Barristers Title Services
ESCROW AGREEMENT
THIS ESCROW AGREEMENT is made and entered into as of the ___th day of_______________________________, by and among ________________________ (hereinafter referred to as “Buyer”) and _____________________________________ (hereinafter referred to as “Seller”) and _____________________________ (hereinafter referred to as “Escrow Agent”).
WITNESSETH:
WHEREAS, Buyer and Seller have entered into a Contract dated ____________
____________ for the Purchase of the property located at ________________________ (hereinafter “property” , “premises” or “residence”); and
WHEREAS, Seller has not yet completed the improvements to the property (See the Attached List); and
WHEREAS, the parties have identified certain “Punch List” items which have not yet been completed by the Seller (See the Attached List); and
WHEREAS, the parties desire to close the transaction prior to the completion of the improvements and the said Punch List items; and
WHEREAS, Buyer desires that Seller continue to be obligated to complete the improvements and the said Punch List items subsequent to the closing.
WHEREAS certain funds in the amount of _________________________ and 00/100 dollars ($_________), receipt of which by Escrow Agent is hereby acknowledged (hereinafter, referred to as the “Escrow Money”) have been escrowed from the Seller’s proceeds to ensure that the improvements and punch List items referenced above shall be completed.
WHEREAS, the source of said funds shall be as follows: $________ shall be withheld by the Closing Agent from the Seller’s Proceeds; and
WHEREAS Escrow Agent has agreed to administer the Escrow Money pursuant to this Agreement;
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ii. Terms. All initially capitalized terms used but not defined or modified herein shall have the meanings ascribed thereto in this Agreement.
ii. Escrow Money. The Escrow Money shall be held by the Escrow Agent, in trust, on the terms and conditions hereinafter set forth:
(1) WHEREAS, _____________________________ (Buyer) is purchasing and _________________________ (Seller) is the property referenced above; and
WHEREAS, closing is scheduled to take place on _____________________________, and;
WHEREAS, the Buyers desire to purchase the property prior to the completion of the aforementioned improvements and Punch List items;
In order to close the transaction and obligate the Seller to complete the improvements and Punch List items post-closing, Seller and Purchaser agree as follows:
a) To escrow the sum of ___________________________ and NO/100 dollars ($______________) to be paid by Buyer to cover the cost of the improvements and Punch List items to the extent that Seller fails to complete them. Said funds shall come from the following sources: __________________ and No Dollars ($_______) shall be withheld from the Seller’s Proceeds at closing. Said escrow funds to be held by ______________________________________________.
b) Said improvements and Punch List items shall be completed by Seller subsequent to the Closing.
c) Said improvements and Punch List items shall be completed prior to the expiration of sixty days (60) from the date that the Deed from the Seller to the Buyer is actually filed.
d) If all of the improvements and Punch List items are completed in a workmanlike manner prior to the expiration of sixty (60) days from the filing of the Deed, the Seller’s proceed shall be refunded.
e) The Scope of the work shall be limited to those items listed on the attached exhibits. Neither Buyer nor Seller may object to the scope of the work to be performed.
f) None of the parties to this Agreement may interfere with the completion of the improvements and Punch List items or the performance of the Seller’s obligation herein.
g) As indicated above, the improvements and Punch List items required by this Agreement must be completed no later than sixty (60) days from the filing of the Deed. Should any repair remain outstanding after the expiration of the said sixty (60) days, the Buyer shall be permitted to complete the improvements and Punch List items of his/her own volition and request that the Escrow Agent disburse sufficient funds to reimburse the Buyer for the cost and expense of making any such repair. Should any such delay to acts of God, the completion date indicated above shall be extended by the amount of the delay attributable to said acts of God. Any disputes concerning who is responsible for a delay shall be resolved by the Escrow Agent, whom the parties agree shall be the final judge and arbiter of said disputes. The Escrow Agent shall exercise his judgment in a fair and reasonable with a view towards resolving said disputes in favor of completing any necessary mitigation
h) If Seller objects to the release of the Escrow Money at any point, Buyers shall have as a remedy the ability to pay the costs of the repairs from its own funds and file suit against the Seller seeking an Order demanding the release of the Escrow Money to Buyers to reimburse said costs. In the event of any litigation between the parties, the prevailing party shall be entitled to be reimbursed the costs and expenses of the litigation, including reasonable attorneys fees.
