SECURITIES LENDING AGENCY AGREEMENT
THIS SECURITIES LENDING AGENCY AGREEMENT ("Agreement") is entered into as
of August 28th, 1997, by and among Key Trust Company of Ohio, N.A., located in
Cleveland, Ohio (the "Agent"), The Victory Funds (the "Principal") on behalf of
each Fund (as hereinafter defined) individually and not jointly, and Key Asset
Management Inc. (the "Adviser").
WHEREAS, the Principal is a Delaware business trust doing business as a
series of open-end management investment companies registered under the
Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Board of Trustees (the "Board") of the Principal, on behalf
of each series fund set forth on Exhibit A hereto, (each a "Fund" and
collectively the "Funds") individually and not jointly have adopted Securities
Lending Guidelines in the form attached hereto as Exhibit B (the "Board
Policy"), pursuant to which each Fund may participate in the securities lending
program established pursuant to this Agreement and may lend its portfolio
securities in accordance with, and subject to the terms and conditions of, the
Board Policy;
WHEREAS, the Board has delegated to the Adviser pursuant to the Board
Policy certain responsibilities and duties with respect to the securities
lending program; and
WHEREAS, the Agent serves as custodian of each Fund and in such capacity
has agreed to perform the services described hereunder as Agent on behalf of the
Principal and the Funds;
WHEREAS, the Principal desires to appoint the Agent as its agent for the
purpose of lending a portion of the securities held or beneficially owned by the
Funds, with the exception of those securities or types of securities listed on
Exhibit C attached hereto (the "Securities"), on the terms and conditions set
forth below and the Agent is willing to accept such appointment;
NOW, THEREFORE, the Principal, the Adviser and the Agent agree as follows:
1. The Principal hereby authorizes and directs the Agent to lend
Securities on behalf of the Funds in accordance with the terms and
conditions of this Agreement and the Board Policy.
The Adviser shall direct the activities of the Agent hereunder and
shall be responsible for negotiating and approving the terms of each
loan of Securities, selecting an approved borrower, approving the
collateral to
be pledged and directing the investment of any cash collateral, all
in accordance with the Board Policy. The Agent shall deliver and
arrange for the return of loaned Securities, monitor the daily value
of Securities loaned and collateral received, demand additional
collateral when required of borrowers, perform recordkeeping and
accounting services with respect to the securities lending program,
invest the Collateral in Approved Investments (as defined in the
Board Policy) as directed by the Adviser and perform such other
functions as the Adviser may reasonably prescribe. All activities of
the Agent and Adviser in connection with such securities lending
program shall be performed in accordance with the terms of this
Agreement and the Board Policy. In the event of any conflict between
this Agreement and the Board Policy, the Board Policy shall govern;
provided, however, that the Principal shall give the Agent
thirty-one (31) days prior written notice of any amendments to the
Board Policy, where practicable; provided, further, that in the
event the Board Policy is amended such that the policy becomes
inconsistent with this Agreement, the Agent may immediately cease
lending Securities on behalf of the Funds and may terminate this
Agreement as provided in paragraph 15 hereof. Notwithstanding any
other provision of this Agreement, upon notice to the Agent, the
Principal or the Adviser, in their sole discretion, may amend
Exhibit C hereto to limit or restrict the ability of Agent to lend a
particular Security or Class of Securities.
