BE CONSTRUED, PERFORMED AND ENFORCED IN ACCORDANCE WITH, AND
GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
THE PARTIES HERETO IRREVOCABLY SUBMIT
TO THE JURISDICTION OF THE BANKRUPTCY COURT WITH RESPECT TO ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS ESCROW AGREEMENT.
EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS ESCROW AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
THE PARTIES HERETO, ON BEHALF OF THEMSELVES
AND THEIR RESPECTIVE HEIRS, SUCCESSORS, AND ASSIGNS, HEREBY COVENANT AND AGREE
TO NOT INSTITUTE OR CAUSE TO BE INSTITUTED OR CONTINUE PROSECUTION OF ANY SUIT
OR OTHER FORM OF ACTION OR PROCEEDING OF ANY KIND OR NATURE WHATSOEVER AGAINST
INVESTOR BY REASON OF OR IN CONNECTION WITH THIS ESCROW AGREEMENT; PROVIDED,
HOWEVER, THAT NOTHING SHALL PROHIBIT REP FROM INSTITUTING AN ACTION AGAINST
ESCROW AGENT FOR RELEASE OF THE ESCROW AMOUNT OR PROHIBIT ESCROW AGENT FROM
COMMENCING AN INTERPLEADER ACTION THAT NAMES REP AS A DEFENDANT.
10
16.
SECTION AND PARAGRAPH HEADINGS.
THE SECTION
AND PARAGRAPH HEADINGS IN THIS ESCROW AGREEMENT ARE FOR REFERENCE PURPOSES ONLY
AND SHALL NOT AFFECT THE MEANING OR INTERPRETATION OF THIS ESCROW AGREEMENT.
17.
COUNTERPARTS.
THIS ESCROW AGREEMENT MAY BE
EXECUTED AND DELIVERED (INCLUDING, WITHOUT LIMITATION, BY FACSIMILE
TRANSMISSION) IN COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL, BUT
ALL OF WHICH SHALL CONSTITUTE THE SAME INSTRUMENT.
18.
WITHHOLDING. ANY AND ALL PAYMENTS TO BE MADE TO
INVESTOR OR REP HEREUNDER SHALL BE SUBJECT TO REDUCTION FOR ANY APPLICABLE TAX,
INCLUDING ANY APPLICABLE WITHHOLDING TAX, WHETHER DOMESTIC OR FOREIGN.
19.
SECURITY PROCEDURES.
IN THE EVENT FUND
TRANSFER INSTRUCTIONS ARE GIVEN (OTHER THAN IN WRITING AT THE TIME OF EXECUTION
OF THIS ESCROW AGREEMENT), WHETHER IN WRITING, BY FACSIMILE OR OTHERWISE, THE
ESCROW AGENT IS AUTHORIZED TO SEEK CONFIRMATION OF SUCH INSTRUCTIONS BY
TELEPHONE CALL-BACK TO THE PERSON OR PERSONS DESIGNATED ON SCHEDULE I HERETO,
AND THE ESCROW AGENT MAY RELY UPON THE CONFIRMATION OF ANYONE PURPORTING TO BE
THE PERSON OR PERSONS SO DESIGNATED.
THE INDIVIDUALS AUTHORIZED TO GIVE OR
CONFIRM FUNDS TRANSFER INSTRUCTIONS MAY BE CHANGED ONLY IN A WRITING ACTUALLY
RECEIVED AND ACKNOWLEDGED BY THE ESCROW AGENT.
THE ESCROW AGENT AND THE
BENEFICIARY'S BANK IN ANY FUNDS TRANSFER MAY RELY SOLELY UPON ANY ACCOUNT
NUMBERS OR SIMILAR IDENTIFYING NUMBERS PROVIDED BY INVESTOR OR REP TO IDENTIFY
(I) THE BENEFICIARY, (II) THE BENEFICIARY'S BANK, OR (III) AN INTERMEDIARY
BANK.
THE ESCROW AGENT MAY APPLY ANY OF THE ESCROWED FUNDS FOR ANY PAYMENT
ORDER IT EXECUTES USING ANY SUCH IDENTIFYING NUMBER, EVEN WHEN ITS USE MAY
RESULT IN A PERSON OTHER THAN THE BENEFICIARY BEING PAID, OR THE TRANSFER OF
FUNDS TO A BANK OTHER THAN THE BENEFICIARY'S BANK OR AN INTERMEDIARY BANK
DESIGNATED. THE PARTIES TO THIS ESCROW AGREEMENT ACKNOWLEDGE THAT THESE SECURITY
PROCEDURES ARE COMMERCIALLY REASONABLE.
ALL FUNDS TRANSFER INSTRUCTIONS MUST
INCLUDE