EXCHANGE AGREEMENT
EXCHANGE AGREEMENT
THIS AGREEMENT is made and entered into this _______ day of
__________, 19 ___, by and between ____________________________,
(hereinafter referred to as "First Party"), whose address is
________________________________________________________________,
and ____________________________________, (hereinafter referred
to as "Second Party"), whose address is
.
l. Transfer by First Party. First Party, in consideration of
One Dollar paid, the receipt of which is hereby
acknowledged, and the agreement of Second Party to arrange
to have the property described in paragraph 2 hereinafter
conveyed to First Party, hereby agrees to sell and convey
to Second Party, at a valuation, for the purposes of this
contract, of _____________________________ ($ _____________)
Dollars, the following described property:
together with the personal property described in Exhibit
"A", which is attached hereto and made a part hereof by
reference.
Street Address: ___________________________________________.
Said property shall be sold and conveyed subject to the
following:
a. That certain first mortgage, described as follows:
,
which has an unpaid principal balance of approximately
____________________________________ ($ ______________)
Dollars.
b. That certain second mortgage, described as follows:
,
which has an unpaid principal balance of approximately
____________________________________ ($ ______________)
Dollars.
c. That certain second mortgage, described as follows:
,
which has an unpaid principal balance of approximately
____________________________________ ($ ______________)
Dollars.
d. Covenants and restrictions of record, provided same
are not violated by the existing building and
improvements on such premises and the use thereof.
e. Other:
.
2. Transfer by Second Party. Second Party, in consideration
of One Dollar, the receipt of which is hereby acknowledged,
and of the conveyance by First Party, herein before agreed
to be made, hereby agrees to sell and convey to the First
Party, at a valuation, for the purpose sof this contract,
of _____________________________________ ($_______________)
Dollars, the following described property:
together with the personal property described in Exhibit
"B", which is attached hereto and made a part hereof by
reference.
Street Address: ___________________________________________.
Said property shall be sold and conveyed subject to the
following:
a. That certain first mortgage, described as follows:
,
which has an unpaid principal balance of approximately
____________________________________ ($ ______________)
Dollars.
b. That certain second mortgage, described as follows:
,
which has an unpaid principal balance of approximately
____________________________________ ($ ______________)
Dollars.
c. That certain second mortgage, described as follows:
,
which has an unpaid principal balance of approximately
____________________________________ ($ ______________)
Dollars.
d. Covenants and restrictions of record, provided same
are not violated by the existing building and
improvements on such premises and the use thereof.
e. Other:
.
3. Payment of Difference of Net Values. The difference
between the market values of the respective properties,
over and above encumbrances, for the purposes of this
contract, shall be deemed to be ____________________________
($ _________) Dollars, and that sum shall be due and
payable by __________ Party to ___________ Party as follows:
a. __________ Party shall execute, at the time of
closing, in favor of __________ Party, a promissory
note in the principal amount of _______________________
($ __________) Dollars, with interest thereon at the
rate of __________________ (_____%) percent, and being
due and payable as follows:
.
Said promissory note shall be secured by a purchase
money mortgage on the property, to be executed by
_____________ Party in favor of _______________ Party.
4. Financing.
a. New Financing. This Agreement is conditioned upon
_______________ Party obtaining a firm commitment for a
loan on the property to be obtained by him in this
transaction, within _______ days from the date of this
Agreement, at an interest rate not to exceed ________%,
with a term of __________ years, and in a principal
amount of not less than $ _______________. ___________
Party agrees to make application for and to use
reasonable diligence to obtain said loan. Should
______ Party fail to obtain same or to waive Buyer's
rights hereunder within said time, either party may
cancel this Agreement.
b. Existing Mortgages. Each party shall furnish, or
cause to be furnished, to the other party, a statement
from the mortgagee(s) on the property to be conveyed,
or caused to be conveyed, setting forth the principal
balance, method of payment, interest rate and whether
the mortgage is in good standing. If a mortgage
requires approval of the party who will be, at the
time of closing, assuming and agreeing to pay the
mortgage, and the mortgagee does not approve said
party, that party may rescind this Agreement; or if
the mortgagee requires an increase in the interest
rate or charges a fee for any reason in excess of
$_______________, that party may rescind this Agreement
unless the other party elects to pay such increase or
excess. The parties shall each pay 50% of any such
fee not in excess of $ _______________. Both parties
shall use reasonable diligence to obtain any required
approval. The amount of any escrow deposits held by
mortgagee shall be credited to the party assuming and
agreeing to pay that mortgage.
c. Purchase Money Mortgages. Any purchase money note and
mortgage, executed pursuant hereto, shall provide for
a thirty (30) day grace period in the event of default
if it is a first mortgage and a fifteen (15) day grace
period if a second or third mortgage, and the right of
prepayment in whole or in part without penalty; shall
not provide for acceleration or interest adjustment in
event of resale of the property; and shall be
otherwise in form and content as required by the
respective transferors and/or their attorneys;
provided, however, clauses customarily found in
mortgages and mortgage notes generally utilized by
private parties in the county wherein the property is
located may be inserted. Said mortgage shall require
the owner of the encumbered property to keep all
prior liens and encumbrances in good standing and
forbid the owner of the property from accepting
modifications of or future advances under prior
mortgages. All personal property being conveyed will,
at the option of the Seller, be subject to the lien of
the mortgage and evidenced by a recorded Financing
Statement.