2. Securities may be lent to one or more broker-dealer(s) or bank(s)
selected by the Agent from time to time from the list of authorized
borrowers approved by the Principal as set forth on Exhibit D hereto
and in accordance with the Board Policy. Each loan of Securities
hereunder shall be for the separate account of the Fund that owns
such Securities, be terminable upon notice by the Agent, if so
directed by the Adviser, and be made pursuant to the terms of a
written agreement with the borrower, substantially in the form of
the Master Securities Loaning Agreement attached hereto as Exhibit E
(a "Securities Loan Agreement") and no such Securities Loan
Agreement shall be amended in any material respect by the Agent
except with the prior consent of the Principal. The Principal
acknowledges and agrees that any Securities transferred to a
borrower may be registered or held in the name of and voted by the
borrower or others; provided, however, that except as provided
below, for any reason and at any time, the Adviser, in its sole
discretion, may instruct the Agent to terminate any loan
immediately. Notwithstanding the foregoing, in the event the Adviser
wishes to exercise voting rights with respect to any loaned
Securities, the Adviser shall use its best efforts to so instruct
the Agent at least two (2) weeks prior to the record date for such
vote. In either event, upon receipt of direction by Adviser, the
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Agent shall, as directed by the Adviser, require the borrower to
return such securities as provided in paragraph 5 hereof. The
Principal hereby consents to the Agent's revealing the Principal's
identity to borrowers of the Securities.
The Agent shall reasonably allocate demand for borrowed securities
among the Funds and Agent's other securities lending customers. The
Principal acknowledges and agrees that, if the Agent acts reasonably
and equitably in allocating demand for borrowed securities, the
Principal will have no claim against the Agent based on, or relating
to, loans made for other customers of Agent or for the Agent's own
account (in its corporate capacity), or based on loan opportunities
the Agent declines or refuses under this Agreement, whether or not
the Agent has made fewer or more loans for any other customer or for
the Agent's own account (in its corporate capacity) than for the
Principal, and whether or not any loan for another customer or for
the Agent's own account (in its corporate capacity) or an
opportunity declined or refused could have resulted in loans made
hereunder on behalf of the Principal.
3. The Principal represents and warrants that it has the power to
authorize the Agent to lend the Securities on behalf of the Funds,
the lending of Securities pursuant to this Agreement has been duly
authorized by all necessary action, corporate or otherwise, on the
part of Principal and each Fund, and will not violate any law,
regulation, charter, by-law or other instrument, restriction or
provision applicable to the Principal or any Fund and that, as to
any Securities loaned at any time and from time to time on behalf of
any Fund, such Fund will be the owner thereof with clear title
thereto and no lien, charge or encumbrance upon such Securities
shall exist except as otherwise created pursuant to this Agreement.
The Principal has no knowledge of any facts or restrictions which
would affect transfer by the Agent of the Securities to
broker-dealer(s) or bank(s), or the use of the Securities so
transferred by broker-dealer(s) or bank(s), and agrees to
immediately notify the Agent in writing upon becoming aware of any
such restriction or to cause the Adviser to so notify the Agent.
The Agent represents and warrants that it has all requisite
corporate power and authority to enter into this Agreement and to
perform the obligations to be performed by it hereunder.
4. The Adviser shall notify the Agent of any sales or transfers of
Securities on loan by no later than the trade date when practical,
but in any event, no later than 9:00 a.m. E.S.T. the next business
day after trade date, to permit the Agent to effect the timely
recall of the
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loaned Securities from the borrower as provided in paragraph 5
hereof. The Agent agrees that notice of any sale or transfer
received by it in the ordinary course of its business as custodian
on behalf of the Funds shall be sufficient notice under this
Agreement. Except as otherwise provided herein for purposes of this
Agreement, a "business day" is any day on which both the Agent and
the borrower are open for business.
5. The Agent will require the borrower to return the Securities on loan
within the lesser of the following time limits: (i) within the
customary delivery period for such Securities from the time notice
of recall is received by the borrower; (ii) within three business
days from the time such notice is received in the case of equities
and corporate bonds; or (iii) within one business day from the time
such notice is received in the case of U.S. Government bonds or
notes. For purposes of this paragraph 5 only, a "business day" is
any day on which the principal trading market of loaned Securities
is open for business.
