SEVERAL AND NOT JOINT AND THAT NEITHER AGENT NOR ANY OF
BANKS SHALL BE RESPONSIBLE OR LIABLE TO PERFORM ANY OF THE OBLIGATIONS OF THE
OTHER UNDER THIS AGREEMENT.
EACH BANK IS DEEMED TO BE THE OWNER OF AN UNDIVIDED
INTEREST IN AND TO ALL RIGHTS, TITLES, BENEFITS AND INTERESTS BELONGING AND
ACCRUING TO AGENT UNDER THE SECURITY INSTRUMENTS, INCLUDING, WITHOUT LIMITATION,
LIENS AND SECURITY INTERESTS IN ANY COLLATERAL, FEES AND PAYMENTS OF PRINCIPAL
AND INTEREST BY THE BORROWER UNDER THE COMMITMENTS ON A PRO RATA BASIS.
EACH
BANK SHALL PERFORM ALL DUTIES AND OBLIGATIONS OF BANKS UNDER THIS AGREEMENT IN
THE SAME PROPORTION AS ITS OWNERSHIP INTEREST IN THE LOANS OUTSTANDING AT THE
DATE OF DETERMINATION THEREOF.
(N)
INVESTMENTS.
WHENEVER AGENT IN GOOD FAITH DETERMINES THAT IT IS
UNCERTAIN ABOUT HOW TO DISTRIBUTE TO BANKS ANY FUNDS WHICH IT HAS RECEIVED, OR
WHENEVER AGENT IN GOOD FAITH DETERMINES THAT THERE IS ANY DISPUTE AMONG THE
BANKS ABOUT HOW SUCH FUNDS SHOULD BE DISTRIBUTED, AGENT MAY CHOOSE TO DEFER
DISTRIBUTION OF THE FUNDS WHICH ARE THE SUBJECT OF SUCH UNCERTAINTY OR DISPUTE.
IF AGENT IN GOOD FAITH BELIEVES THAT THE UNCERTAINTY OR DISPUTE WILL NOT BE
PROMPTLY RESOLVED, OR IF AGENT IS OTHERWISE REQUIRED TO INVEST FUNDS PENDING
DISTRIBUTION TO THE BANKS, AGENT MAY INVEST SUCH FUNDS PENDING DISTRIBUTION.
ALL INTEREST ON ANY SUCH INVESTMENT SHALL BE DISTRIBUTED UPON THE DISTRIBUTION
OF SUCH INVESTMENT AND IN THE SAME PROPORTIONS AND TO THE SAME PERSONS AS SUCH
INVESTMENT.
ALL MONIES RECEIVED BY AGENT FOR DISTRIBUTION TO THE BANKS (OTHER
THAN TO THE PERSON WHO IS AGENT IN ITS SEPARATE CAPACITY AS A BANK) SHALL BE
HELD BY THE AGENT PENDING SUCH DISTRIBUTION SOLELY AS AGENT FOR SUCH BANKS, AND
AGENT SHALL HAVE NO EQUITABLE TITLE TO ANY PORTION THEREOF.
18.
EXPENSES.
THE BORROWER SHALL PAY (I) ALL REASONABLE AND NECESSARY
OUT-OF-POCKET EXPENSES OF THE AGENT, INCLUDING REASONABLE FEES AND DISBURSEMENTS
OF SPECIAL COUNSEL FOR THE AGENT, IN CONNECTION WITH THE PREPARATION OF THIS
AGREEMENT, ANY WAIVER OR CONSENT HEREUNDER OR ANY AMENDMENT HEREOF OR ANY
DEFAULT OR EVENT OF DEFAULT OR ALLEGED DEFAULT OR EVENT OF DEFAULT HEREUNDER,
(II) ALL REASONABLE AND NECESSARY OUT-OF-POCKET EXPENSES OF THE AGENT, INCLUDING
-45-
REASONABLE FEES AND DISBURSEMENTS OF SPECIAL COUNSEL FOR THE AGENT IN CONNECTION
WITH THE PREPARATION OF ANY PARTICIPATION AGREEMENT FOR A PARTICIPANT OR
PARTICIPANTS REQUESTED BY THE BORROWER OR ANY AMENDMENT THEREOF AND (III) IF A
DEFAULT OR AN EVENT OF DEFAULT OCCURS, ALL REASONABLE AND NECESSARY
OUT-OF-POCKET EXPENSES INCURRED BY THE BANKS, INCLUDING FEES AND DISBURSEMENTS
OF COUNSEL, IN CONNECTION WITH SUCH DEFAULT AND EVENT OF DEFAULT AND COLLECTION
AND OTHER ENFORCEMENT PROCEEDINGS RESULTING THEREFROM.
THE BORROWER HEREBY
ACKNOWLEDGES THAT GARDERE WYNNE SEWELL LLP IS SPECIAL COUNSEL TO BANK ONE, AS
AGENT AND AS A BANK, UNDER THIS AGREEMENT AND THAT IT IS NOT COUNSEL TO, NOR
DOES IT REPRESENT THE BORROWER IN CONNECTION WITH THE TRANSACTIONS DESCRIBED IN
THIS AGREEMENT.
THE BORROWER IS RELYING ON SEPARATE COUNSEL IN