This Earnest Money Addendum Agreement (this “Agreement”) is made as of the Effective Date (as further defined in the Purchase and Sale Agreement between (“Buyer”) and (“Seller”) appointing THE LAW OFFICE OF SAM MAGUIRE, JR. P.C. (“Escrow Agent”) is effective as of the date the Escrow Agent receives the earnest money or deposit as specified in the Purchase and Sale Agreement as amended and made a part by reference.
RECITALS:
Seller and Buyer have entered into a certain purchase agreement of even date herewith (the “Purchase Agreement”) concerning real property (the “Property”) the Parties desire to establish the terms under which the Earnest Money Deposit and any future earnest money deposits made in connection with subsequent purchase and sale agreements for the Property shall be held in escrow by Escrow Agent.
In connection with the Purchase Agreement and any future Purchase Agreements , Seller and Buyer have requested Escrow Agent to receive funds to be held in escrow and applied in accordance with the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the above recitals, the mutual promises set forth herein and other good and valuable consideration, the parties agree as follows:
1. ESCROW AGENT. The Law Office of Sam Maguire, Jr. P.C. hereby agrees to act as Escrow Agent in accordance with the terms and conditions hereof.
2. INITIAL DEPOSIT/ADDITIONAL DEPOSITS. Escrow Agent shall receive an initial deposit as defined in the Purchase Agreement as amended, any additional amounts deposited with Escrow Agent shall be added to the initial deposit and together with the initial deposit and all interest earned thereon shall be referred to herein collectively as the “Escrow Fund”.
3. DEPOSITS OF FUNDS. All checks, money orders or drafts will be processed for collection in the normal course of business. Escrow Agent will deposit such funds in its Non-interest bearing IOLTA escrow account held with First Horizon Bank (Attn: Beth Heavern 404-374-9333 [email protected]) which may result in the funds being commingled with escrow funds of others for a time. Deposits held by Escrow Agent shall be subject to the provisions of applicable state statutes governing unclaimed property. Seller and Buyer will execute the appropriate Internal Revenue Service documentation for the giving of taxpayer identification information relating to this account. Seller and Buyer do hereby certify that each is aware that the Federal Deposit Insurance Corporation coverages apply to a legally specified maximum amount per depositor. Further, Seller and Buyer understand that Escrow Agent assumes no responsibility for, nor will Seller or Buyer hold same liable for any loss occurring which arises from a situation or event under the Federal Deposit Insurance Corporation coverages.
Escrow Agent shall not be responsible for any penalties, or loss of principal or interest, or any delays in the withdrawal of the funds which may be imposed by the depository institution as a result of the making or redeeming of the investment pursuant to Seller and Buyer instructions.
4. DISBURSEMENT OF ESCROW FUND. Escrow Agent may disburse all or any portion of the Escrow Fund in accordance with as required/permitted by the terms of the Purchase Agreement or Escrow Agents sole discretion. Escrow Agent shall have no responsibility to make an investigation or determination of any facts underlying such instructions or as to whether any conditions upon which the funds are to be released have been fulfilled or not fulfilled, or to whom funds are released.
5. DEFAULT AND/OR DISPUTES. In the event any party to the transaction underlying this Agreement shall tender any performance after the time when such performance was due, Escrow Agent may proceed under this Agreement unless one of the parties to this Agreement shall give to Escrow Agent written direction to stop further performance of Escrow Agent’s functions hereunder. In the event written notice of default or dispute is given to Escrow Agent by any party, Escrow Agent will promptly notify all parties of such notice. Thereafter, Escrow Agent will disburse funds according to Escrow Agents interpretation of the contract, decline to disburse funds or to deliver any instrument or otherwise continue to perform its escrow functions or upon an appropriate order of court. In the event of a dispute, Escrow Agent is authorized to deposit the Escrow Fund into a court of competent jurisdiction for a determination as to the proper disposition of said funds. Following such an action, the Escrow Agent shall be discharged from further obligations and may claim reasonable expenses and legal fees from the proceedings. All parties herein agree to indemnify the Escrow Agent against any claims, losses, or expenses arising from its duties, barring those stemming from gross negligence or willful misconduct, with this indemnity obligation surviving beyond the Agreement's term or the Escrow Agent's tenure. The Escrow Agent shall not be liable for any acts or omissions unless caused by its own gross negligence or willful misconduct, acting purely as a neutral stakeholder at the request of the parties.