5. Title Evidence. Within fifteen (15) days from the date of
this Agreement, or thirty (30) days from the date of
closing, whichever occurs first, each Seller shall, at his
expense, deliver, or cause to be delivered, to Buyer, or
his designated representative, (l) an abstract of title
prepared or brought current by a reputable and existing
abstract firm (if not existing then certified as correct by
an existing firm) purporting to be an accurate synopsis of
the instruments affecting title to the property recorded in
the public records of the county wherein the property is
located, through effective date and which shall commence
with the earliest public records, or such later date as may
be customary in the county. Each Seller shall convey a
marketable title, subject only to liens, encumbrances,
exceptions or qualifications set forth in this contract and
those which shall be discharged by seller at or before
closing. Marketable title shall be determined according
to applicable Title Standards adopted by authority of The
Bar Association for the State of ____________________ and
in accordance with the laws of the State of
____________________. Upon closing of this transaction the
abstract shall become the property of Buyer, subject to the
right of retention thereof by first mortgagee until fully
paid; or (2) a title insurance commitment, issued by a
licensed title insurer, with fee owner's title policy
premium to be paid by the respective Seller at closing,
agreeing to issue to Buyer, upon recording of the deed, an
Owner's policy of title insurance in the amount of the
purchase price, insuring the title of Buyer to the
property, subject only to liens, encumbrances, exceptions
or qualifications set forth in this Agreement and those
which shall be discharged by Seller, if any, at or before
closing.
The respective Buyers shall have thirty (30) days, if
abstract, or five (5) days, if title commitment, from date
of receiving the commitment for title insurance to examine
same. If title is found defective, Buyer shall, within
three (3) days thereafter, notify Seller in writing
specifying the defects. If said defects render title
unmarketable or uninsurable, Seller shall have one hundred
twenty (120) days from receipt of notice within which to
remove said defects, and if Seller is unsuccessful in
removing same within said time, Buyer shall have the option
of either accepting the title as it then is, or demanding a
refund of all monies paid hereunder which shall forthwith
be returned to Buyer and thereupon both parties shall be
released, as to one another, of all further obligations
under this Agreement; however, Seller agrees that he will,
if title is found to be unmarketable, use diligent efforts
to correct, or cause to be corrected, the defects in title
within the time provided therefor, including the bringing
of necessary suits.
Each party, as Seller, shall, both as to the property
and personalty being sold hereunder, furnish, or cause to
be furnished, to the other party at time of closing an
affidavit attesting to the absence, unless otherwise
provided for herein, of any financing statements, claims of
lien or potential lienors known and further attesting that
there have been no improvements to the property for ninety
(90) days immediately preceding date of closing. If a
property has been improved within said time, Seller shall
deliver releases or waivers of all mechanics' liens
executed by general contractors, subcontractors,
suppliers, and materialmen, in addition to Seller's lien
affidavit setting forth the names of all such general
contractors, subcontractors and materialmen and further
reciting that in fact all bills for work to the property
which could serve as a basis for a mechanic's lien have
been paid or will be paid at closing.
6. Effective Date. The date of this Agreement ("Effective
Date") shall be the date when the last one of the parties
has signed same.
7. Closing Date. The transactions contemplated by this
Agreement shall be closed at ____________________________,
______________, _______________, at ______ o'clock ___.m.,
on the ______ day of __________________, 19 _____, and the
deed and other closing papers delivered on that day, unless
extended by other provisions of this Agreement.
8. Restrictions, Easements, Limitations. The respective
Buyers shall take title subject to: zoning, restrictions,
reservations, prohibitions and other requirements imposed
by governmental authorities; covenants, restrictions and
matters appearing on the plat or otherwise common to the
subdivision; public utility easements of record, provided
said easements are located contiguous throughout the
property lines and are not more than 10 feet in width as to
the rear or front lines and 7 l/2 feet in width as to the
side lines, unless otherwise specified herein; taxes for
year of closing and subsequent years; assumed mortgages and
purchase money mortgages, if any; provided, however, that
none of the foregoing shall prevent use of the property for
which it is presently being used.
9. Occupancy and Leases. The respective Sellers warrant that
there are no other parties in occupancy; but if property is
intended to be rented or occupied beyond closing, the fact
and terms thereof shall be stated herein, the tenants shall
be disclosed and the Seller shall, not less than fifteen
(15) days prior to closing, furnish, or cause to be
furnished, to the Buyer, copies of all written leases and
estoppel letters from each tenant specifying the nature and
duration of said tenant's occupancy, rental rates and
advanced rent and security deposits paid by tenant. In the
event a party is unable to obtain such letter from each
tenant, the same information shall be furnished to Buyer
within said time period in the form of an affidavit, and
the respective Buyer may thereafter contact tenants to
confirm such information. Seller shall deliver and assign
all original leases to Buyer at closing. Seller agrees to
deliver occupancy of property at time of closing unless
otherwise specified below. If occupancy is to be delivered
prior to closing, Buyer assumes all risk of loss to
property from date of occupancy, shall be responsible and
liable for maintenance thereof from said date, and shall be
deemed to have accepted the property, real and personal, in
its existing condition as of time of taking occupancy
unless otherwise noted in writing.
10. Survey. The respective Buyers, within time allowed for
delivery of evidence of title and examination thereof, may
have the property he will acquire hereunder surveyed at his
expense. If the survey, certified by a property registered
surveyor, shows any encroachment of said property or that
improvements intended to be located on the property in fact
encroach on lands of others, or violate any of the
covenants of this Agreement, the same shall be treated as a
title defect.
