Earnest Money Escrow Agreement



Earnest Money Escrow Agreement

Single Deposit

Commitment No: ___________________

THIS EARNEST MONEY ESCROW AGREEMENT (“Agreement”) is made as of ____________, 20____, by and among ____________________________ (“Buyer”), ____________________________ (“Seller”), and _________________________ (“Escrow Agent”).

RECITALS:

A. Pursuant to that certain Offer to Purchase dated ___________________, 20____ by and between Seller and Buyer (the “Offer”), Buyer is depositing with Escrow Agent earnest money in the amount of $___________________ (“Funds”). A true and correct copy of the Offer is attached as Exhibit A.

B. Escrow Agent shall hold the Funds in a (non-interest) (interest) bearing account [STRIKE ONE] (if neither is stricken, then the Funds shall be held in a non-interest bearing account). All earnings and risk of loss for said account shall accrue in favor of (Buyer) (Seller) [STRIKE ONE] (if neither is stricken, then all earnings and risk of loss shall accrue in favor of Buyer).[1]

THE PARTIES AGREE:

1. Recitals: The above recitals are incorporated below as if set forth at length.

2. Release of the Funds: Escrow Agent shall hold the Funds until the first of the following events:

A. On the closing of the sale of real estate, as described in the Offer, Escrow Agent shall deliver the Funds and interest, if any, to Seller as part of Buyer's purchase money.

B. On receipt of joint written instructions from Buyer and Seller directing Escrow Agent to disburse the Funds and interest, if any, to a named party, Escrow Agent shall disburse the Fund and interest, if any, as directed in such notice. Upon such disbursement, Escrow Agent shall have no further liability under this Agreement.

C. In the event Escrow Agent does not receive joint written instructions on or before the date for closing, as described in the Offer, Escrow Agent shall continue to hold the Funds and interest, if any, until the first of the following events:

i. Receipt by Escrow Agent of joint written instructions from Buyer and Seller to disburse the Funds and interest, if any, to a named party (upon receipt of such notice, Escrow Agent shall make the disbursement as directed in the notice);

ii. Delivery of the Funds and interest, if any, by Escrow Agent, at Escrow Agent's sole discretion, to a court of competent jurisdiction. Such delivery may be by interpleader or other writ or petition. Buyer and Seller agree that, after the Funds and interest, if any, are delivered to court under this paragraph, Escrow Agent shall have no further liability under this Agreement and shall not be a necessary or permitted party in any action brought regarding the Funds and interest, if any; or

iii. Entry and receipt by Escrow Agent of an order of a court of competent jurisdiction ordering Escrow Agent to deliver the Funds and interest, if any (upon receipt of such order, Escrow Agent shall make the disbursement as directed in the order).

3. Escrow Agent’s Costs and Expenses: In addition to the provisions set forth in Paragraph 2, above, in the event that Escrow Agent is requested to release the Funds and interest, if any, prior to the closing of the sale of the Property, Escrow Agent shall be entitled to deduct from the amount to be released all of Escrow Agent’s costs and expenses incurred in preparing for the sale of the Property including, but not limited to, search and examination fees, fees to obtain special assessment letters, and commitment cancellation fees.

4. Liability of Escrow Agent: Escrow Agent shall not be liable for: (i) any act or omission done in good faith under this Agreement, nor (ii) any loss arising out of loss or impairment of the Funds in the course of collection or while on deposit with a bank due to bank failure, insolvency or suspension, except as shall result from failure of the Escrow Agent to comply with written closing instructions from the Seller and Buyer to deposit the Funds in a bank which the Seller and Buyer designated by name. Buyer and Seller agree to, jointly and severally, hold Escrow Agent harmless for all reasonable actions taken by Escrow Agent in accordance with this Agreement. In addition, Buyer and Seller further agree to pay all expenses of Escrow Agent, including reasonable attorneys’ fees, which may arise pursuant to or out of a dispute with reference to the rights of anyone claiming an interest in the Funds deposited under this Agreement.

5. Action Against Escrow Agent: The parties agree that any action in relation to an alleged breach of this Agreement by Escrow Agent shall be commenced within two years of the date of the breach, without regard to the date the breach is discovered. Any action not brought against Escrow Agent within that two year time period shall be barred, without regard to any other limitations period set forth by law or statute, and the Buyer and Seller hereby waive any statute of limitations to the contrary.

6. Counterparts: This Agreement may be executed in counterparts. When each party has executed a copy of this Agreement, the executed copies taken together shall have the same force and effect as if executed in one document. Facsimile signatures on this Agreement shall be deemed original signatures.

7. Notices: Any notice required under this Agreement shall be given in writing at the addresses set forth at the end of this Agreement and by: (a) certified or registered mail, postage prepaid, (b) overnight courier guaranteeing next day delivery, (c) personal delivery, or (d) facsimile. All notices shall be deemed given three (3) business days following deposit in the United States mail with respect to certified or registered letters, one (1) business day following deposit if delivered to an overnight courier guaranteeing next day delivery and on the same day if sent by personal delivery or facsimile (with proof of transmission).

