TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (this "Agreement") is entered into as
of January 20, 2004, among XXXXXXXXXXX PRINCIPAL PROTECTED TRUST II, an
open-end management investment company organized as a business trust under
the laws of the Commonwealth of Massachusetts (the "Trust"), on behalf of its
series XXXXXXXXXXX PRINCIPAL PROTECTED MAIN STREET FUND II (the "Fund"),
OPPENHEIMERFUNDS, INC., a corporation organized under the laws of the State
of Colorado (the "Adviser"), MAIN PLACE FUNDING, LLC (the "Warranty
Provider"), a limited liability company formed under the laws of the State of
Delaware and an indirect, wholly-owned subsidiary of Bank of America
Corporation ("BAC"), and Bank of America, N.A., a national banking
association ("BANA").
PRELIMINARY STATEMENT
WHEREAS, the parties hereto, with the exception of BANA, have
entered into that certain Financial Warranty Agreement, dated as of October
31, 2003 (the "Financial Warranty Agreement");
WHEREAS, BAC has delivered a Guarantee dated as of October 31,
2003 (the "Guarantee") in favor of the Trust on behalf of the Fund pursuant
to which BAC has agreed to guarantee the obligations of the Warranty Provider
under the Financial Warranty Agreement subject to the terms and conditions
set forth in the Financial Warranty Agreement;
WHEREAS, each of the parties hereto desires to terminate the
Financial Warranty Agreement, each other Transaction Document to which the
Warranty Provider is a party and the Guarantee on and as of an agreed time
and date;
WHEREAS, the Warranty Provider desires to, subject to Section 6
hereof, effective on and as of such agreed time, irrevocably and
unconditionally waive, release, and discharge any claim it may have against
the Fund and/or the Adviser in connection with or arising out of the
Financial Warranty Agreement or any such other Transaction Document
(including the early termination of either the Financial Warranty Agreement
or any such other Transaction Document pursuant to this Agreement), on and
subject to the terms and conditions hereinafter set forth;
WHEREAS, the Fund and the Adviser each desire to, except for the
Surviving Provisions (as defined below) and subject to Section 6 hereof,
irrevocably and unconditionally waive, release, and discharge any claim it
may have against the Warranty Provider in connection with or arising out of
the Financial Warranty Agreement or any such other Transaction Document
(including the early termination of either the Financial Warranty Agreement
or any such other Transaction Document pursuant to this Agreement), on and
subject to the terms and conditions hereinafter set forth; and
WHEREAS, the Trust and the Fund desire to, effective as of such
agreed time, irrevocably and unconditionally waive, release, and discharge
any claim it may have against BAC under the Guarantee (including the early
termination of the Guarantee, the Financial Warranty Agreement or any other
Transaction Document to which the Warranty Provider is a party pursuant to
this Agreement).
NOW, THEREFORE, in consideration of the premises, mutual
covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:
1. Defined Terms. Except as defined herein, all capitalized terms used
herein shall have the respective meanings ascribed to them in the Financial
Warranty Agreement.
2. Termination. Except for Sections 9.1, 9.2 and 9.4 of the Financial
Warranty Agreement (the "Surviving Provisions"), each of the Financial
Warranty Agreement, each other Transaction Document to which the Warranty
Provider is a party and the Guarantee shall terminate and be of no further
force and effect on and as of January 20, 2004 (the "Agreed Early Termination
Date"). The Surviving Provisions shall survive the Agreed Early Termination
Date and shall continue to be effective through the date that is one year
after the earlier of (i) the last day of the protected period under any
subsequent principal protection arrangement that the Fund may enter into or
(ii) the date of final liquidation of the Fund. The Agreed Early Termination
Date shall be a "Termination Date" for purposes of the Service Agreement.
3. Discharge of Obligations and Release. Except for the Surviving
Provisions, effective on and as of the Agreed Early Termination Date, each of
the Warranty Provider on the one hand, and the Fund and the Adviser on the
other hand, is discharged from any and all obligations under the Financial
Warranty Agreement and each other Transaction Document to which the Warranty
Provider is a party. Subject to Section 6 hereof, effective on and as of the
Agreed Early Termination Date, the Warranty Provider irrevocably and
unconditionally waives, releases, and discharges any claim it may have
against the Fund and/or the Adviser, in connection with or arising out of the
Financial Warranty Agreement or any such other Transaction Document
(including the early termination of either the Financial Warranty Agreement
or any such other Transaction Document pursuant to this Agreement). Except
for the Surviving Provisions and subject to Section 6 hereof, the Fund and
the Adviser each irrevocably and unconditionally waives, releases, and
discharges any claim it may have against the Warranty Provider, in connection
with or arising out of the Financial Warranty Agreement or any such other
Transaction Document (including the early termination of either the Financial
Warranty Agreement or any such other Transaction Document pursuant to this
Agreement). Effective on and as of the Agreed Early Termination Date, BAC is
hereby discharged from any and all obligations under the Guarantee, and each
of the Trust and the Fund hereby irrevocably and unconditionally waives,
releases, and discharges any claim it may have against BAC under the
Guarantee (including the early termination of the Guarantee, the Financial
Warranty Agreement or any such other Transaction Document pursuant to this
Agreement).