11. Termites. The respective Buyers, within time allowed for
delivery of evidence of title and examination thereof, or
no later than ten (10) days prior to closing, whichever
date occurs last, may have the improvements he will acquire
hereunder inspected at his expense by a Certified Pest
Control Operator to determine whether there is any visible
active termite infestation or visible existing damage from
termite infestation in the improvements. If Buyer is
informed of either or both of the foregoing, he will have
seven (7) days from date of written notice thereof or four
(4) days after selection of a contractor, whichever occurs
first, within which to have all damage, whether visible or
not, inspected and estimated by a licensed building or
general contractor. The respective Seller shall pay, or
cause to be paid, valid costs of treatment and repair of
all damage up to one and one-half (l l/2%) percent of the
purchase price. Should such costs exceed that amount,
Seller shall have the option of cancelling this Agreement
within five (5) days after receipt of a contractor's repair
estimate by giving written notice to Seller, or Buyer may
elect to proceed with the transaction, in which event Buyer
shall receive a credit at closing of an amount equal to one
and one-half (l l/2%) percent of said purchase price.
"Termites" shall be deemed to include all wood destroying
organisms required to be reported under any applicable
state Pest Control Act in existence at the time of
execution of this Agreement.
12. Ingress and Egress. Each Seller warrants that there is
ingress and egress to the property sufficient for the
intended use as set out herein, the title to which is in
accordance with Paragraph 5 hereof.
13. Time of Essence. Time is of the essence of this Agreement.
Any reference herein to time periods of less than six (6)
days shall in the computation thereof exclude Saturdays,
Sundays and legal holidays, and any time period provided
for herein which shall end on a Saturday, Sunday or legal
holiday shall extend to 5:00 p.m. on the next full business
day.
14. Documents for closing. The respective Sellers shall
furnish, or cause to be furnished, the deed, mechanic's
lien affidavit, assignments of leases and any corrective
instruments that may be required in connection with
perfecting title to the property being sold. The
respective Buyers shall furnish, or cause to be furnished,
the closing statement, mortgage, mortgage note, security
agreement, and financing statements required in connection
with the property purchased.
15. Attorney's Fees. Each party shall be responsible for
paying his own attorney's fees incurred in connection with
this agreement and the transactions contemplated hereby,
unless otherwise agreed to in writing.
16. Expenses of Exchange. It is understood and agreed that
Second Party shall not incur any additional expenses or
costs because of the exchange transactions contemplated
herein, over and above those which he would normally incur
as a purchaser, and that First Party will pay, or reimburse
Second Party for, all expenses and costs incurred in
causing the property described in paragraph 2 herein above
to be conveyed to First Party.
17. Proration of Taxes (Real and Personal). All taxes shall be
prorated based on the current year's tax with due allowance
made for maximum allowable discount and homestead or other
exemptions, if allowed for said year. If closing occurs at
a date when the current year's millage is not fixed, and
current year's assessment is available, taxes will be
prorated based upon such assessment, and the prior year's
millage. If current year's assessment is not available,
then taxes will be prorated on the prior year's tax;
provided, however, if there are completed improvements on
the property by January 1st of the year of closing, which
improvements were not in existence on January 1st of the
prior year, then taxes shall be prorated based upon the
prior year's millage and at an equitable assessment to be
agreed upon between the parties, failing which, request
will be made to the County Property Appraiser for an
informal assessment taking into consideration homestead
exemption, if any. However, any tax proration based on an
estimate may upon request of either party to the
transaction be subsequently readjusted upon receipt of tax
bill on condition that a statement to that effect is set
forth in the closing statement.
18. Special Assessment Liens. Certified, confirmed and
ratified special assessment liens as of date of closing,
and not as of Effective Date, are to be paid by the
respective Seller. Pending liens as of date of closing
shall be assumed by Buyer; provided, however, that where
the improvement has been substantially completed as of the
Effective Date, such pending lien shall be considered as
certified, confirmed or ratified and Seller shall, at
closing, be charged an amount equal to the last estimate by
the public body, of the assessment for the improvement.
19. Personal Property Inspection and Repair. The respective
Sellers warrant that all major appliances, heating,
cooling, electrical, plumbing systems, and machinery are in
working condition as of closing date. Buyer may, at his
expense, have inspections made of said items by licensed
persons dealing in the repair and maintenance thereof, and
shall report in writing to Seller such items as found not
in working condition prior to taking possession thereof, or
as of the closing date, whichever is first. Unless Buyer
reports failures within said period, he shall be deemed to
have waived Seller's warranty as to failures not reported.
Valid reported failures shall be corrected at Seller's cost
with funds escrowed at closing. Seller agrees to provide
access for inspection upon reasonable notice.
20. Risk of Loss. If the improvements are damaged by fire or
other casualty prior to closing, and costs of restoring
same do not exceed 3% of the assessed valuation of the
improvements so damaged, cost of restoration shall be an
obligation of the Seller and closing shall proceed pursuant
to the terms of this Agreement with cost therefor escrowed
at closing. In the event the cost of repair or restoration
exceeds 3% of the assessed valuation of the improvements so
damaged, Buyer shall have the option of either taking the
property as is, together with either the said 3% or any
insurance proceeds payable by virtue of such loss or
damage, or of cancelling this Agreement and receiving
return of deposits made hereunder.
21. Maintenance. Between Effective Date and closing date,
personal property referred to herein and real property,
including lawn, shrubbery and pool, if any, shall be
maintained or caused to be maintained, by Seller in the
condition they existed as of Effective Date, ordinary wear
and tear excepted, and Buyer or Buyer's designated agent
will be permitted access for inspection prior to closing to
confirm compliance with this Paragraph.