6. ESCROW AGENT FEES AND OTHER EXPENSES. The Law Office of Sam Maguire, Jr PC “Escrow Agent”, may charge a fee directly to “Depositing Party” for managing the funds deposited with Escrow Agent “Escrow Fund” as follows, which may include handling both incoming and outgoing wire transfers initiated by the Depositing Party. These charges and fees as defined herein supersede any and all agreements to the contrary of any type and are exclusive only to Depositing Party and Escrow Agent. These defined fee(s) serve as a lien against Escrow Fund and cover various expenses, such as the costs associated with interest-bearing accounts, administrative expenses related to the filing of IRS Form 1099 if required, and other relevant charges. In addition, all expenses related to the maintenance of the Escrow Fund may be automatically deducted from the escrowed funds before any disbursements are made. These deductions encompass, but are not limited to, fees for the administration of the Escrow Fund, title search fees, survey costs, payoff fees of any kind and any accumulated legal fees and/or administrative staff fees. The Escrow Agent is not obligated to use its own funds for any purpose. However, if the Escrow Agent does advance funds, the Depositing Party must promptly reimburse these funds from Escrow Fund, and such reimbursement does not imply any liability on the part of the Escrow Agent. In the event of a legal dispute requiring intervention, the Escrow Agent has the exclusive and sole right to charge and subtract reasonable fees as defined herein from the escrow funds. These fees include those related to interpleading funds. All additional fees and expenses incurred in this context are the responsibility of the Depositing Party monetarily indemnifying Escrow Agent, unless a different arrangement is explicitly agreed upon in writing by all parties involved in the agreement.
7. PERFORMANCE OF DUTIES. In performing any of its duties under this Agreement, or upon the claimed failure to perform its duties hereunder, Escrow Agent shall not be liable to anyone for any damages, losses or expenses which may occur as a result of Escrow Agent so acting, or failing to act; provided, however, Escrow Agent shall be liable for damages arising out of its willful misconduct or breach or gross negligence under this Agreement. Accordingly, Escrow Agent shall not incur any such liability with respect to (i) any good faith act or omission upon advise of counsel given with respect to any questions relating to the duties and responsibilities of Escrow Agent hereunder, or (ii) any good faith act or omission in reliance upon any document, including any written notice or instructions provided for in the Purchase Agreement, not only as to its due execution and to the validity and effectiveness of its provisions but also as to the truth and accuracy of any information contained therein, which Escrow Agent shall in good faith believe to be genuine, to have been signed or presented by the proper person or persons and to conform with the provisions or this Agreement.
8. LIMITATIONS OF LIABILITY. Escrow Agent shall not be liable for any loss or damage resulting for the following:
The financial status or insolvency of any other party, or any misrepresentation made by any other party.
(b) The legal effect, insufficiency, or undesirability of any instrument deposited with or delivered by or to Escrow Agent or exchanged by the parties hereunder, whether or not Escrow Agent prepared such instrument.
(c) The default, error, action or omission of any other party to the escrow.
(d) Any loss, loss of value, or impairment of funds which have been deposited in escrow while those funds are in the course of collection or while those funds are on the deposit in a depository institution if such loss or loss of value or impairment results from the failure, insolvency or suspension of a depository institution; or
(e) The expiration of any time limit or other consequence of delay, unless a properly executed settlement instruction accepted by Escrow Agent has instructed the Escrow Agent to comply with said time limit.
(f) Escrow Agent’s compliance with any legal process including but not limited to, subpoena, writs, orders, judgments and decrees of any court whether issued with or without jurisdiction and whether or not subsequently vacated, modified, set aside or reversed.
(g) Any obligation to collect additional funds, unless such obligation is in writing and signed by the Escrow Agent.
9. HOLD HARMLESS. Buyer and Seller shall indemnify Escrow Agent and hold Escrow Agent harmless from all damage, costs, claims and expenses arising from performance of its duties as Escrow Agent including reasonable attorney’s fees, except for those damages, costs, claims and expenses resulting from the gross negligence or willful misconduct of Escrow Agent.
10. TERMINATION. This Agreement shall terminate upon the first to occur of (a) the disbursement by Escrow Agent of all of the Escrow Funds; (b) the joint written instructions of Buyer and Seller and (c) Termination of Purchase Agreement.
11. RELEASE OF PAYMENT. Disbursement in full of the Escrow Fund, in accordance with the terms, conditions and provisions of this Agreement, shall fully and completely discharge and exonerate Escrow Agent from any and all future liability or obligations of any nature or character at law or equity to the parties hereto or under this Agreement; provided, however, that, notwithstanding the foregoing, nothing in this Agreement shall be construed to discharge or exculpate Escrow Agent from any liability or obligation from the willful misconduct or breach or gross negligence of Escrow Agent.
12. This Agreement shall be binding upon and inure to the benefit of the parties respective successors and assigns.
13. This Agreement shall be governed by and construed in accordance with the Laws of the State of Georgia.
14. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which, when taken together, shall constitute but one and the same instrument.
15. Time shall be of the essence of this Agreement and each and every term and condition hereof.
16. In the event a dispute arises between Buyer and Seller under this Agreement, the losing party shall pay the attorney’s fees and court costs of the prevailing party.
