ESCROW AGREEMENT
Fleet National Bank, as escrow agent (the Escrow Agent), ________________
_____________ (the Seller), and _________________________________ (the Buyer)
enter into this Escrow Agreement (the Agreement) as of (date).
A. The defined terms used in this Agreement and not defined herein
shall have the meanings indicated in the Loan Servicing Purchase and Sale
Agreement (the "Agreement") a copy of which is attached.
B. As provided in the Agreement, the Buyer is required from time to
time to deposit in escrow an aggregate amount of _____________. Subject to
the terms and conditions in this Agreement, money in the escrow is to be
released and paid over to the Seller upon the Escrow Agent's receipt of joint
written instructions from the Seller and the Buyer. The Buyer and Seller
have agreed to establish the escrow with the Escrow Agent pursuant to the
terms set forth herein.
NOW THEREFORE, the Escrow Agent, the Seller and the Buyer, in
consideration of the covenants herein contained, agree as follows:
1. ESCROW AGENT. The Escrow Agent, having as of the date of this
Agreement, an office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, is hereby
appointed by the Seller and the Buyer and agrees to have as the Escrow Agent
hereunder.
2. ESCROW FUND. The Escrow Agent hereby agrees to deposit all
monies from time to time, provided by the Buyer hereunder, into an escrow
fund (the Escrow Fund) to be held in the custody of the Escrow Agent separate
and apart from all other funds and accounts of the Seller, the Buyer or the
Escrow Agent. Upon three (3) Business Days prior to notice of the Escrow
Agent, the Buyer shall have the right to deliver additional monies to the
Escrow Agent for deposit in the Escrow Fund. The Escrow Agent agrees to
accept such monies, such monies becoming apart of the Escrow Fund subject to
the terms and conditions herein.
3. ESCROW FUND INVESTMENTS. All monies delivered by the Buyer to
the Escrow Agent for deposit in the Escrow Fund shall be invested by the
Escrow Agent in such fund or funds as Buyer and Seller shall specify in
writing. Such investment shall be deemed to be part of the Escrow Fund. The
Escrow Agent shall not be liable for any loss resulting from the making or
retention of any investment in accordance with this Agreement.
4. RELEASE OR RETURN OF ESCROW. The escrow hereby created shall be
released upon receipt by the Escrow Agent of joint written instructions from
the Seller and the Buyer (the Escrow Release Condition).
Upon the occurrence of the Escrow Release Condition, the Escrow Agent
shall wire transfer the Escrow Fund, less any amounts which may be subtracted
as provided for in this Agreement, in accordance with wire transfer
instructions then provided.
After the Escrow Funds have been released or returned, the Escrow Agent
shall have no further liability to either the Seller or the Buyer.
5. LIABILITY OF ESCROW AGENT LIMITED. The acceptance by the Escrow
Agent of its duties under this Agreement is subject to the following terms
and conditions, which parties to this Agreement agree shall govern and
control with respect to its rights, duties, liabilities and immunities.
a. The Escrow Agent shall be protected in acting upon any
written notice, 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 acceptability
of any information therein contained which the Escrow Agent in good faith
believes to be genuine and what it purports to be.
b. The Escrow Agent shall not be liable for any error of
judgment, or for any act done or steps 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, except its own gross negligence or willful
misconduct and the parties shall indemnify and hold the Escrow Agent harmless
against any and all claims, liability, loss, costs, and expenses (including
attorneys' fees and court costs) arising out of the performance of this
Agreement excepts its own lack of good faith, gross negligence or willful
misconduct. In the event that such costs, or expenses are incurred by the
Escrow Agent, the Escrow Agent shall be entitled to reimburse itself out of
the Escrow Funds.
c. The Escrow Agent may consult with, or obtain advice from,
legal counsel in the event of any question as to any of the provisions hereof
or its duties hereunder, and it shall incur no liability and shall be fully
protected in acting in good faith in accordance with the opinion and
instructions of such counsel.
d. The Escrow Agent is only a stake holder with respect to any
funds deposited hereunder, and in the event of a dispute among the parties
hereto, the Escrow Agent may continue to hold the money from the Escrow Fund
until joint instructions from the Seller and the Buyer or an order of court
of jurisdiction directs disposition of the money; or the Escrow Agent may, at
the expenses of the Seller and the Buyer, deposit by appropriate procedure
the money into court.
6. ESCROW AGENT'S DUTIES. The Escrow Agent shall perform such
duties in the administration of this Agreement, and only such duties, as are
specifically set forth in this Agreement.
7. NOTICES. All notices, requests, demands or instructions to the
Seller, the Buyer or to the Escrow Agent which are given hereunder shall be
in writing and shall be deemed sufficiently given if sent by registered or
certified mail, postage prepaid or delivered during the
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business hours as follows: (i) to the Buyer at its office at (name and
address) (ii) to the Seller at its office at (name and address) and (iii) to
the Escrow Agent at its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇, attention of the Corporate Trust Department.
8. ESCROW AGENT COMPENSATION. The Buyer shall pay when billed
compensation to the Escrow Agent for its services under this Agreement. The
Buyer also agrees to pay when billed Escrow Agent's costs and expenses, the
including fees and expenses of counsel to the Escrow Agent incurred in
connection with its duties hereunder. To secure payment of the Escrow
Agent's compensation under this Agreement, the Escrow Agent shall have a lien
(legal and equitable) prior to the Seller's and the Buyer's on all money or
property held under this Agreement by the Escrow Agent.
9. SUCCESSORS ASSIGNS. The rights and obligations of the parties
to this Agreement shall insure to and be binding upon their respective
successors and assigns.
10. SEVERABILITY. If any one or more of the covenants or agreements
provided for this Agreement on the part of the Seller, the Buyer or the
Escrow Agent to be performed should be determined by a court or competent
jurisdiction to be contrary to law, such covenant or agreement shall be
deemed and construed to be severable from the remaining covenants and
agreements herein contained and shall in no way affect the validity of the
remaining provisions of this Agreement.
11. GOVERNING LAW. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Connecticut and any
suits and actions arising out of this Agreement shall be instituted in a
court of competent jurisdiction in said State.
12. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original; but such
counterparts together shall constitute one and the same instrument.
IN WITNESS WHEREFOR, this Agreement has been signed as of the day and
year shown above.
By:
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Title:
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By:
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Title:
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FLEET NATIONAL BANK,
AS ESCROW AGENT
By:
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Title:
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