22. Proceeds of Sale and Closing Procedures. The deeds shall
be recorded upon clearance of funds and evidence of title
continued at the respective Buyer's expense, to show title
in Buyer, without any encumbrances or change which would
render Seller's title unmarketable from the date of the
last evidence, and the cash proceeds of sale shall be held
in escrow by Seller's attorney or by such other escrow
agent as may be mutually agreed upon for a period of not
longer than five (5) days from and after closing date. If
a Seller's title is rendered unmarketable, Buyer shall
within said five (5) day period, notify Seller in writing
of the defect and Seller shall have thirty (30) days from
date of receipt of such notification to cure said defect.
In the event Seller fails to timely cure said defect, all
monies paid hereunder shall, upon written demand therefor
and within five (5) days thereafter, be returned to Buyer
and simultaneously with such repayment, Buyer shall vacate
the property and reconvey same to the Seller by special
warranty deed. In the event Buyer fails to make timely
demand for refund, he shall take title as is, waiving all
rights against Seller as to such intervening defect except
as may be available to Buyer by virtue of warranties, if
any, contained in the deed. In the event a portion of the
purchase price is to be derived from institutional
financing or refinancing, the requirements of the lending
institution as to place, time of day and procedures for
closing, and for disbursement of mortgage proceeds, shall
control, anything in this Agreement to the contrary
notwithstanding; provided, however, that the Seller shall
have the right to require from such lending institution at
closing a commitment that it will not withhold disbursement
of mortgage proceeds as a result of any title defect
attributable to Buyer-mortgagor. The escrow and closing
procedure required by this Paragraph may be waived in the
event the attorney, title agent or closing agent insures
against adverse matters pursuant to applicable laws of this
state.
23. Escrow. Any escrow agent receiving funds is authorized and
agrees by acceptance thereof to promptly deposit and to
hold same in escrow and to disburse same subject to
clearance thereof in accordance with terms and conditions
of this Agreement. Failure of clearance of funds shall not
excuse performance by Buyer. In the event of doubts as to
his duties or liabilities under the provisions of this
Agreement, the escrow agent may in his sole discretion,
continue to hold the monies which are the subject of this
escrow until the parties mutually agree to the disbursement
thereof, or until a judgment of a court of competent
jurisdiction shall determine the rights of the parties
thereto, or he may deposit all the monies then held
pursuant to this Agreement with the Clerk of the Court of
the County having jurisdiction of the dispute, and upon
notifying all parties concerned of such action, all
liability on the part of the escrow agent shall fully
terminate, except to the extent of an accounting for any
monies theretofore delivered out of escrow. In the event
of any suit between the parties wherein the escrow agent is
made a party by virtue of acting as such escrow agent
hereunder, or in the event of any suit wherein escrow agent
interpleads the subject matter of this escrow, the escrow
agent shall be entitled to recover a reasonable attorney's
fee and costs incurred, said fees and costs to be charged
and assessed as court costs in favor of the prevailing
party. All parties agree that the escrow agent shall not
be liable to any party or person whomsoever for misdelivery
to a party of monies subject to this escrow, unless such
misdelivery shall be due to willful breach of this
Agreement or negligence on the part of the escrow agent.
24. Attorney Fees and Costs. All matters pertaining to this
Agreement (including its interpretation, application,
validity, performance and breach), shall be governed by,
construed and enforced in accordance with the laws of the
State of _____________. The parties herein waive trial by
jury and agree to submit to the personal jurisdiction and
venue of a court of subject matter jurisdiction located in
___________ County, State of ___________. In the event that
litigation results from or arises out of this Agreement or
the performance thereof, the parties agree to reimburse the
prevailing party's reasonable attorney's fees, court costs,
and all other expenses, whether or not taxable by the court
as costs, in addition to any other relief to which the
prevailing party may be entitled. In such event, no action
shall be entertained by said court or any court of
competent jurisdiction if filed more than one year
subsequent to the date the cause(s) of action actually
accrued regardless of whether damages were otherwise as of
said time calculable.
25. Contingencies and Default. This Agreement is contingent
upon Second Party conveying, or causing to be conveyed, to
First Party, the property described in paragraph 2 herein
above. If Second Party is unable to convey said title, or
cause same to be conveyed, for reasons beyond his control,
according to the terms of this Agreement, the parties shall
only be responsible for paying their respective costs
incurred to date, including, but not limited to, title
examination fees and attorney's fees, and thereupon this
Agreement shall be terminated, it being expressly
understood that First Party shall not be obligated to sell
the property described in paragraph l herein above to
Second Party for cash or other terms not provided for in
this Agreement.
If either party fails to perform this Agreement within
the time specified, for any reason, other than the failure
of a Seller to render his title marketable, after diligent
effort, the defaulting party shall reimburse the
non-defaulting party for all costs and expenses incurred,
including a reasonable attorney's fee, and thereupon this
Agreement shall be terminated, and neither party shall have
any further rights against the other.
26. Contract Not Recordable, Persons Bound and Notice. This
Agreement shall not be recorded in any public records.
This Agreement shall bind and inure to the benefit of the
parties hereto and their successors in interest. Whenever
the context permits, singular shall include plural and one
gender shall include all. The word "party" shall be
construed as if it read "parties" whenever the sense of
this Agreement so requires. Whenever the word "seller" is
used it shall mean the party who has contracted to sell the
parcel owned by or arranged to be conveyed by him, and the
words "purchaser" and "buyer" shall mean the party who has
agreed to purchase said parcel. Notice given by or to the
attorney for either party shall be as effective as if given
by or to said party.
27. Prorations and Insurance. Taxes, assessments, rent,
interest, insurance and other expenses and revenues of the
property shall be prorated as of date of closing. The
respective Buyers shall have the option of taking over any
existing policies of insurance on the property, if
assumable, in which event premiums shall be prorated. The
cash at closing shall be increased or decreased as may be
required by said prorations. All references in this
Agreement to prorations as of date of closing will be
deemed "date of occupancy" if occupancy occurs prior to
closing, unless otherwise provided for herein.