8. Binding: The terms, covenants and conditions of this Agreement shall binding upon the parties and their respective successors, heirs and assigns.

|SELLER: |BUYER: |

| | |

|_____________________________________ |_____________________________________ |

|Name: ________________________________ |Name: ________________________________ |

|Address: ______________________________ |Address: ______________________________ |

|City, State: ____________________________ |City, State: ____________________________ |

|Phone #: ______________________________ |Phone #: ______________________________ |

| | |

|ESCROW AGENT: | |

| | |

| | |

|By: ___________________________________ | |

|Name: ________________________________ | |

|Title: _________________________________ | |

|Address: ______________________________ | |

|City, State: ____________________________ | |

|Phone #: ______________________________ | |

Exhibit A

Offer to Purchase

Authorization for Release

Of Escrowed Funds

Pursuant to the terms and provisions of that that certain Earnest Money Escrow Agreement dated ___________________, 20_____ (“Agreement”) by and among the below named Seller and Buyer and the Escrow Agent named in the Agreement, Buyer and Seller direct Escrow Agent to disburse the Funds, plus interest, if any, less Escrow Agent’s costs and expenses pursuant to Paragraph 3 of the Agreement, to ___________________.

The disbursement check should be delivered to the following address:

___________________

Words not otherwise defined in this Authorization shall have the same meaning set forth in the Agreement.

Date: ___________________, 20____.

|SELLER: |BUYER: |

| | |

|_____________________________________ |_____________________________________ |

|Name: ________________________________ |Name: ________________________________ |

|Address: ______________________________ |Address: ______________________________ |

|City, State: ____________________________ |City, State: ____________________________ |

|Phone #: ______________________________ |Phone #: ______________________________ |

| | |

Note: Paragraph 3 of the Agreement provides that in the event that Escrow Agent is requested to release the Funds, and interest, if any, prior to the closing of the sale of the Property, Escrow Agent shall be entitled to deduct from the amount to be released all of Escrow Agent’s costs and expenses incurred in preparing for the sale of the Property including, but not limited to, search and examination fees, fees to obtain special assessment letters, and commitment cancellation fees.

Direction to Invest

Escrowed Funds

Date: ___________________, 20_____.

Subject to all of the terms of this instruction, the undersigned authorizes and directs Escrow Agent under that certain Earnest Money Escrow Agreement dated ___________________, 20___ (“Agreement”) to open a money market account at a depository to be chosen by Escrow Agent, in its sole discretion (“Depository”), in the name of ___________________.

The account shall be opened in the amount of $___________________, with all interest accruing to and reported to the Internal Revenue Service for the account of:

Names: ______________________________________

Address: ______________________________________

Phone: ______________________________________

A copy of the undersigned’s driver’s license is attached (if the undersigned is an individual).

Upon the Depository's request, the undersigned will execute the appropriate Internal Revenue Service documentation for the giving of taxpayer identification information relating to this account. The undersigned authorizes Escrow Agent to execute that documentation on behalf of the undersigned, as the undersigned’s agent, and further directs Escrow Agent to send a copy of said documentation to the undersigned.

Escrow Agent shall not be responsible for any penalties, or loss or principal or interest or any delays in the withdrawal of the funds which may be imposed by the Depository as a result of the making or redeeming of the investment pursuant to these instructions, nor shall Escrow Agent be liable for any loss or impairment of funds while those funds are in the course of collection or while those funds are on deposit in a financial institution if such loss or impairment results from the failure, insolvency or suspension of a financial institution.

SUBSTITUTE FORM W-9 (Dept. of the Treasury, IRS; Rev. October 2007)

Under penalties of perjury, I certify that:

1. The following number is my correct taxpayer identification number, and

___________________________________ OR ___________________________________

Social Security Number Employer Identification Number

2. I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding, and

3. I am a U.S. citizen or other U.S. person defined for federal tax purposes as: (a) an individual who is a U.S. citizen or U.S. resident alien, (b) a partnership, corporation, company, or association created or organized in the United States or under the laws of the United States, (c) an estate (other than a foreign estate), or (d) a domestic trust (as defined in Regulations section 301.7701-7).

___________________________________ ___________________________________

Name: _____________________________ Date

Title (if applicable): __________________

Escrow Receipt

Pursuant to that certain Earnest Money Escrow Agreement dated ___________________, 20___, (“Agreement”), Escrow Agent hereby acknowledges receipt of $___________________.

Date: ___________________, 20___.

|ESCROW AGENT | |

| | |

| | |

| | |

|By: ___________________________________ | |

|Name: ________________________________ | |

|Title: _________________________________ | |

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[1] If the Funds are to be held in an interest bearing account, then the party to whom interest is accruing shall: (a) complete and return the “Direction to Invest Escrowed Funds”, and (b) if that party is an individual, that party shall provide a copy of his/her driver’s license. The Funds will be deposited into the interest bearing account only after receipt by Escrow Agent of the “Direction to Invest Escrowed Funds” and a copy of the driver’s license, if applicable.

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