4. Due Authorization. Each party hereby represents and warrants that (i)
it has the power and authority to execute, deliver and perform this Agreement
and has taken all necessary action required by applicable Requirements of Law
to authorize the execution, delivery and performance of this Agreement, (ii)
this Agreement has been duly executed and delivered on behalf of such party,
and (iii) this Agreement constitutes a legal, valid and binding obligation of
such party enforceable against it in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
5. Covenants of the Adviser and the Trust on behalf of the Fund. The
Adviser and the Trust on behalf of the Fund each hereby covenants and agrees
that following execution of this Agreement it shall promptly notify any
Persons that have to date submitted purchase orders for Shares, of the
termination of the Financial Warranty Agreement, the other Transaction
Documents to which the Warranty Provider is a party and the Guarantee
effective on and as of the Agreed Early Termination Date. Such notification
shall be made pursuant to an amendment or supplement to the Fund's
Registration Statement filed with the Commission.
6. Indemnification. The Warranty Provider and BANA hereby agree to
indemnify and hold harmless the Adviser, the Trust, their affiliates, and
their respective employees, officers, directors, trustees and agents
(collectively, the "Fund Parties") from and against any and all losses,
claims, damages, liabilities, judgments, costs (including, without
limitation, reasonable attorneys' fees), expenses and disbursements
(collectively, "Losses") incurred or suffered by any of them arising out of
third party claims brought against any Fund Party as a result of the early
termination of the Financial Warranty Agreement or reasonable attorneys' fees
incurred by any Fund Party (which shall also constitute "Losses" for purposes
of this Agreement) in connection with the enforcement of this Agreement,
provided, however, that the Warranty Provider and BANA shall not be liable
for that portion of Losses resulting directly or indirectly from any action
or omission on the part of (i) any of the Fund Parties which constitutes
negligence, recklessness, bad faith or willful misconduct by such Fund Party
or (ii) any Person that provides the Fund with any form of principal
protection or with which the Fund (or the Adviser on behalf of the Fund)
enters into any kind of principal protection arrangement; provided, further,
that the Warranty Provider and BANA shall not be liable for any Losses
incurred by any Fund Party in connection with any claim, suit or demand
initiated by the Fund Party to the extent such claim, suit or demand is
finally adjudicated by a final non-appealable judgment of a court of
competent jurisdiction or settled in the Warranty Provider's or BANA's
favor. For the avoidance of doubt, the parties agree that the execution,
delivery and performance of the Transaction Documents and of this Agreement
by the Fund does not constitute negligence, recklessness, bad faith or
willful misconduct by the Fund under subsection (i) above. The Warranty
Provider and BANA agree to promptly reimburse any of the Fund Parties for all
Losses in respect of which indemnification may be sought by such Fund Party
hereunder as they are incurred or suffered by each Fund Party. The Warranty
Provider's and BANA's obligation under this Section shall not extend to
consequential damages. Each Fund Party agrees to inform the Warranty
Provider and BANA promptly in writing of any event which comes to its notice
as a result of which the Warranty Provider or BANA might become liable under
this Section, and to allow the Warranty Provider and BANA (if the Warranty
Provider or BANA so requests) to conduct the defense to any such event, or to
enter into and conclude any settlement negotiations with respect thereto, in
consultation with the Fund Party. Anything in this Section 6 to the contrary
notwithstanding, the Warranty Provider and BANA shall not, without the
applicable Fund Party's prior consent, settle or compromise any claim or
consent to entry of any judgment in respect thereof which imposes any future
obligation on that Fund Party or which does not include, as an unconditional
term thereof, the giving by the claimant or plaintiff to the Fund Party, a
release from all liability in respect of such claim.
7. Governing Law. This Amendment 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).
8. Submission to Jurisdiction, Waiver of Jury Trial. EACH PARTY HEREBY
IRREVOCABLY SUBMITS 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
EACH PARTY HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR
FEDERAL COURT. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
THAT IT MAY LEGALLY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING. EACH PARTY AGREES 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.
EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES
ANY RIGHTS IT 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 PARTY ACKNOWLEDGES AND
AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS
PROVISION AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR SUCH PARTY
ENTERING INTO THIS AGREEMENT.
9. Counterparts. 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.
10. Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and
supercedes all prior discussions and agreements among the parties with
respect to the subject matter hereof.
11. Disclosure of Shareholder Liability. The Warranty Provider understands
and agrees that the obligations of the Trust on behalf of the Fund under this
Agreement are not binding upon any trustee of the Trust or shareholder
personally, but bind only the Fund's assets and property. The Warranty
Provider represents that it has notice of the provisions of the Declaration
of Trust of the Trust disclaiming shareholder and trustee liability for acts
or obligations of the Fund other than in the case of willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of the office of such Trustee.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, all as of the day and year first above mentioned.
OPPENHEIMERFUNDS, INC., as Adviser
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President
XXXXXXXXXXX PRINCIPAL PROTECTED TRUST II,
as Trust, on behalf of XXXXXXXXXXX
PRINCIPAL PROTECTED MAIN STREET FUND II
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Secretary
MAIN PLACE FUNDING, LLC, as Warranty
Provider
By: /s/ Xxxx X'Xxxxxxx
Name: Xxxx X'Xxxxxxx
Title: Senior Vice President
Solely for purposes of Section 6 of this
Agreement (and the provisions of
Sections 7, 8, 9 and 10 of this
Agreement as they relate to such
Section 6):
BANK OF AMERICA, N.A.
By: /s/ Xxxxx Xxx
Name: Xxxxx Xxx
Title: Assistant General Counsel