28. Conveyance. The respective Sellers shall convey title to
the property by statutory warranty deed subject only to
matters set out herein and those otherwise accepted by
Buyer. Personal property shall, if requested, be conveyed
by an absolute bill of sale with warranty of title, subject
to such liens as may be otherwise provided for herein.
29. Other Agreements. No prior agreements or representations
shall be binding upon any of the parties hereto unless
incorporated in this Agreement. No modifications or
changes in this Agreement shall be valid or binding upon
the parties hereto unless in writing, executed by the
parties to be bound thereby.
30. Typewritten or Handwritten Provision. Typewritten or
handwritten provisions inserted herein or attached hereto
as Addenda shall control all provisions in conflict
therewith.
31. Special Clauses. See "Addendum l" attached hereto.
Executed by First Party on ________
______________________________ ______________________________
Witness
______________________________ ______________________________
Witness
Executed by Second Party on _______
______________________________ ______________________________
Witness
______________________________ ______________________________
Witness
ADDENDUM l
Special Clauses
EXHIBIT "A"
Personal Property to be Conveyed
With Property located at
EXHIBIT "B"
Personal Property to be Conveyed
With Property located at
THIS AGREEMENT is made and entered into this _______ day of
__________, 19 ___, by and between ____________________________,
(hereinafter referred to as "First Party"), whose address is
________________________________________________________________,
and ____________________________________, (hereinafter referred
to as "Second Party"), whose address is
.
l. Transfer by First Party. First Party, in consideration of
One Dollar paid, the receipt of which is hereby
acknowledged, and the agreement of Second Party to arrange
to have the property described in paragraph 2 hereinafter
conveyed to First Party, hereby agrees to sell and convey
to Second Party, at a valuation, for the purposes of this
contract, of _____________________________ ($ _____________)
Dollars, the following described property:
together with the personal property described in Exhibit
"A", which is attached hereto and made a part hereof by
reference.
Street Address: ___________________________________________.
Said property shall be sold and conveyed subject to the
following:
a. That certain first mortgage, described as follows:
,
which has an unpaid principal balance of approximately
____________________________________ ($ ______________)
Dollars.
b. That certain second mortgage, described as follows:
,
which has an unpaid principal balance of approximately
____________________________________ ($ ______________)
Dollars.
c. That certain second mortgage, described as follows:
,
which has an unpaid principal balance of approximately
____________________________________ ($ ______________)
Dollars.
d. Covenants and restrictions of record, provided same
are not violated by the existing building and
improvements on such premises and the use thereof.
e. Other:
.
2. Transfer by Second Party. Second Party, in consideration
of One Dollar, the receipt of which is hereby acknowledged,
and of the conveyance by First Party, herein before agreed
to be made, hereby agrees to sell and convey to the First
Party, at a valuation, for the purpose sof this contract,
of _____________________________________ ($_______________)
Dollars, the following described property:
together with the personal property described in Exhibit
"B", which is attached hereto and made a part hereof by
reference.
Street Address: ___________________________________________.
Said property shall be sold and conveyed subject to the
following:
a. That certain first mortgage, described as follows:
,
which has an unpaid principal balance of approximately
____________________________________ ($ ______________)
Dollars.
b. That certain second mortgage, described as follows:
,
which has an unpaid principal balance of approximately
____________________________________ ($ ______________)
Dollars.
c. That certain second mortgage, described as follows:
,
which has an unpaid principal balance of approximately
____________________________________ ($ ______________)
Dollars.
d. Covenants and restrictions of record, provided same
are not violated by the existing building and
improvements on such premises and the use thereof.
e. Other:
.
3. Payment of Difference of Net Values. The difference
between the market values of the respective properties,
over and above encumbrances, for the purposes of this
contract, shall be deemed to be ____________________________
($ _________) Dollars, and that sum shall be due and
payable by __________ Party to ___________ Party as follows:
a. __________ Party shall execute, at the time of
closing, in favor of __________ Party, a promissory
note in the principal amount of _______________________
($ __________) Dollars, with interest thereon at the
rate of __________________ (_____%) percent, and being
due and payable as follows:
.
Said promissory note shall be secured by a purchase
money mortgage on the property, to be executed by
_____________ Party in favor of _______________ Party.
4. Financing.
a. New Financing. This Agreement is conditioned upon
_______________ Party obtaining a firm commitment for a
loan on the property to be obtained by him in this
transaction, within _______ days from the date of this
Agreement, at an interest rate not to exceed ________%,
with a term of __________ years, and in a principal
amount of not less than $ _______________. ___________
Party agrees to make application for and to use
reasonable diligence to obtain said loan. Should
______ Party fail to obtain same or to waive Buyer's
rights hereunder within said time, either party may
cancel this Agreement.
b. Existing Mortgages. Each party shall furnish, or
cause to be furnished, to the other party, a statement
from the mortgagee(s) on the property to be conveyed,
or caused to be conveyed, setting forth the principal
balance, method of payment, interest rate and whether
the mortgage is in good standing. If a mortgage
requires approval of the party who will be, at the
time of closing, assuming and agreeing to pay the
mortgage, and the mortgagee does not approve said
party, that party may rescind this Agreement; or if
the mortgagee requires an increase in the interest
rate or charges a fee for any reason in excess of
$_______________, that party may rescind this Agreement
unless the other party elects to pay such increase or
excess. The parties shall each pay 50% of any such
fee not in excess of $ _______________. Both parties
shall use reasonable diligence to obtain any required
approval. The amount of any escrow deposits held by
mortgagee shall be credited to the party assuming and
agreeing to pay that mortgage.
