CLOSING WILL OCCUR.
UPON PAYMENT OF THE COMMITMENT AMOUNT TO REP PURSUANT TO THIS SECTION 4(C), THE
BALANCE OF THE ESCROW AMOUNT SHALL BE PAID TO INVESTOR.
(D)
UPON THE ENTITLEMENT OF REP OR INVESTOR, AS
APPLICABLE, TO RECEIVE ALL OR A PORTION OF THE ESCROW AMOUNT, THE ESCROW AGENT
SHALL PAY AS PROMPTLY AS PRACTICABLE (BUT IN NO EVENT MORE THAN ONE (1) BUSINESS
DAY FOLLOWING THE RECEIPT OF WRITTEN INSTRUCTIONS TO THE ESCROW AGENT) TO REP OR
INVESTOR, AS APPLICABLE, THE PORTION OF THE ESCROW AMOUNT TO WHICH THEY ARE
ENTITLED.
5.
CONDITIONS TO ESCROW.
THE ESCROW AGENT
AGREES TO HOLD THE ESCROW ACCOUNT AND ESCROW AMOUNT AND TO PERFORM ITS DUTIES
AND OBLIGATIONS IN ACCORDANCE WITH THE TERMS AND PROVISIONS OF THIS ESCROW
AGREEMENT.
EACH OF REP, GGP AND INVESTOR ACKNOWLEDGE AND AGREE THAT THE ESCROW
AGENT DOES NOT ASSUME ANY RESPONSIBILITY FOR THE FAILURE OF REP, GGP OR INVESTOR
TO PERFORM IN ACCORDANCE WITH THE TERMS SET FORTH IN THE INVESTMENT AGREEMENT,
THE LLC AGREEMENT OR THIS ESCROW AGREEMENT.
THE ACCEPTANCE BY THE ESCROW AGENT
OF ITS DUTIES AND OBLIGATIONS HEREUNDER IS SUBJECT TO THE FOLLOWING TERMS AND
CONDITIONS, WHICH THE PARTIES HERETO AGREE SHALL GOVERN AND CONTROL WITH RESPECT
TO THE ESCROW AGENT'S RIGHTS, DUTIES, LIABILITIES AND IMMUNITIES:
(A)
THE ESCROW AGENT MAY CONCLUSIVELY RELY,
AND SHALL BE PROTECTED IN ACTING OR REFRAINING FROM ACTING UPON, ANY WRITTEN
NOTICE, CERTIFICATION, REQUEST, WAIVER, CONSENT, RECEIPT OR OTHER PAPER OR
DOCUMENT FURNISHED TO IT, NOT ONLY AS TO ITS DUE EXECUTION AND VALIDITY AND
EFFECTIVENESS OF ITS PROVISIONS BUT ALSO AS TO THE TRUTH AND ACCURACY OF ANY
INFORMATION THEREIN CONTAINED WHICH THE ESCROW AGENT REASONABLY BELIEVES TO BE
GENUINE AND TO HAVE BEEN SIGNED AND PRESENTED BY THE PROPER PARTY OR PARTIES.
THE ESCROW AGENT IS ALSO RELIEVED FROM THE NECESSITY OF SATISFYING ITSELF AS TO
THE AUTHORITY OF THE PERSONS EXECUTING THIS ESCROW AGREEMENT IN A REPRESENTATIVE
CAPACITY.
IT IS UNDERSTOOD AND AGREED THAT ANY REFERENCES HEREIN TO JOINT
INSTRUCTIONS OR JOINT WRITTEN INSTRUCTIONS OR WORDS OF SIMILAR IMPORT INCLUDE
ANY INSTRUCTIONS SIGNED IN COUNTERPART.
4
(B)
THE ESCROW AGENT SHALL NOT BE LIABLE FOR
ANY ERROR OF JUDGMENT OR FOR ANY ACT DONE OR STEP TAKEN OR OMITTED BY IT IN GOOD
FAITH, OR FOR ANY MISTAKE OF FACT OR LAW, OR FOR ANYTHING WHICH IT MAY DO OR
REFRAIN FROM DOING IN CONNECTION HEREWITH, IN EACH CASE, EXCEPT IN CASES OF ITS
OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(C)
THE ESCROW AGENT MAY CONSULT WITH, AND
OBTAIN ADVICE FROM, LEGAL COUNSEL IN THE EVENT OF ANY QUESTION AS TO ANY OF THE
PROVISIONS HEREOF OR ITS DUTIES AND OBLIGATIONS HEREUNDER, AND IT SHALL INCUR NO
LIABILITY AND SHALL BE FULLY PROTECTED IN ACTING IN GOOD FAITH IN ACCORDANCE
WITH THE REASONABLE OPINION AND REASONABLE INSTRUCTIONS OF SUCH COUNSEL.
(D)
THE ESCROW AGENT MAY RESIGN AND BE
DISCHARGED FROM ITS DUTIES AND OBLIGATIONS HEREUNDER BY GIVING NOTICE IN WRITING
TO EACH OF REP