Exhibit 99.B(h)(5)
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 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.
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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 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
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Agent agrees to ▇▇▇▇ 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 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
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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 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 Agent be liable for
special, indirect or consequential damages, or lost profits or loss of
business, arising under or in
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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 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
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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 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
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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
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.
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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.
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
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effect payment by a borrower of any amounts owed by such
borrower or the return of any Securities 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 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 ▇▇▇▇-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
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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: J. ▇▇▇▇▇ ▇▇▇▇▇ By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President Title: Vice President
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Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ And: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Title: AVP
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Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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THE ADVISER
KEY ASSET MANAGEMENT INC.
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: President and Chief Operating Officer
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Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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