c. Purchase Money Mortgages. Any purchase money note and
mortgage, executed pursuant hereto, shall provide for
a thirty (30) day grace period in the event of default
if it is a first mortgage and a fifteen (15) day grace
period if a second or third mortgage, and the right of
prepayment in whole or in part without penalty; shall
not provide for acceleration or interest adjustment in
event of resale of the property; and shall be
otherwise in form and content as required by the
respective transferors and/or their attorneys;
provided, however, clauses customarily found in
mortgages and mortgage notes generally utilized by
private parties in the county wherein the property is
located may be inserted. Said mortgage shall require
the owner of the encumbered property to keep all
prior liens and encumbrances in good standing and
forbid the owner of the property from accepting
modifications of or future advances under prior
mortgages. All personal property being conveyed will,
at the option of the Seller, be subject to the lien of
the mortgage and evidenced by a recorded Financing
Statement.
5. Title Evidence. Within fifteen (15) days from the date of
this Agreement, or thirty (30) days from the date of
closing, whichever occurs first, each Seller shall, at his
expense, deliver, or cause to be delivered, to Buyer, or
his designated representative, (l) an abstract of title
prepared or brought current by a reputable and existing
abstract firm (if not existing then certified as correct by
an existing firm) purporting to be an accurate synopsis of
the instruments affecting title to the property recorded in
the public records of the county wherein the property is
located, through effective date and which shall commence
with the earliest public records, or such later date as may
be customary in the county. Each Seller shall convey a
marketable title, subject only to liens, encumbrances,
exceptions or qualifications set forth in this contract and
those which shall be discharged by seller at or before
closing. Marketable title shall be determined according
to applicable Title Standards adopted by authority of The
Bar Association for the State of ____________________ and
in accordance with the laws of the State of
____________________. Upon closing of this transaction the
abstract shall become the property of Buyer, subject to the
right of retention thereof by first mortgagee until fully
paid; or (2) a title insurance commitment, issued by a
licensed title insurer, with fee owner's title policy
premium to be paid by the respective Seller at closing,
agreeing to issue to Buyer, upon recording of the deed, an
Owner's policy of title insurance in the amount of the
purchase price, insuring the title of Buyer to the
property, subject only to liens, encumbrances, exceptions
or qualifications set forth in this Agreement and those
which shall be discharged by Seller, if any, at or before
closing.
The respective Buyers shall have thirty (30) days, if
abstract, or five (5) days, if title commitment, from date
of receiving the commitment for title insurance to examine
same. If title is found defective, Buyer shall, within
three (3) days thereafter, notify Seller in writing
specifying the defects. If said defects render title
unmarketable or uninsurable, Seller shall have one hundred
twenty (120) days from receipt of notice within which to
remove said defects, and if Seller is unsuccessful in
removing same within said time, Buyer shall have the option
of either accepting the title as it then is, or demanding a
refund of all monies paid hereunder which shall forthwith
be returned to Buyer and thereupon both parties shall be
released, as to one another, of all further obligations
under this Agreement; however, Seller agrees that he will,
if title is found to be unmarketable, use diligent efforts
to correct, or cause to be corrected, the defects in title
within the time provided therefor, including the bringing
of necessary suits.
Each party, as Seller, shall, both as to the property
and personalty being sold hereunder, furnish, or cause to
be furnished, to the other party at time of closing an
affidavit attesting to the absence, unless otherwise
provided for herein, of any financing statements, claims of
lien or potential lienors known and further attesting that
there have been no improvements to the property for ninety
(90) days immediately preceding date of closing. If a
property has been improved within said time, Seller shall
deliver releases or waivers of all mechanics' liens
executed by general contractors, subcontractors,
suppliers, and materialmen, in addition to Seller's lien
affidavit setting forth the names of all such general
contractors, subcontractors and materialmen and further
reciting that in fact all bills for work to the property
which could serve as a basis for a mechanic's lien have
been paid or will be paid at closing.
6. Effective Date. The date of this Agreement ("Effective
Date") shall be the date when the last one of the parties
has signed same.
7. Closing Date. The transactions contemplated by this
Agreement shall be closed at ____________________________,
______________, _______________, at ______ o'clock ___.m.,
on the ______ day of __________________, 19 _____, and the
deed and other closing papers delivered on that day, unless
extended by other provisions of this Agreement.
8. Restrictions, Easements, Limitations. The respective
Buyers shall take title subject to: zoning, restrictions,
reservations, prohibitions and other requirements imposed
by governmental authorities; covenants, restrictions and
matters appearing on the plat or otherwise common to the
subdivision; public utility easements of record, provided
said easements are located contiguous throughout the
property lines and are not more than 10 feet in width as to
the rear or front lines and 7 l/2 feet in width as to the
side lines, unless otherwise specified herein; taxes for
year of closing and subsequent years; assumed mortgages and
purchase money mortgages, if any; provided, however, that
none of the foregoing shall prevent use of the property for
which it is presently being used.
9. Occupancy and Leases. The respective Sellers warrant that
there are no other parties in occupancy; but if property is
intended to be rented or occupied beyond closing, the fact
and terms thereof shall be stated herein, the tenants shall
be disclosed and the Seller shall, not less than fifteen
(15) days prior to closing, furnish, or cause to be
furnished, to the Buyer, copies of all written leases and
estoppel letters from each tenant specifying the nature and
duration of said tenant's occupancy, rental rates and
advanced rent and security deposits paid by tenant. In the
event a party is unable to obtain such letter from each
tenant, the same information shall be furnished to Buyer
within said time period in the form of an affidavit, and
the respective Buyer may thereafter contact tenants to
confirm such information. Seller shall deliver and assign
all original leases to Buyer at closing. Seller agrees to
deliver occupancy of property at time of closing unless
otherwise specified below. If occupancy is to be delivered
prior to closing, Buyer assumes all risk of loss to
property from date of occupancy, shall be responsible and
liable for maintenance thereof from said date, and shall be
deemed to have accepted the property, real and personal, in
its existing condition as of time of taking occupancy
unless otherwise noted in writing.