6. Except as otherwise directed or approved by the Adviser in
accordance with the Board Policy, the Agent will require the
borrower of the loaned Securities to provide collateral consisting
of cash, securities issued or guaranteed by the U.S. Government or
its agencies, or in such other forms approved by the Principal in
writing ("Collateral"), which will initially be no less than 102% of
the market value of the loaned Securities plus the accrued interest
on debt securities which comprise all or part of the loaned
Securities, and which will be maintained daily by the borrower at no
less than 100% of such market value plus the accrued interest on
debt securities which comprise all or part of the loaned Securities.
The Agent agrees to xxxx loans of Securities to market daily in
accordance with the foregoing requirements. The Agent will invest
any cash Collateral in Approved Investments as defined in the Board
Policy and as directed by the Adviser. All Collateral, including
investments of cash Collateral, shall be allocated among the Funds
in relation to the Securities loaned by such Fund and, with respect
to Collateral so allocated, shall be for the sole account and risk
of such Fund. To the extent any loss arising out of such investments
results in a deficiency in the amount of Collateral available for
return to a borrower pursuant to the applicable Securities Loan
Agreement, the Fund to which such Collateral was pledged shall pay
the Agent on demand cash in an amount equal to such deficiency. All
cash Collateral will be invested by the Agent as quickly as
commercially practicable. Agent is authorized to utilize any
recognized independent pricing information service (or if no
valuation is available through such service, any other
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valuation service approved by the Adviser) in order to perform its
valuation responsibilities with respect to loaned Securities,
Collateral and investments, and the Adviser agrees to hold Agent
harmless from and against any loss or damage suffered or incurred as
a result of errors or omissions of any such approved pricing
information service.
7. If the Agent or the Adviser determines that any event of default by
the borrower under a Securities Loan Agreement has occurred, the
Agent is hereby authorized and directed to terminate all outstanding
loans to such borrower under the Securities Loan Agreement and to
use the Collateral to acquire replacement securities of the exact
same type and kind as the Securities which were loaned to the
borrower or to permit the curing of any other default by the
borrower. If the Agent concludes that such acquisition or cure is
not possible, then the Agent shall so advise the Adviser and will
thereafter act only in accordance with the Adviser's written or oral
directions with respect to using the Collateral to acquire
securities specified by the Adviser to replace the Securities which
the borrower failed to return.
8. As directed by the Adviser, the Agent shall settle, compromise or
submit to arbitration on behalf of a Fund any claims, debts or
damages arising out of any loan of the Securities and may defend
suits or legal proceedings and act, in its capacity as Agent, as the
named party in all suits or legal proceedings involving or related
to any loan of Securities; provided, however, that the Agent will
not be required to take any such action until it is first
indemnified by the Principal to the Agent's satisfaction. All costs
and expenses incurred in connection therewith (including, but not
limited to, reasonable attorney fees) shall be born solely by the
relevant Fund.
9. The Principal agrees that the Agent will be entitled to reasonable
compensation for securities lending services hereunder determined as
follows: the Agent's compensation will be computed monthly in
arrears and will be forty percent (40%) of the sum of all interest,
dividends and other distributions earned from the investment of
Collateral in Approved Investments, net of rebates paid by Agent to
borrowers and net of brokerage commissions, if any, incurred in
making or liquidating Approved Investments. The Agent shall bear all
costs and expenses incurred by it in performing its obligations
hereunder and shall have no claim against the Principal or the Funds
with respect to such costs or expenses. In the event of any claim
against Agent by a third party arising out of the Agent's duties
hereunder, or in the event Agent asserts a claim against any third
party at the direction of the Adviser, the Fund to which such claim
relates shall reimburse Agent for and hold it harmless from and
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against any and all costs, expenses, damages, liabilities or claims,
including reasonable fees and expenses of counsel, which Agent may
sustain or incur or which may be asserted against Agent by reason of
or as a result of any action taken or omitted by Agent in connection
with operating under this Agreement, other than those costs,
expenses, damages, liabilities or claims arising out of the
negligence, bad faith or willful misconduct of Agent or a breach of
its obligations under this Agreement. The foregoing obligation will
be paid directly by the relevant Fund, and not paid out of Fund
assets held under this Agreement, and shall be a continuing
obligation of the Fund notwithstanding termination of this
Agreement.
