes
negligence, recklessness, bad faith or willful misconduct by the
Custodian.
(c) The remedies provided for in this Section 7 shall not be exclusive
of any other rights or remedies available to one party against the
other, either at law or in equity.
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8. Except to the extent otherwise expressly provided herein, all notices,
requests and demands to or upon the respective parties hereto to be
effective shall be in writing (and if, sent by mail, certified or
registered, return receipt requested) or confirmed facsimile transmission
and, unless otherwise expressly provided herein, shall be deemed to have
been duly given or made when delivered by hand, or three Business Days
after being deposited in the mail, postage prepaid, or, in the case of
facsimile transmission, when sent, addressed as follows:
If to Adviser:
Xxxxxxx Xxxxx Investment Managers, L.P.
[Address]
Attention:
Telephone:
Facsimile:
If to the Fund:
Xxxxxxx Xxxxx Fundamental Growth Principal Protected Fund
[Address]
Attention: General Counsel
Telephone:
Facsimile:
If to the Custodian:
Xxxxx Brothers Xxxxxxxx & Co., Inc.
[Address]
Attention:
Telephone:
Facsimile:
If to the Warranty Provider:
Main Place Funding, LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
Telephone:
Facsimile:
or such other address and/or addresses (and with copies to such persons)
as shall be specified in writing by any such party to the others.
9. No failure on the part of any party to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right preclude any other
or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law. The parties
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further agree that the holding by any court of competent jurisdiction that
any remedy pursued by any party hereunder is unavailable or unenforceable
shall not affect in any way the ability of such party to pursue any other
remedy available to it. In the event any provision of this Agreement shall
be held invalid or unenforceable by any court of competent jurisdiction,
the parties hereto agree that such holding shall not invalidate or render
unenforceable any other provision hereof.
10. The parties hereto agree that irreparable damage would occur in the event
any provision of this Agreement was not performed in accordance with the
terms hereof and that the parties shall be entitled to specific
performance of the terms hereof, in addition to any other remedy at law or
equity.
11. ADVISER, THE FUND, THE CUSTODIAN AND THE WARRANTY PROVIDER HEREBY
IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE
OR FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW
YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND ADVISER, THE FUND, THE CUSTODIAN AND THE WARRANTY PROVIDER
HEREBY IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL
COURT. ADVISER, THE FUND, THE CUSTODIAN AND THE WARRANTY PROVIDER HEREBY
IRREVOCABLY WAIVE, TO THE FULLEST EXTENT THAT THEY MAY LEGALLY DO SO, THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING. ADVISER, THE FUND, THE CUSTODIAN AND THE WARRANTY PROVIDER
AGREE THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
ADVISER, THE FUND, THE CUSTODIAN AND THE WARRANTY PROVIDER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT
OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE
PARTIES HERETO. EACH OF ADVISER, THE FUND, THE CUSTODIAN AND THE WARRANTY
PROVIDER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR SUCH PARTIES ENTERING INTO THIS AGREEMENT.
12. Nothing in this Agreement, express or implied, shall, or is intended to,
confer any rights upon any Person other than the parties hereto or their
respective successors or assigns, including, without limitation, any
shareholder of the Fund.
13. The parties hereto shall, upon the request of Adviser, the Fund, the
Custodian or the Warranty Provider from time to time, execute, acknowledge
and deliver, or cause to be executed, acknowledged and delivered, within a
reasonable period following such request, such amendments or supplements
hereto and such further instruments and take such further action as may be
reasonably necessary to effectuate the intention, performance and
provisions of this Agreement and the other Transaction Documents (as
defined in the Financial Warranty Agreement).
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14. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York (including Section 5-1401 of the New York
General Obligations Law but excluding all other choice of law and
conflicts of law rules).
15. This Agreement may be executed in counterparts of the parties hereto, and
each such counterpart shall be considered an original and all such
counterparts shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, all as of
the day and year first above mentioned.
XXXXXXX XXXXX INVESTMENT
MANAGERS, L.P.
By: ______________________________,
its general partner
By: _______________________________
Name:
Title:
XXXXXXX XXXXX PRINCIPAL PROTECTED
TRUST on behalf of XXXXXXX XXXXX
FUNDAMENTAL GROWTH PRINCIPAL
PROTECTED FUND
By: _______________________________
Name:
Title:
MAIN PLACE FUNDING, LLC
By: _______________________________
Name:
Title:
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XXXXX BROTHERS XXXXXXXX & CO, INC.
By: _______________________________
Name:
Title:
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ANNEX A
FORM OF IRREVOCABLE INSTRUCTIONS
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Xxxxx Brothers Xxxxxxxx & Co., Inc.
[Address]
Attention: [_____]
Dear [_________]:
These Irrevocable Instructions (as defined below) are delivered in
connection with the Service Agreement (the "Service Agreement"), dated as of the
____ day of October, 2002, among Xxxxx Brothers Xxxxxxxx & Co., Inc. (the
"Custodian"), Xxxxxxx Xxxxx Investment Managers, L.P. (the "Adviser"), Xxxxxxx
Xxxxx Principal Protected Trust on behalf of Xxxxxxx Xxxxx Fundamental Growth
Principal Protected Fund (the "Fund") and Main Place Funding, LLC (the "Warranty
Provider") and the Financial Warranty Agreement (the "Financial Warranty
Agreement"), dated as of the ____ day of October, 2002, among the Adviser, the
Fund and the Warranty Provider. All capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to such terms in the Financial
Warranty Agreement.
We hereby notify you that a Permanent Defeasance Event has occurred and we
hereby instruct you to invest all of the assets of the Fund in U.S. Zeroes (and
Cash and/or Cash Equivalents to the extent necessary to meet redemption requests
received by the Fund, provided that evidence of such redemption requests has
been provided to the Custodian) in accordance with the terms of the Service
Agreement ("Irrevocable Instructions").
These Irrevocable Instructions, and this letter itself, shall be deemed to
constitute "Instructions" under Article 4 of the Custodian Agreement (the
"Custodian Agreement") between the Fund and the Custodian and shall be a
standing Instruction, effective as of the date of this letter and until the
Warranty Provider and the Adviser (or other Authorized Person (as defined in the
Custodian Agreement)) jointly instruct the Custodian otherwise in writing.
In the event that the Custodian receives these Irrevocable Instructions
which, in the reasonable belief of the Custodian, conflicts in any way (in whole
or in part) with any other outstanding or future Instruction to the Custodian
regarding the Fund's assets issued by the Fund, the Adviser or other Authorized
Person, the Custodian shall be entitled to rely upon these Irrevocable
Instructions and further, the Custodian is hereby authorized and directed to
disregard such Instruction and instead, follow and act upon these Irrevocable
Instructions.
XXXXXXX XXXXX INVESTMENT
MANAGERS, L.P.
By: ____________________,
its general partner
By: ____________________________
Name:
Title:
