ESCROW AGREEMENT, 에스크로 계약서, 영문계약서

ESCROW AGREEMENT

 

 

This Escrow Agreement is entered into [DATE]

 

AMONG

 

[AAA] (Hereinafter referred to as the “Borrower”)

 

AND

 

[BBB] (Hereinafter referred to as the “Lender”)

 

AND

 

[CCC Bank] (Hereinafter referred to as the “Agent’ and/or “Holder”)

 

The Borrower, the Lender and the Agent are sometimes hereinafter collectively referred to as the “Parties”. The [CCC] Bank is sometimes hereinafter referred to as the “[CCC]”.

 

RECITALS:

 

A.         [AAA] Holdings Ltd., the Buyer of the [•] and the Borrower for the loan amount of USD [•], shall open an escrow account with the [CCC].

 

B.          [BBB], the Lender and the mortgagee of the aforementioned loan, shall have a security interest of the [•].

 

C.          The [CCC] Bank as an Escrow Agent/or Escrow Holder of such an undertaking shall provide the safekeeping of the loan proceed, pay all the rightful parties’ claims upon the closing of the deal and transfer the “Right to file” to the Lender after the perfection of security interest and send a copy of the registration book of the aforementioned property to the Lender every [•] months.

 

THEREFORE, in consideration of the foregoing recitals the parties agree as following terms and conditions:

 

1.          The Borrower’s execution of the loan documents shall be deemed to be the Borrower’s approval of the terms and conditions of said loan and Escrow Agent’s execution to comply with the Lender’s instruction.

 

2.          The Borrower is to furnish, when required, a new fire insurance policy satisfactory to the Lender. The Lender may authorize such insurance payment of bill if presented to Escrow Agent.

 

3.          The Lender authorizes and instructs the Escrow Agent to pay closing costs including but not necessarily limited to: the loan origination fee as required by the Lender if not already paid by the Borrower at the time the loan proceeds are deposited with the Escrow Agent, premium for new fire insurance policy or increase in premium for existing coverage, escrow fees, recording fees, and any other charges as may be required by the Lender and/or Escrow Agent for the initial duration of this Agreement. For this purpose, the Lender shall maintain the minimum balance no less than USD [•] as required by the Agent to cover the unexpected contingent expenses or tax payments.

 

4.          Amount of the Escrow Fee

 

  The [CCC] shall charge [•] basis point ( [•] percent) to the funds deposited with the [CCC] for the purpose of said undertaking for the first year from the date on which this agreement becomes effective and [•] basis point ( [•] percent) per year for the years thereafter.

Any unexpected contingent expenses, if arise, shall be charged to the funds.

 

5.          Duration

 

  The duration of the Agreement is [•] year from the date on which this Agreement shall become effective and it may be extended by the agreement between the Lender and the Agent. If the duration is extended, the fee shall be paid by the Lender and never be charged to the funds or to the Borrower in any circumstances whatsoever.

 

6.          Deposit and Disbursement of Funds

 

  All funds received in relation to this Escrow Agreement and for the purpose of repayment of the loan by the Borrower shall be deposited in the escrow account with the [CCC]. Said funds will not earn interest. The Agent shall make all disbursements: the Agent is not to be responsible for any delay in closing if funds received by Agent are not available for immediate withdrawal. The [CCC] is not authorized to close escrow account or disburse until good funds as provided in this Agreement have been confirmed in escrow account. If any check submitted to the Agent is dishonored upon presentment for payment, the Escrow Agent is authorized to notify all principals and/of their respective agents of such nonpayment.

 

7.          Close of Escrow

 

  The phrase “Close of Escrow” (or COE or CE) as used in this Agreement means the date on which change of the property ownership as well as the creation of mortgage thereon is duly registered, unless otherwise specified, and the minimum balance requirement is withdrawn by the Agent. It is acknowledged that the [CCC] is not responsible for the creation and perfection of the said mortgage.

 

8.          Delivery, Receipt and Notices

 

  All written notices, communications, changes of instructions and documents intended for the [CCC] are required to be delivered timely at the office of the [CCC] as set forth herein Delivery to each party shall be made by registered mail or air mail, if international, or by telex or facsimile as follows, as elected by the party making such delivery:

 

 

   [To [CCC] :]

 

   [To Lender :]

 

   [To Borrower :]

 

The receipt thereof shall be deemed to be [•] days after posting for mail sent in [Name of the Country], or [•] days for international air mail; or [•] hours after dispatch of facsimile or telex. All the undersigned documents, balance notice and statements are to be mailed to the respective addresses shown above unless otherwise directed.

 

 

9.          Prorations, Adjustments and Demands

 

  Unless otherwise specified in writing, all prorations or adjustments are to be made as of Close of Escrow account on the basis of a thirty (30)-day month. The [CCC] is to use the information contained in the latest available real property tax statement as furnished by the tax authority. The [CCC] is not authorized to pay any encumbrances necessary to place title in condition called for herein, including but not limited to prepayment penalties without approval of the undersigned.

 

10. Supplemental Taxes

 

  Parties acknowledge that the subject property may be subject to real property supplemental taxes due as a result of change of ownership taking place through this escrow. Any adjustment due on receipt of supplemental tax bill shall be paid by the Buyer outside of the escrow account and the [CCC] is released from all liability in connection with the same.

 

11. Utilities, Water, Garbage and Environmental Issues

 

Transfer of utilities, water and garbage service, or any interruptions or cancellations thereof are to be settled by the Buyer and the Seller directly. The [CCC] shall not be responsible for any late payments or nonpayment for any of these services. It is acknowledged that the [CCC] has made no investigation concerning the property as to environmental or hazardous material issues, and the [CCC] is released of any responsibility or liability in connection with such issues.

 

12. Possession

 

  Possession of the subject property shall be settled by the Buyer and the Seller, and the [CCC] shall not be liable or responsible for such possession.

 

13. Recordation of Instructions

 

  The [CCC] is authorized and instructed to record any documents delivered through this Escrow Agreement, the recording of which is necessary or proper in the issuance of the requested policy or policies of this insurance. Such insurance policy or policies shall be secured for Lender and such filing fee is to be charged to the funds.

 

14. Authorization to Furnish Copies

 

  The [CCC] is authorized to furnish copies of preliminary reports, inspection reports, escrow instructions, supplements, amendments of notice, cancellations and closing statements in this Escrow Agreement to the real estate broker(s) and Lender(s) referred to in the escrow. The [CCC] may do so without incurring liability to any part.

 

15. Fire, Flood and Hazard Insurance

 

  Other than as may be specifically instructed by the Lender, the [CCC] is not to be concerned with nor make any inquiry as to ay fire, flood, hazard and other liability insurance.

 

16. Personal Property Taxes

 

  No examination or insurance as to the existence, amount of payment of personal property taxes is required of the [CCC] unless specifically instructed.

 

17.        Action in Interpleader

 

The Parties expressly agree that the [CCC], as Escrow Holder, has the absolute right at its election to file an action in interpleader requiring the Parties to answer and litigate their several claims and rights among themselves. The [CCC] is authorized to deposit with the clerk of the court all documents and funds held in this escrow account. In the event such action is filed, the Parties jointly and severally agree to pay the [CCC]’s cancellation charges and costs, expenses and reasonable attorney’s fees which the [CCC] is required to expend in this interpleader action. Upon the filing of the action, the [CCC] shall be fully released from all obligations to further perform any duties otherwise imposed by the terms of this escrow.

 

18.        Usury

 

The [CCC] is not to be concerned with any question of usury in the processing of this Escrow Agreement and the [CCC] is hereby released of any responsibility and liability thereof.

 

19.        Cancellation of Escrow Agreement

 

  Any principal requesting that the [CCC] cancel this Escrow Agreement shall file notice of demand to cancel in the [CCC]’s office in writing. The [CCC] shall within a reasonable time thereafter mail or otherwise deliver one copy of such notice of demand to cancel to the principals of their agents.

 

20.        Conflicting Instructions

 

  Should the [CCC] become aware of any conflicting instruction, demands or claims with respect to this Escrow Agreement or with respect to any money or property deposited herein or affected, the [CCC] shall have the right to discontinue any or all further acts on its part until in receipt of consistent instructions or until the conflict is resolved to the [CCC]’s satisfaction. In the event that any dispute between the parties is submitted to arbitration award or decision is “binding” or “final”.

 

21.        Termination of Agency Obligation

 

If there is no action in this Escrow Agreement for any six month period, the [CCC]’s agency obligation shall terminate at its option and the [CCC] shall be authorized to return all documents, monies or other items to the parties depositing same. This shall not limit the [CCC]’s right to withdraw as Escrow Agent from this transaction at any time. In the event of termination of the [CCC]’s agency obligations, the parties shall pay the [CCC] all fees, charges and any expenses incurred.

 

22.        Right of Resignation

 

  The [CCC] has the right to resign as Escrow Holder, upon reasonable written notice, and it is acknowledged that five calendar days shall be deemed reasonable under this paragraph. If such right is exercised, the [CCC] is authorized to return all funds and documents to the party who deposited them and the [CCC] shall have no further liability in this Escrow Agreement.

 

23.        Memoranda

 

The [CCC] is to be concerned only with the directives specifically set forth in the escrow instructions and amendments hereto, and is not to be concerned with or liable for items designated as “Memoranda”, nor with any other agreement or contract.

24.        Destruction of Records

 

  The [CCC] is authorized to destroy or otherwise dispose of any and all documents, papers, instructions, correspondence and other material pertaining to this escrow at the expiration of [•] years from the close of escrow or cancellation thereof, without liability and without further notice to Parties in the transaction.

 

25.        Change of Ownership

 

  If any sovereign government authority requires that Buyer shall complete a preliminary change of ownership permission for this type of real estate transaction, it is the Buyer’s sole responsibility as the validity, sufficiency or preparation of such permission.

 

26.        Reporting Requirements to Tax Authority

 

  The Parties acknowledge that the [CCC] may be required to report that this real estate transaction, or aspects thereof, to the government tax authority. The Parties authorize the [CCC] to make such reporting, as it deems necessary, and agree to hold the [CCC] harmless for such reporting. The Parties also agree to provide the [CCC] with all documentation and information requested by the [CCC] to comply with reporting requirements.

 

27.        Fax Transactions

 

  The [CCC] is authorized to accept and rely upon instructions and amendments thereto as such may be submitted via facsimile machines (“Fax”), and the Parties agree that Fax signature shall be considered the same as the original if such signature had been deposited into escrow.

 

28.        Binding Effect

 

  This Agreement shall insure to the benefit of and shall be binding upon the Parties hereto and their representatives, heirs, successors, legal representatives and assigns.

 

29.        Counterparts

 

  This Agreement may be executed in counterparts, each of which shall be deemed to be An original, but such counterparts, when taken together, shall constitute but one agreement.

 

30.        Amendment

 

  This Agreement may only be amended by the written consent of all Parties to this agreement at the time of such amendment.

 

31.        No Representations

 

  There are no representations, agreements, arrangements or understandings, oral or written between and among the Parties hereto, relating to the subject matter contained in this Agreement, which are not fully expressed herein.

 

32.        Governing Law

 

  The validity, interpretation, construction and performance of this Agreement shall be controlled by and construed under the laws of [Name of the Country].

 

 

33.        Severability

 

  In case any one or more of the provisions contained in this Agreement shall be held invalid by a court of competent jurisdiction, that shall in no way affect the legality and enforceability of the remaining provisions contained herein.

 

34.        Confidentiality

 

  The Parties hereto acknowledge that any information contained in this agreement or any other information which is learned by one party about each other, shall be dept confidential as discussed herein to any third party without the other party’s written consent. Each party consents to the party’s legal counsel reviewing this Agreement and arrangements herein. Each party shall be bound by the non-disclosure requirements discussed herein as to acts by its gents, representatives and counsel.

 

All Parties acknowledge that the [CCC] has not given and will not give any legal, tax, real estate or investment advice in the escrow, nor has it made nor will it make any investigation, representations, or assurances as to such matters or as to compliance of this transaction with any tax, securities or any other Korean or international laws, regulations or treaties. It is agreed and understood that each party shall seek and obtain independent legal counsel and other professional consultants to all such matters.

 

 

IN WITNESS WHEREOF this Agreement is executed by the Parties hereto the day and year first above written.

 

 

 

The Borrower

For and on behalf of

[AAA]

                 

Signed by : [•]

Official title : [•]

 

 

The Lender

For and on behalf of

[BBB]

 

                 

Signed by : [•]

Official title : [•]

 

 

The Escrow Agent

For and on behalf of

[CCC Bank]

 

                 

Signed by : [•]

Official title : [•]

5 Escrow Agreement.doc