10. Agent shall have no duties or responsibilities whatsoever except
such duties and responsibilities as are specifically set forth in
this Agreement, and no covenant or obligations shall be implied
against Agent in connection with this Agreement.
11. The Agent shall not be liable for any costs, expenses, damages,
liabilities or claims (including attorneys' and accountants' fees)
incurred by the Principal or the Funds, except those costs,
expenses, damages, liabilities or claims arising out of the Agent's
negligence, bad faith or willful misconduct. Without limiting the
generality of the foregoing, the Agent shall have no obligation
under any circumstances for costs, expenses, damages, liabilities or
claims (including attorneys' and accountants' fees), which are
sustained or incurred by reason of: (i) errors or omissions of the
Principal, the Funds, the Adviser or any securities depository,
clearing corporation or wire transfer or other electronic transfer
service or system used in transferring the Securities or Collateral
(including, without limitation, any such service or system of the
Depository Trust Company or any Federal Reserve Bank); (ii) any
restriction or limitation on the availability or use of the
Collateral arising by operation of law or contract; (iii) in the
case of cash Collateral, any depreciation, diminution or decrease in
the value of the cash Collateral caused by or attributable to losses
incurred through the investment of the cash Collateral including,
without limitation, any loss in the form of negative net earnings
resulting from or attributable to mismatched cash placements and any
interest rate exposure resulting therefrom; or (iv) except as
provided in paragraph 20 hereof, any failure or refusal by a
borrower of the Securities to maintain Collateral in accordance with
paragraph 6 above. The Agent may, with respect to questions of law,
apply for and obtain the advice and opinion of competent counsel
reasonably acceptable to Principal and shall be fully protected with
respect to anything done or omitted by it in good faith in
conformity with such advice or opinion. In no event will the
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Agent be liable for special, indirect or consequential damages, or
lost profits or loss of business, arising under or in connection
with this Agreement, even if previously informed of the possibility
of such damages and regardless of the form of action.
12. The Agent will require each borrower to supply the Agent and the
Adviser with such statements of financial condition and other
relevant information as the Adviser deems reasonably necessary in
its sole discretion to evaluate the borrower's creditworthiness.
13. Any corporation or association into which the Agent may be merged or
with which it may be consolidated, or any corporation or association
resulting from any merger, reorganization or consolidation to which
the Agent may be a party, shall be its successor under this
Agreement without the execution or filing of any instrument or the
performance of any further act. This Agreement shall be binding upon
and enforceable by any successor of the Principal. Notwithstanding
the foregoing, this Agreement will terminate in the event of an
"assignment" by the Adviser or the Agent as defined in the
Investment Company Act of 1940, as amended (the "Investment Company
Act"); provided, however, that consistent with Rule 2a-6 under the
Investment Company Act, an internal merger, reorganization or
consolidation of the Agent which does not result in a change of
actual control or management by its ultimate parent corporation
shall not be deemed an "assignment" for purposes of this Agreement.
14. This Agreement may be amended from time to time by a written
instrument signed by the Principal, the Adviser and the Agent;
provided that any additions or deletions to the list of authorized
broker-dealer(s) or bank(s) as borrowers, as set forth on Exhibit D,
may be by delivery of a written notice from the Adviser, on behalf
of the Principal, to the Agent.
15. Either party may terminate this Agreement on thirty (30) days
written notice to the other party (the date so specified for
termination of this Agreement being hereafter referred to as the
"Termination Date"), unless such other party shall accept as
adequate a shorter notice, and the Agent will not make any further
loans of the Securities or renew or extend any existing loans after
the Termination Date; provided, however, that this Agreement will
continue in full force and effect with respect to and until such
time as all loans made prior to the Termination Date have matured
and been settled. The parties hereto acknowledge that this Agreement
shall be subject to annual review
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and approval by the Board of Trustees of the Principal on behalf of
the Funds, individually and not jointly.