i) Upon the completion of the repairs, Buyer and Seller shall both notify Escrow Agent that the improvements and Punch List items have been completed in a workmanlike manner at which point, Escrow Agent shall release Seller’s funds to Seller. Escrow Agent shall not mediate any dispute concerning the quality of the Seller’s repairs. If the parties cannot agree as to the quality of said work, Seller shall have as a remedy the ability to file suit seeking a release of the funds. Escrow Agent shall comply with any order from a Court of competent jurisdiction once all appeal avenues have been exhausted.
(2) The Escrow Money shall be held in a non-interest-bearing account or accounts at Escrow Agent’s bank, _________________________________, in _____________________________, North Carolina.
(3) The Escrow Agent shall not be responsible for any interest except for such as is actually received, nor shall the Escrow Agent be responsible for the loss of any interest arising from the closing of any account or the sale of any certificate of deposit or other instrument prior to maturity. All interest accrued in the account will be remitted to the North Carolina State Bar as part of the IOALTA Program.
(4) Upon written confirmation from Buyer and Seller of the completion of the improvements and Punch List items, the Escrow Agent shall disburse the Escrow Money to the appropriate persons as reflected above. Neither Buyers or Sellers may withhold their consent to release the funds for purposes of harassment, delay or to gain any perceived tactical or strategic advantage. Escrow Agent shall have the discretion to ignore any demands or objection made by a party of Escrow Agent, in his discretion, determines that the demand or objection is made for the sole purpose of harassment, delay or to gain a perceived tactical or strategic advantage.
(5) Damages to the premises: Any cost due to damages to the premises incurred as a result of the repairs made by the Seller shall be bourne by the Seller.
(6) Mailings. All mailings and notices from the Escrow Agent to Buyer and Seller or Agent or from Buyer and Seller or Agent to the Escrow Agent, provided for in this Agreement shall be addressed to the party to receive such notice at the address set forth in Section 8 below.
iii. Limitation of Liability. In performing any of its duties hereunder, Escrow Agent shall not incur any liability to anyone for any damages, losses or expenses, including, without limitation: (i) any action taken or omitted upon advice of its legal counsel given with respect to any questions relating to the duties and responsibilities of Escrow Agent under this Agreement; (ii) any loss of interest resulting from a delay in investing or reinvesting the Escrow Money; (iii) any loss resulting from, in connection with, or arising from the Escrow Money, including, but not limited to, the failure, refusal or inability of any institution with which the Escrow Money has been deposited to repay it; or (iv) any action taken or omitted in reliance upon any instrument, including any written notice or instruction provided for in this Agreement. Escrow Agent may rely upon any instrument, pursuant to (iv) in the preceding sentence, as being duly authorized and executed, and valid and effective, and as containing accurate information and genuine signatures. Pursuant to instructions of Buyer and Seller, the Escrow Money shall be deposited in a Trust. In the event said monies exceed $100,000.00, Escrow Agent shall not be liable due to the fact that said monies exceed the maximum amount insured by the Federal Deposit Insurance Corporation.
iv. Interpleader. Notwithstanding anything in this agreement to the contrary, in the event of a dispute between Buyer and Seller arising prior to or at the time of the delivery or other disposition of the Escrow Money by Escrow Agent pursuant hereto, which dispute shall be sufficient, in the sold discretion of Escrow Agent, to justify its doing so, Escrow Agent shall be entitled to either: (i) hold the Escrow Money until receipt by the Escrow Agent of an authorization in writing, executed by all persons having an interest in said dispute, directing the disposition of the Escrow Money, or in the absence of such authorization, (ii) tender the Escrow Money into the registry or custody of any court of competent jurisdiction, together with such legal pleadings as it may deem appropriate, and thereupon Escrow Agent shall be discharged from all further duties and liabilities under this Agreement. Any such legal action may be brought in such court as Escrow Agent shall determine to have jurisdiction thereof. Escrow Agent=s determination of whether a dispute exists between Buyer and Seller and Contractor shall be binding and conclusive upon all parties hereto, notwithstanding any contention that no dispute exists. All costs and expenses incurred by Escrow Agent in taking any action pursuant to this paragraph (including the Escrow Agent’s time at usual and customary hourly rates) shall be covered by and paid pursuant to the indemnification of Escrow Agent contained in the following paragraph.