10. Survey. The respective Buyers, within time allowed for
delivery of evidence of title and examination thereof, may
have the property he will acquire hereunder surveyed at his
expense. If the survey, certified by a property registered
surveyor, shows any encroachment of said property or that
improvements intended to be located on the property in fact
encroach on lands of others, or violate any of the
covenants of this Agreement, the same shall be treated as a
title defect.
11. Termites. The respective Buyers, within time allowed for
delivery of evidence of title and examination thereof, or
no later than ten (10) days prior to closing, whichever
date occurs last, may have the improvements he will acquire
hereunder inspected at his expense by a Certified Pest
Control Operator to determine whether there is any visible
active termite infestation or visible existing damage from
termite infestation in the improvements. If Buyer is
informed of either or both of the foregoing, he will have
seven (7) days from date of written notice thereof or four
(4) days after selection of a contractor, whichever occurs
first, within which to have all damage, whether visible or
not, inspected and estimated by a licensed building or
general contractor. The respective Seller shall pay, or
cause to be paid, valid costs of treatment and repair of
all damage up to one and one-half (l l/2%) percent of the
purchase price. Should such costs exceed that amount,
Seller shall have the option of cancelling this Agreement
within five (5) days after receipt of a contractor's repair
estimate by giving written notice to Seller, or Buyer may
elect to proceed with the transaction, in which event Buyer
shall receive a credit at closing of an amount equal to one
and one-half (l l/2%) percent of said purchase price.
"Termites" shall be deemed to include all wood destroying
organisms required to be reported under any applicable
state Pest Control Act in existence at the time of
execution of this Agreement.
12. Ingress and Egress. Each Seller warrants that there is
ingress and egress to the property sufficient for the
intended use as set out herein, the title to which is in
accordance with Paragraph 5 hereof.
13. Time of Essence. Time is of the essence of this Agreement.
Any reference herein to time periods of less than six (6)
days shall in the computation thereof exclude Saturdays,
Sundays and legal holidays, and any time period provided
for herein which shall end on a Saturday, Sunday or legal
holiday shall extend to 5:00 p.m. on the next full business
day.
14. Documents for closing. The respective Sellers shall
furnish, or cause to be furnished, the deed, mechanic's
lien affidavit, assignments of leases and any corrective
instruments that may be required in connection with
perfecting title to the property being sold. The
respective Buyers shall furnish, or cause to be furnished,
the closing statement, mortgage, mortgage note, security
agreement, and financing statements required in connection
with the property purchased.
15. Attorney's Fees. Each party shall be responsible for
paying his own attorney's fees incurred in connection with
this agreement and the transactions contemplated hereby,
unless otherwise agreed to in writing.
16. Expenses of Exchange. It is understood and agreed that
Second Party shall not incur any additional expenses or
costs because of the exchange transactions contemplated
herein, over and above those which he would normally incur
as a purchaser, and that First Party will pay, or reimburse
Second Party for, all expenses and costs incurred in
causing the property described in paragraph 2 herein above
to be conveyed to First Party.
17. Proration of Taxes (Real and Personal). All taxes shall be
prorated based on the current year's tax with due allowance
made for maximum allowable discount and homestead or other
exemptions, if allowed for said year. If closing occurs at
a date when the current year's millage is not fixed, and
current year's assessment is available, taxes will be
prorated based upon such assessment, and the prior year's
millage. If current year's assessment is not available,
then taxes will be prorated on the prior year's tax;
provided, however, if there are completed improvements on
the property by January 1st of the year of closing, which
improvements were not in existence on January 1st of the
prior year, then taxes shall be prorated based upon the
prior year's millage and at an equitable assessment to be
agreed upon between the parties, failing which, request
will be made to the County Property Appraiser for an
informal assessment taking into consideration homestead
exemption, if any. However, any tax proration based on an
estimate may upon request of either party to the
transaction be subsequently readjusted upon receipt of tax
bill on condition that a statement to that effect is set
forth in the closing statement.
18. Special Assessment Liens. Certified, confirmed and
ratified special assessment liens as of date of closing,
and not as of Effective Date, are to be paid by the
respective Seller. Pending liens as of date of closing
shall be assumed by Buyer; provided, however, that where
the improvement has been substantially completed as of the
Effective Date, such pending lien shall be considered as
certified, confirmed or ratified and Seller shall, at
closing, be charged an amount equal to the last estimate by
the public body, of the assessment for the improvement.
19. Personal Property Inspection and Repair. The respective
Sellers warrant that all major appliances, heating,
cooling, electrical, plumbing systems, and machinery are in
working condition as of closing date. Buyer may, at his
expense, have inspections made of said items by licensed
persons dealing in the repair and maintenance thereof, and
shall report in writing to Seller such items as found not
in working condition prior to taking possession thereof, or
as of the closing date, whichever is first. Unless Buyer
reports failures within said period, he shall be deemed to
have waived Seller's warranty as to failures not reported.
Valid reported failures shall be corrected at Seller's cost
with funds escrowed at closing. Seller agrees to provide
access for inspection upon reasonable notice.
