Escrow Agreement

Escrow Agreement for Sale of Real Property and Deposit to Protect Purchaser Against Cost of Required Remedial Action

Escrow Agreement made on the day of , 20,

between (Seller) of

referred to herein as Seller, and

with its principal office located at

referred to herein as Buyer, and (Escrow Agent), of

Whereas, Seller and Purchaser have entered into a certain purchase agreement dated (date) (the Purchase Agreement), as amended by that certain Amendment to Purchase Agreement dated (date), pursuant to which Seller agreed to sell and Purchaser agreed to purchase certain property located at

as more fully described in the Purchase Agreement (the Premises) and

Whereas, pursuant to the Amendment, a copy of which is attached to this Agreement as Exhibit A, the parties have agreed to establish an escrow in the amount of $ (the Escrow Amount) to protect Purchaser against the cost of required Remedial Action (as defined in the Amendment) at the Premises;

Now, therefore, for and in consideration of the mutual covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. Remedial Action

It is acknowledged by the parties that certain Remedial Action may be required at the Premises as set forth in the Amendment.

2. Escrow Amount

The parties have agreed to deposit the sum of $ (the Escrow Amount) into an escrow account bearing interest at a money market rate to be held by Escrow Agent (the Escrow Account).

3. Purchaser’s Right to Withdraw

If the (e.g., Environment Protection Agency) or other governmental agency or authority (Agency) having jurisdiction over the Premises, shall require any Remedial Action within months from the date of this Agreement (the Remedial Action Period), the Purchaser shall have the right to withdraw up to $ from the Escrow Account to cover any costs and expenses incurred by Purchaser or anticipated to be incurred by Purchaser in connection with any Remedial Action; provided, however, that such costs and expenses are actually incurred within months from the date of this Agreement.

Purchaser shall notify Seller and Escrow Agent of its intention to draw upon the Escrow Account by giving days' written notice to the parties. Unless Seller has objected to such withdrawal from the Escrow Account within days of Purchaser's notice, then Escrow Agent is directed to immediately pay the amount demanded in such notice to Purchaser.

4. Agent’s Duties Upon Objection

If Escrow Agent shall have received the notice of objection provided for in Section 3 within the time prescribed, Escrow Agent shall continue to hold the Escrow Amount until (a) Escrow Agent receives written notice from Seller and Purchaser directing the disbursement of the Escrow Amount, in which case, Escrow Agent shall then disburse the Escrow Amount in accordance with the direction, or (b) in the event of litigation between Seller and Purchaser, Escrow Agent shall deliver the Escrow Amount to the clerk of the court in which the litigation is pending, or (c) Escrow Agent takes such affirmative steps as Escrow Agent may, in Escrow Agent's reasonable opinion, elect in order to terminate Escrow Agent's duties including, but not limited to, depositing the Escrow Amount with the court and bringing an action for interpleader, the costs of which are to be borne by whichever of Seller or Purchaser is the losing party.

5. Interest

All interest earned on the Escrow Account shall be payable to Seller within days after the end of each month during the Remedial Action Period.

6. Release of Funds to Seller

If a notice of Remedial Action is not issued by the Agency within the Remedial Action Period, the entire Escrow Amount shall be released to Seller. If Remedial Action is required, any funds remaining in the Escrow Account months from the date of this Agreement shall be released to Seller less any sums requested by Purchaser to be released to Purchaser but objected to by Seller.

7. Indemnification

Seller and Purchaser agree to jointly and severally indemnify, defend, and hold Escrow Agent harmless from and against, and reimburse Escrow Agent for, any and all costs, losses, damages, liabilities, claims, fees, and expenses of any nature (including, but not limited to, reasonable attorney's fees) which may be incurred by Escrow Agent resulting or arising from or in connection with this Agreement.

8. Limitation of Agent’s Liability

A. The parties acknowledge and agree that Escrow Agent has agreed to act under this Agreement as a depository only, and that Escrow Agent's only duties and obligations under this Agreement are as expressly set forth in this Agreement and no other. Escrow Agent shall not be bound or obligated in any manner by any other Agreement that may be deposited with, delivered to, evidenced by, or arise out of this Agreement, nor shall it have any obligation to interpret any such Agreements.

B. Escrow Agent shall not be liable for any action taken or omitted under this Agreement, except in the case of Escrow Agent's gross negligence or willful misconduct. Without intention to limit the generality of the foregoing in any respect, Escrow Agent shall not be responsible or liable in any manner for the sufficiency, correctness, genuineness, or validity of any instrument or signature on such instrument deposited with or delivered to it under this Agreement, or with respect to form or execution of same, or the identity, authority, or rights of any person executing or depositing or delivering the same. Escrow Agent may act in reliance on any instrument purporting to be genuine and may assume that any person purporting to give any written notice, advice, or instruction in connection with the provisions of this Agreement has been duly authorized to do so. Escrow Agent may consult with, and obtain advice from, legal counsel of its own selection in the event of any dispute or question as to the construction of any of the provisions of or its duties under this Agreement, and he shall not incur any liability if he acts or omits to act under this Agreement in good faith in accordance with the opinion and instructions of such counsel. If Escrow Agent shall consult with or obtain advice from such legal counsel, the reasonable fees and disbursements of such legal counsel shall be borne by Seller and Purchaser jointly and severally.

9. Miscellaneous

A. Wherever any notice is required or permitted under this Agreement, the notice shall be in writing and shall be deemed given on personal delivery or upon mailing in the United States mail, registered or certified mail, return receipt requested, postage prepaid, to the addresses set forth at the beginning of this Agreement or at such other addresses as are specified by written notice delivered in accordance with this Agreement:

B. Notwithstanding the foregoing, and anything herein to the contrary, any dispute under this Agreement shall be required to be resolved by binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration Association then in force and effect.

C. The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as subsequently waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred.

D. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of .

E. This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement.

F. Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if placed in writing and signed by each party or an authorized representative of each party.

G. The rights of each party under this Agreement are personal to that party and may not be assigned or transferred to any other person, firm, corporation, or other entity without the prior, express, and written consent of the other party.

H. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument.

WITNESS our signatures as of the day and date first above stated.

Sign Now