16. Agent shall be entitled to rely upon any certificate, written or
oral instruction actually received by Agent from the Principal or
the Adviser and reasonably believed by Agent to be duly authorized
and delivered. The Adviser agrees to forward to Agent written
instructions on behalf of itself and the Principal confirming oral
instructions in such manner so that such written instructions are
received by Agent by the close of business of the same day that such
oral instructions are given to Agent. Principal and the Adviser
agree that the fact that such confirming written instructions are
not received or that contrary instructions are received by Agent
shall in no way affect the validity or enforceability of the
transactions authorized by the Adviser. In this regard, the records
of Agent shall be presumed to reflect accurately any oral
instructions given by a person authorized to act on behalf of the
Adviser or the Principal or a person reasonably believed by Agent to
be such a person.
17. This Agreement supersedes any other agreement among the Agent, the
Adviser and the Principal concerning securities lending. Each and
every right granted to the Agent hereunder or under any other
document delivered hereunder or in connection herewith, or allotted
by law or equity, shall be cumulative and may be exercised from time
to time. No failure on the part of the Agent to exercise, and no
delay in exercising, any right will operate as a waiver thereof, nor
will any single or partial exercise by the Agent of any right
preclude any other or future exercise thereof or the exercise of any
other right. This Agreement will be construed and enforced according
to the laws of the State of Ohio without regard to principles of
conflict of laws and, to the extent of any federal preemption, the
laws of the United States of America. The parties irrevocably
consent to the exclusive jurisdiction of any court of competent
jurisdiction located in Cuyahoga County, Ohio with respect to any
litigation relating to this Agreement. In case any provision of this
Agreement is determined to be invalid, that fact shall not affect
the validity of any other provision hereof.
18. Except as specifically provided in paragraphs 14 and 15 hereof, in
any case where this Agreement provides for or permits the giving of
any notice, such notice may be given in either of the following
ways, in the discretion of the party giving the notice: (1) the
notice may be given by telephone, telegraph or telecopier
transmission, provided that the party giving the notice has
reasonable grounds to believe that the other party actually received
the notice so given and provided further that the party so giving
the notice confirms it in a writing
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deposited in the United States mail, postage prepaid, no later than
the close of business on the day the notice is given, in which case
the notice shall be effective when so given; or (2) the notice may
be given by depositing it in the United States mail, postage
prepaid, in which case the notice shall be effective when so
deposited. The mailing addresses of the parties, for purposes of
this provision, are listed below, but may be changed from time to
time by a notice given as above provided.
19. The Agent may, in its sole discretion and as a matter of bookkeeping
convenience, credit a Fund with interest, dividends or other
distributions payable on Securities prior to its actual receipt of
final payment therefor and the Principal agrees that such
bookkeeping credits may also be reflected on a Fund's books, and
otherwise, as "immediately available" or "same day" funds or by some
similar characterization. Notwithstanding any such credit or
characterization, all such credits shall be conditional upon the
Agent's actual receipt of final payment and may be reversed by the
Agent to the extent that final payment is not received. If the
Agent, in its sole discretion, permits a Fund to use funds credited
to it prior to receipt by the Agent of final payment thereof, the
Fund shall nonetheless continue to bear the risk of, and liability
for, the Agent's nonreceipt of final payment in full, except as
provided in paragraph 20 hereof. For all purposes of this Agreement,
payment with respect to a transaction will not be "final" until the
Agent shall have received immediately available funds which under
applicable law or rule are irreversible, which are not subject to
any security interest, levy or other encumbrance, and which are
specifically applicable, or deemed by the Agent to be specifically
applicable, to such transaction.
20. The following indemnification will apply for purposes of this
Agreement.
