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1 CLE hour
Every escrow agreement has a degree of intrinsic uncertainty. Whether the agreement is for the release of money, property title, software code, or something else, the escrow agent has to determine whether certain conditions have been met before releasing the property subject to escrow. Making those determinations always involves a degree of judgement; and that judgment is always subject to dispute. In this sense, escrow agreements, which are intended to limit risk and enhance the certainty of a transaction, actually introduce another layer of risk, at least when they are not very carefully drafted to capture all the material details of the underlying transaction in as basic, clear and explicit terms as possible. When the escrow agreement does not achieve this degree of clarity, the escrow agent may be caught in substantial dispute with one or several counter-parties, threatening the underlying transaction. This program will provide you with a practical guide to drafting escrow agreements in transactions.
• Drafting effective escrow agreements in transactions
• Mergers, commercial loans, real estate transactions, transfers of software code
• Defining conditions for release of property in basic, clear, explicit terms to reduce risk
• Understanding of risks when an escrow agent determines whether conditions are met or not
• Differences between co-mingled and held in trust funds versus segregated funds
• Drafting release instructions to tightly synchronize with the underlying transaction
• Timing – how drafting an escrow agreement early in the process might miss key terms in underlying agreements
• Choosing the right escrow agent depending on the nature of the transaction
• Reducing escrow agent through E&O or other insurance
Steven O. Weise is a partner in the Los Angeles office Proskauer Rose, LLP, where his practice encompasses all areas of commercial law. He has extensive experience in financings, particularly those secured by personal property. He also handles matters involving real property anti-deficiency laws, workouts, guarantees, sales of goods, letters of credit, commercial paper and checks, and investment securities. Mr. Weise formerly served as chair of the ABA Business Law Section. He has also served as a member of the Permanent Editorial Board of the UCC and as an Advisor to the UCC Code Article 9 Drafting Committee. Mr. Weise received his B.A. from Yale University and his J.D. from the University of California, Berkeley, Boalt Hall School of Law.