SERVICE AGREEMENT
Agreement, dated October 31, 2003, among OppenheimerFunds, Inc. (the
"Adviser"), Xxxxxxxxxxx Principal Protected Trust II (the "Trust") on behalf
of its series, Xxxxxxxxxxx Principal Protected Main Street Fund II (the
"Fund"), JPMorgan Chase Bank (the "Custodian") and Main Place Funding, LLC
(the "Warranty Provider").
Whereas, pursuant to a Custodian Agreement dated as of August 16, 2002
(the "Custodian Agreement"), the Custodian serves as custodian to the Fund;
Whereas, the Adviser acts as investment adviser to the Fund;
Whereas, the Trust on behalf of the Fund, the Warranty Provider and the
Adviser are parties to a Financial Warranty Agreement, dated as of October
31, 2003 (the "Financial Warranty Agreement"); and
Whereas, the Adviser, the Fund, the Warranty Provider and the Custodian
wish to clarify certain arrangements in connection with the Financial
Warranty Agreement.
Now therefore, the Adviser, the Fund, the Warranty Provider and the Custodian
hereby agree as follows:
1. All capitalized terms used herein but not otherwise defined herein
shall have the meanings ascribed to such terms in the Financial
Warranty Agreement unless otherwise specified. The meanings of the
defined terms incorporated herein from the Financial Warranty Agreement
are incorporated for definitional purposes only and shall not be read
to impose any additional obligations on the Custodian, except where
expressly provided in this Agreement.
2. During the Term (as defined below), the Custodian shall permit the
Warranty Provider and Banc of America Securities LLC (the "Calculation
Agent") to have continuous access to the Custodian's information
display system or any equivalent successor system (the "JPM VIEWS
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 JPM VIEWS System as the Custodian shall
reasonably impose upon prior notice to the Warranty Provider of at
least one month.
3. During the Term, the Custodian shall provide to the Warranty Provider
and the Calculation Agent 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 acceptable to the Warranty
Provider in its reasonable discretion (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.
4. The Custodian agrees that if the Warranty Provider or the Calculation
Agent delivers irrevocable instructions in the form attached hereto as
Annex A which has been executed by the Adviser (the "Irrevocable
Instructions"), the Custodian shall (i) comply with such Irrevocable
Instructions promptly, but in any event, within two Exchange Business
Days (as defined in the Financial Warranty Agreement), and (ii) not
invest, dispose of or reinvest any of the Fund's assets except in
accordance with such Irrevocable Instructions. Each of the 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 (other than Redemption Instructions (as defined in the
Irrevocable Instructions), provided that such Redemption Instructions
are made in accordance with the Irrevocable Instructions) that it may
receive from the Adviser (or any subadviser to the Fund), the Fund or
any other Authorized Person with respect to the investment of the
Fund's portfolio until notified otherwise in a writing signed by both
the Warranty Provider and the 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 (other
than Redemption Instructions, provided that such Redemption
Instructions are made in accordance with the Irrevocable Instructions)
received from the Adviser (or any subadviser of the Fund), the Fund or
any other Authorized Person 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 the Adviser of the receipt of such Irrevocable
Instructions.
5. 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").
6. 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, (i)
the Custodian shall have no express or implied duties of any kind with
respect to the subject matter herein and (ii) 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.
7. Nothing in this Agreement shall limit the rights of the Board of
Trustees and duly appointed officers of the Trust on behalf 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.
8. 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. Under no
circumstances will the Custodian be liable to any of the other
parties hereto for any indirect, incidental, consequential or
special damages (including, without limitation, lost profits) of
any form incurred by any person or entity, whether or not
foreseeable and regardless of the type of action in which such a
claim may be brought, with respect to the Custodian's performance
of its obligations hereunder. 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 Irrevocable Instructions are negligently
delivered to the Custodian by the Warranty Provider (or the
Calculation Agent on its behalf) 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.
9. 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 the Adviser:
OppenheimerFunds, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx, General Counsel
Telephone No: (000) 000-0000
Facsimile No: (000) 000-0000
If to the Fund:
c/o OppenheimerFunds, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx, General Counsel
Telephone No: (000) 000-0000
Facsimile No: (000) 000-0000
with a copy to:
Myer, Swanson, Xxxxx & Xxxx
The Colorado State Bank Building
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx Xxxxxxxx 00000-0000
Attention: Xxxxx Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Warranty Provider:
Main Place Funding, LLC
c/o Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxxx, Managing Director
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxxx, Managing Director
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Calculation Agent:
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxxx, Managing Director
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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.
10. 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 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.
11. 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.
12. THE 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 THE 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. THE 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. THE 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.
THE 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 THE 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.
13. 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.
14. The parties hereto shall, upon the request of the 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).
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York (without regard to conflicts of laws
provisions thereof).
16. 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.
17. The Warranty Provider and the Custodian understand and agree 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 of the Fund
personally, but bind only the Fund's assets and property. The Warranty
Provider and the Custodian represent that they have 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.
[Remainder of Page Intentionally Left Blank]
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
By: /s/ Xxxx X'Xxxxxxx
Name: Xxxx X'Xxxxxxx
Title: Principal
JPMORGAN CHASE BANK
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Vice President
ANNEX A TO THE SERVICE AGREEMENT
FORM OF IRREVOCABLE INSTRUCTIONS
OppenheimerFunds, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
__________ __, 2003
JPMorgan Chase Bank
[-----------]
[-----------]
Attention: [__________]
Dear __________:
These Irrevocable Instructions (as defined below) are delivered
in connection with the Service Agreement (the "Service Agreement"), dated as
of October 31, 2003, among JPMorgan Chase Bank (the "Custodian"),
OppenheimerFunds, Inc. (the "Adviser"), Xxxxxxxxxxx Principal Protected Trust
II (the "Trust") on behalf of its series, Xxxxxxxxxxx Principal Protected
Main Street Fund II (the "Fund"), and Main Place Funding, LLC (the "Warranty
Provider") and the Financial Warranty Agreement (the "Financial Warranty
Agreement"), dated as of October 31, 2003, among the Adviser, the Trust on
behalf of 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 liquidate the Fund's assets as
necessary and make investments as necessary so that all of the assets of the
Fund are invested in U.S. Zeroes (and Cash and/or Cash Equivalents to the
extent necessary to pay Fund fees and meet redemption requests received by
the Fund, provided that evidence of such redemption requests has been
provided to the Custodian by the Adviser (or any subadviser to the Fund), the
Fund or any other Authorized Person (as defined in the Service Agreement)) in
accordance with the terms of the Service Agreement ("Irrevocable
------------
Instructions" which term shall include the Redemption Instructions as defined
below). After the receipt by the Custodian of such evidence of redemption
requests, the Custodian is hereby instructed (the "Redemption Instructions")
to honor proper Instructions (as defined in the Service Agreement) from the
Adviser (or any subadviser to the Fund), the Fund, or any other Authorized
Person with respect to the payment of redemption proceeds in order to satisfy
such redemption requests.
These Irrevocable Instructions, and this letter itself, shall be
deemed to constitute "Instructions" under Section 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, together with 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, conflict in
any way (in whole or in part) with any other outstanding or future
Instructions 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.
OPPENHEIMERFUNDS, INC.
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President