(A) If the borrower in respect of any loan effected pursuant
hereto and pursuant to the relevant Securities Loan Agreement
fails to return any loaned Securities to the Agent for the
account of a Fund when due (the "Return Date"), then the
Agent, subject to satisfaction of the applicable Fund's
obligations under paragraph 6 of this Agreement, shall take
all actions which it deems necessary or appropriate to
liquidate Approved Investments and any other Collateral in
connection with Loans to such borrower and, unless advised by
the Adviser to the contrary, shall make a reasonable effort
for two business days after the Return Date (the "Replacement
Period") to apply the proceeds thereof to the purchase of
securities identical to the
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loaned Securities not returned and any distribution then due.
If during the Replacement Period the Collateral liquidation
proceeds are insufficient to replace any of the loaned
Securities and any distributions then due, Agent shall,
subject to satisfaction of the applicable Fund's obligations
under Paragraph 6 of this Agreement, pay such additional
amounts as are necessary to make such replacement. Purchases
of replacement securities shall be made only in such markets,
in such manner and upon such terms as Agent shall consider
appropriate in its sole discretion. Replacement securities
shall be credited to the account of the respective Fund upon
receipt by Agent. Subject to paragraph 7 hereof, if Agent is
unsuccessful in purchasing any replacement securities during
the Replacement Period, the Collateral liquidation proceeds
(as determined below) shall be credited to the respective
Fund's Account, and Agent shall, subject to satisfaction of
the Funds' obligations under Paragraph 6 of this Agreement,
credit to the respective fund's account cash in an amount (if
any) equal to (X) the market value of the loaned Securities at
the end of the Replacement Period and distributions not
returned, minus (Y) the market value of the Collateral
liquidation proceeds (as determined below), such calculation
and credit to be made at the end of the Replacement Period. In
addition, at the end of the Replacement Period, Agent shall
pay to the applicable Fund (i) an amount equal to any interest
expense incurred by the Fund which is directly attributable to
the failure of the borrower to return any loaned Securities
when required and (ii) an amount equal to any buy-in-costs or
buy-in-expenses actually incurred and directly attributable to
the failure of a borrower to return any loaned Securities and
distributions then due when required.
The market value of the Collateral liquidation proceeds shall
be determined as follows: (i) in the case of loans
collateralized by cash Collateral, the greater of (A) the
market value of the cash Collateral held with respect to such
loaned Securities on the date of initial pledge as adjusted
for any subsequent marks-to-market through the end of the
Replacement Period, to the extent such marks-to-market are
satisfied by borrower, and (B) the market value of the
proceeds of cash Collateral investments held with respect to
such loaned Securities at the end of the Replacement Period
and, (ii) in the case of loans collateralized by non-cash
Collateral, the market value of such Collateral held with
respect to such loaned Securities at the end of the
Replacement Period.
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Market value shall be determined by the Agent in accordance
with this Agreement and the applicable Securities Loan
Agreement, including the computation of dollar equivalents
where loaned Securities and/or Collateral (and proceeds) are
denominated in a currency other than U.S. dollars. Where cash
Collateral and non-cash Collateral have each been received
with respect to a particular loan as of the Return Date, the
Difference payable shall be computed in accordance with the
foregoing as if there had been two loans in effect on the
Return Date, the first reflecting that fraction of non-cash
Collateral to total Collateral and the second reflecting that
fraction of cash Collateral to total Collateral.
(B) The Agent will notify the Adviser as promptly as practicable
under the circumstances of the borrower's failure or refusal
to return the loaned Securities.
(C) In no event will the Agent be liable to the Principal or any
Fund under this indemnity for any amount in addition to the
amount computed in accordance with subparagraph (A) of this
paragraph 20.
(D) Upon the Agent's crediting or paying the amounts required
pursuant to subparagraph (A) of this paragraph 20, the
Principal agrees that the Agent is and will remain subrogated
to all of the Principal's rights and the relevant Fund's
rights under the Securities Loan Agreement or otherwise (to
the extent of such credit or payment) including, but not
limited to, the Principal's rights and the relevant Fund's
rights with respect to the loaned Securities and distributions
paid or payable thereon, and Collateral and any earnings and
distributions paid or payable in connection therewith, without
the execution of any documents or the giving of any notice.
