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Agreement For Two Party Exchange Of Real Estate Property
This Agreement made [date] by and between [Name] of [Address] hereinafter referred to as "First Party" and [Name] of [Address] hereinafter referred to as "Second Party".
Agreement is as follows:
1. First Party is the owner of a certain parcel of Real Estate property known as [description], which he holds for investment and which will hereafter be referred to as the subject property.
2. First Party wishes to exchange the subject property for other property to be held for investment in an exchange which will qualify for nonrecognition of gain as designated under the specific code(s) of the Internal Revenue Service.
3. Second Party wishes to acquire the subject property, but does not currently own any investment property which would be acceptable to First Party.
4. Acquisition of Parcel. Second Party agrees to acquire investment property to be designated by First Party within [number] days hereof, hereinafter referred to as the designated property, and Second Party agrees further to exchange the designated property for the subject property upon the terms hereinafter set forth.
5. Exchange of Property. First Party agrees to exchange the subject property for the designated property upon the terms hereinafter set forth.
6. Assumption of Loans. The exchange shall be conditioned on Second Party's ability to assume the following loans of record secured by the subject property:
Interest % ...........
7. Equity in Property. The parties agree that the present equity in the subject property, based on the loan balances shown above, is ---------- dollars ($----------). If, at close of escrow, the balances of the above loans of record shall have been reduced from the amounts shown hereinabove, as a result of obligatory loan payments made after this date, then the agreed equity shall be increased by the amount of such loan reduction.
8. Cost of Acquired Property. Second Party's net cost of the designated property shall be equal to its purchase price including any and all costs of acquisition of the designated property and less any encumbrance which is to be assumed or taken subject to by First Party.
9. Differences in Value. If Second Party's net cost of the designated property shall be in excess of the agreed equity in the subject property, First Party shall pay to Second Party the excess in the form of [describe manner of payment]; and if the agreed equity in the subject property shall be in excess of Second Party's net cost of the designated property, Second Party shall pay to First Party the excess in the form of [describe manner of payment].
10. Termination of Contract. If an applicable investment property shall not have been designated by First Party within [number] days from the execution of this Agreement, this Agreement shall terminate and neither party shall be obligated to perform any of the terms and conditions hereof. Provided, however, that by an agreement in writing, this Agreement may be extended by the parties.
11. Designation of Property. If a property is designated, Second Party shall use his best efforts to acquire the same for the price and in the manner designated and exchange said property with First Party for the subject property; in the event that the designated property cannot be acquired and exchanged within an additional period of [number] days from the date designated, at the option of either party to this Agreement, all of the rights and obligations of the parties shall terminate. Provided, however, that in the event Second Party shall become obligated to acquire the designated property, this Agreement may not be terminated by First Party, so long as Second Party shall be diligently proceeding to complete the acquisition of the designated property.
12. Form of Designation. First Party agrees to use his best efforts to select a suitable property and designate the same within the time provided herein. Such designation shall include specification of the maximum purchase price of such property, acceptable to First Party, acceptance liens and encumbrances if any, any conditions of his acceptance of the designated property, and the name and address of the owner to whom offers should be addressed.
13. Simultaneous Closing. The parties agree that the exchange shall be completed simultaneously with the acquisition of the designated property by Second Party, through a single escrow or through escrows which shall be closed concurrently. [Name] is hereby designated as escrow holder.
14. Commissions. Second Party shall not be obligated to pay any real estate commission on the exchange, and any real estate commission payable shall be paid by First Party.
15. Encumbrances. In addition to any encumbrances referred to above, both parties shall take title subject to
(a) real estate taxes not yet due and
(b) covenants, conditions, restrictions, reservations, rights, rights of way, and easements of record, if any, that do not materially affect the value or intended use of the property.
16. Title Examination. [Number] days from date of acceptance hereof are allowed each of the parties hereto for examination of title to the properties to be acquired by them and to report in writing any valid objections thereto. Any exceptions to title that would be disclosed by examination of the records shall be deemed to have been accepted unless reported in writing within said [number] days. If any objections are reported, the conveying party shall use all due diligence to remove such exceptions at his own expense within [number] days thereafter. But if such exceptions cannot be removed within the [number] days allowed, all rights and obligations hereunder shall terminate, unless the party acquiring the property so affected elects to accept the property subject to such exemptions.
17. Rents, Taxes, Etc. Rents, taxes, premiums on insurance acceptable to the party insured thereby, interest, and other expenses of the herein properties shall be prorated as of the date of recordation of the deeds. Security deposits, advance rentals, or considerations involving future lease credits shall be credited to the party acquiring title.
18. Possession. Possession shall be delivered upon close of escrow.
19. Severability. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
20. Waiver Of Contractual Right. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement.
21. No Representations. Neither party has made any representations nor promises, other than those contained in this agreement or in some further writing signed by the party making the representation or promise.
22. Interpretation. This Agreement will in all events be construed as a whole, according to its fair meaning, and not strictly for or against either party. The headings, captions, and titles in this legal Agreement are merely for reference and do not define, limit, extend, or describe the scope of this Agreement or any provision herein. Unless the context requires otherwise,
(a) the gender (or lack of gender) of all words used in this Agreement includes the masculine, feminine, and neuter, and
(b) the word including means including without limitation.
23. Invalid Provisions. If any provision of this Agreement is held to be illegal, invalid, or unenforceable under any present or future law, then that provision will be fully severable. This Agreement will be construed and enforced as if the illegal, invalid, or unenforceable provision had never comprised a part of this Agreement, and the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid, or unenforceable provision or by its severance from this Agreement. Furthermore, in lieu of each such illegal, invalid, or unenforceable provision, there will be added automatically, as a part of this Agreement, a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid and enforceable.
24. Arbitration. Any disputes pertaining to said agreement being affairs that cannot be settled amicably shall be submitted to an arbitrator under the Rules of the Australian Arbitration Association or like organisation in the City of [city], whose award may be reduced to judgment in any court of competent jurisdiction.
25. Further Assurances. In connection with this Agreement and the transactions contemplated hereby, each party to this Agreement will execute and deliver any additional documents and perform any additional acts that may be necessary or appropriate to effectuate and perform its obligations under this Agreement and the transactions contemplated hereby.
26. Entire Agreement. This Agreement contains the entire agreement of the parties and there are no other promises or conditions in any other agreement whether oral or written. This Agreement supersedes any prior written or oral agreements between the parties.
27. Applicable Law. This Agreement shall be governed by the laws of the State of [State].
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties thereto.
This Section for Notary:
STATE OF -------)
) ss: [date]
COUNTY OF ------)
On [Date] before me, [Name of Notary], notary, personally appeared [Name of Person(s) Involved], personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
[Name of Notary Public]
My commission expires: [date]