v. Indemnity. Buyer and Seller shall and do hereby jointly and severally indemnify, defend, and hold Escrow Agent harmless from, against, and in respect of: (i) any and all of any kind whatsoever whether existing on the date hereof or hereafter arising, incurred by Escrow Agent by reason of, from or in connection with this Agreement or any action taken or not taken by Escrow Agent under or in connection with this Agreement; and (ii) any and all counsel fees (paid to outside attorneys or amounts representing the fair value of legal services rendered for itself), expenses, disbursements of counsel, amounts of judgments, demands, assessments, costs, fines or penalties, and amounts paid in compromise or settlement, incurred fr sustained by Escrow Agent by reason of, in connection with or as a result of any claim, demand, action, suit, investigation or proceeding (or any appeal thereof or relating thereto or other review thereof) incident to the matters covered by the immediately preceding clause (i).
vi. Willful Default. The Escrow Agent shall not be responsible for any act or failure to act on its part, including misdelivery to Buyer of Seller of monies subject to this escrow, except in the case of its own willful default or gross negligence. The Escrow Agent shall be automatically released from all responsibility and liability under this Agreement upon the Escrow Agent’s delivery or deposit of the Escrow Money and accrued interest thereon in accordance with the requirements of this Agreement.
vii. Termination. If Escrow Agent shall notify Buyer and Seller of its desire to be relieved of any further duties and liabilities hereunder, then Escrow Agent shall deliver the Escrow Money to a successor escrow agent designated in writing by Buyer and Seller. If Buyer and Seller shall fail to agree upon and designate a successor escrow agent within ten (10) days after having been requested by Escrow Agent to do so, then Escrow Agent shall in its discretion designate the successor escrow agent. Immediately upon agreement by the successor escrow agent to be bound by all the terms and conditions of this Agreement, escrow Agent shall be relieved of any and all duties and liabilities under or in connection with this Agreement; provided, however, that no successor escrow agent shall assume liability for the acts or omissions of its predecessor escrow agent(s) hereunder.
viii. Notices. Any notice or communication required or permitted hereunder shall be in writing and shall be sent either by (a) personal delivery service with charges therefore billed to shipper; (b) expedited delivery service with charges therefore billed to shipper; or (c) United States Mail, postage prepaid, certified mail, return receipt requested, addressed to Buyer, Seller, Contractor or Escrow Agent, as the case may be, at the address set forth below, or at such other address as Buyer, Seller, Contractor, or Escrow Agent may have designated by notice to the others given as provided above. Any notice or communication sent as above provided shall be deemed given or delivered: (a) upon receipt if personally delivered (provided that such delivery is confirmed by the courier delivery service); (b) if sent by United States Mail, on the date appearing on the return receipt therefore, or if there is no date on such return receipt, the receipt date shall be presumed to be the postmark date appearing on such return receipt; or (c) on the date of delivery by any expedited delivery service. Any notice or communication required or permitted hereunder shall be addressed as follows:
To Buyer: _________________________________________
_________________________________________
_________________________________________
To Agent: _________________________________________
_________________________________________
_________________________________________
To Seller: _________________________________________
_________________________________________
_________________________________________
To Escrow
Agent: _________________________________________
_________________________________________
_________________________________________
ix. Successors and Assigns. The provision of this Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective heirs, executors, administrators, personal representatives, successors, and assigns.
x. Recitals. The foregoing recitals constitute a material part of this Agreement and by this reference are incorporated herein.
IN WITNESS WHEREOF, the parties hereto have set forth their hands and seals as of the day and year first above written.
___________________________________ ______________________________
Buyer: Seller:
Escrow Agent:
__________________________________
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