(E) The Principal agrees to execute and deliver to the Agent such
further documents and to otherwise fully cooperate with the
Agent to give effect to the Agent's rights of subrogation
hereunder.
(F) Except as specifically set forth in this paragraph 20 and in
paragraph 7, above, the Agent shall have no duty or obligation
to take any action to effect payment by a borrower of any
amounts owed by such borrower or the return of any Securities
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borrowed by the borrower pursuant to the Securities Loan
Agreement.
(G) The Principal's obligation to the Agent as set forth in
paragraph 9 hereof will not apply to any costs or expenses
incurred by the Agent in performing the Agent's obligations
under this paragraph 20.
(H) The Agent may terminate the provisions of this paragraph 20
with respect to any borrower at any time by delivery of a
notice to the Adviser specifying a termination date not
earlier than the date of receipt of such notice by the
Principal. No such termination shall be effective with respect
to any then existing rights of either party under this
paragraph 20 or any outstanding loans of Securities entered
into prior to the specified termination date.
21. The terms of this Agreement are completely separate and independent
from any other securities lending agreement or program to which the
Funds are not a party, including those that may involve the Agent
and the Adviser in the Adviser's capacities other than as investment
adviser to the Funds, and all rights and obligations hereunder shall
be construed independently of any other agreements or programs. This
Agreement supersedes any other agreement between the parties
covering loans of Securities by Agent on behalf of the Principal.
The provisions of this Agreement are severable and the invalidity or
unenforceability of any provision hereof shall not affect any other
provision of this Agreement. No single or partial waiver of any
right hereunder shall preclude any other or further exercise
thereof, or the exercise of any other right hereunder. The
obligations of any Fund entered into in the name or on behalf
thereof by any of their representatives or agents are made not
individually, but in such capacities and are not binding upon any of
the Directors or Trustees, shareholders or representatives of the
Fund personally, but bind only the assets of the Fund, and the
Agent, each borrower and any other persons dealing with a Fund in
connection with this Agreement must look solely to the assets of the
Fund for the enforcement of any claims against the Fund arising out
of this Agreement or any loan agreement.
22. Each Fund shall be deemed to have entered into this Agreement
severally and not jointly, and the provisions of this Agreement
shall be construed accordingly. Each reference hereunder to the
Funds or a Fund shall be deemed a separate reference solely to
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the Fund to which a particular loan under this Agreement relates.
Under no circumstances shall the rights, obligations or remedies
hereunder with respect to a particular Fund constitute a right,
obligation or remedy applicable to any other Fund. In particular,
and without otherwise limiting the scope of this paragraph: (i) the
Collateral and xxxx-to-market requirements specified in Paragraph 6
of this Agreement shall be calculated separately based solely upon
the loans entered into by each Fund, (ii) any indemnification by one
Fund under Paragraph 9 of this Agreement shall not create any right
or obligation with respect to any other Fund, and (iii) Agent shall
have no right to set off claims against or amounts owed by one Fund
by applying property of another fund.
THE PRINCIPAL THE AGENT
on behalf of the Funds set forth on
Exhibit A, individually and not jointly KEY TRUST COMPANY OF
OHIO, N.A.
By: /s/ J. Xxxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxx
-------------------------------- ------------------------------------
Title: Vice President Title: Vice President
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Address: 0000 Xxxxxxx Xxxx And: Xxxxxxx X. Xxxx
-------------------------- ------------------------------
Xxxxxxxx, XX 00000 Title: AVP
-------------------------- ------------------------------------
-------------------------- Address: 000 Xxxxxx Xxxxxx
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Xxxxxxxxx, XX 00000
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THE ADVISER
KEY ASSET MANAGEMENT INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: President and Chief Operating Officer
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Address: 000 Xxxxxx Xxxxxx
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Xxxxxxxxx, XX 00000
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