Drafting Escrow Agreements in Business & Commercial Transactions – 2019 – The Missouribar

Originally presented on May 21, 2019

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 held in 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.

• Defining conditions for release of property in basic, clear, explicit terms to reduce risk
• Drafting release instructions to tightly synchronize with the underlying transaction
• Inherent risks involved with escrow agent determinations 
• Co-mingled and held in trust funds v. segregated funds
• Timing – how drafting too early might miss key terms in the underlying agreement
• Choosing the right escrow agent depending on the nature of the transaction
• Reducing escrow agent through E&O or other insurance 

Speaker: Steven O. Weise, Proskauer Rose, LLP, Los Angeles, CA

NOTE: This program was originally produced as a telephone seminar and is available on demand in streaming audio. This material qualifies for self-study credit only. Pursuant to Regulation 15.04.5, a lawyer may receive up to six hours of self-study credit in a reporting year. Self-study programs do not qualify for ethics or elimination of bias credit.