20. Risk of Loss. If the improvements are damaged by fire or
other casualty prior to closing, and costs of restoring
same do not exceed 3% of the assessed valuation of the
improvements so damaged, cost of restoration shall be an
obligation of the Seller and closing shall proceed pursuant
to the terms of this Agreement with cost therefor escrowed
at closing. In the event the cost of repair or restoration
exceeds 3% of the assessed valuation of the improvements so
damaged, Buyer shall have the option of either taking the
property as is, together with either the said 3% or any
insurance proceeds payable by virtue of such loss or
damage, or of cancelling this Agreement and receiving
return of deposits made hereunder.
21. Maintenance. Between Effective Date and closing date,
personal property referred to herein and real property,
including lawn, shrubbery and pool, if any, shall be
maintained or caused to be maintained, by Seller in the
condition they existed as of Effective Date, ordinary wear
and tear excepted, and Buyer or Buyer's designated agent
will be permitted access for inspection prior to closing to
confirm compliance with this Paragraph.
22. Proceeds of Sale and Closing Procedures. The deeds shall
be recorded upon clearance of funds and evidence of title
continued at the respective Buyer's expense, to show title
in Buyer, without any encumbrances or change which would
render Seller's title unmarketable from the date of the
last evidence, and the cash proceeds of sale shall be held
in escrow by Seller's attorney or by such other escrow
agent as may be mutually agreed upon for a period of not
longer than five (5) days from and after closing date. If
a Seller's title is rendered unmarketable, Buyer shall
within said five (5) day period, notify Seller in writing
of the defect and Seller shall have thirty (30) days from
date of receipt of such notification to cure said defect.
In the event Seller fails to timely cure said defect, all
monies paid hereunder shall, upon written demand therefor
and within five (5) days thereafter, be returned to Buyer
and simultaneously with such repayment, Buyer shall vacate
the property and reconvey same to the Seller by special
warranty deed. In the event Buyer fails to make timely
demand for refund, he shall take title as is, waiving all
rights against Seller as to such intervening defect except
as may be available to Buyer by virtue of warranties, if
any, contained in the deed. In the event a portion of the
purchase price is to be derived from institutional
financing or refinancing, the requirements of the lending
institution as to place, time of day and procedures for
closing, and for disbursement of mortgage proceeds, shall
control, anything in this Agreement to the contrary
notwithstanding; provided, however, that the Seller shall
have the right to require from such lending institution at
closing a commitment that it will not withhold disbursement
of mortgage proceeds as a result of any title defect
attributable to Buyer-mortgagor. The escrow and closing
procedure required by this Paragraph may be waived in the
event the attorney, title agent or closing agent insures
against adverse matters pursuant to applicable laws of this
state.
23. Escrow. Any escrow agent receiving funds is authorized and
agrees by acceptance thereof to promptly deposit and to
hold same in escrow and to disburse same subject to
clearance thereof in accordance with terms and conditions
of this Agreement. Failure of clearance of funds shall not
excuse performance by Buyer. In the event of doubts as to
his duties or liabilities under the provisions of this
Agreement, the escrow agent may in his sole discretion,
continue to hold the monies which are the subject of this
escrow until the parties mutually agree to the disbursement
thereof, or until a judgment of a court of competent
jurisdiction shall determine the rights of the parties
thereto, or he may deposit all the monies then held
pursuant to this Agreement with the Clerk of the Court of
the County having jurisdiction of the dispute, and upon
notifying all parties concerned of such action, all
liability on the part of the escrow agent shall fully
terminate, except to the extent of an accounting for any
monies theretofore delivered out of escrow. In the event
of any suit between the parties wherein the escrow agent is
made a party by virtue of acting as such escrow agent
hereunder, or in the event of any suit wherein escrow agent
interpleads the subject matter of this escrow, the escrow
agent shall be entitled to recover a reasonable attorney's
fee and costs incurred, said fees and costs to be charged
and assessed as court costs in favor of the prevailing
party. All parties agree that the escrow agent shall not
be liable to any party or person whomsoever for misdelivery
to a party of monies subject to this escrow, unless such
misdelivery shall be due to willful breach of this
Agreement or negligence on the part of the escrow agent.
24. Attorney Fees and Costs. All matters pertaining to this
Agreement (including its interpretation, application,
validity, performance and breach), shall be governed by,
construed and enforced in accordance with the laws of the
State of _____________. The parties herein waive trial by
jury and agree to submit to the personal jurisdiction and
venue of a court of subject matter jurisdiction located in
___________ County, State of ___________. In the event that
litigation results from or arises out of this Agreement or
the performance thereof, the parties agree to reimburse the
prevailing party's reasonable attorney's fees, court costs,
and all other expenses, whether or not taxable by the court
as costs, in addition to any other relief to which the
prevailing party may be entitled. In such event, no action
shall be entertained by said court or any court of
competent jurisdiction if filed more than one year
subsequent to the date the cause(s) of action actually
accrued regardless of whether damages were otherwise as of
said time calculable.
25. Contingencies and Default. This Agreement is contingent
upon Second Party conveying, or causing to be conveyed, to
First Party, the property described in paragraph 2 herein
above. If Second Party is unable to convey said title, or
cause same to be conveyed, for reasons beyond his control,
according to the terms of this Agreement, the parties shall
only be responsible for paying their respective costs
incurred to date, including, but not limited to, title
examination fees and attorney's fees, and thereupon this
Agreement shall be terminated, it being expressly
understood that First Party shall not be obligated to sell
the property described in paragraph l herein above to
Second Party for cash or other terms not provided for in
this Agreement.
If either party fails to perform this Agreement within
the time specified, for any reason, other than the failure
of a Seller to render his title marketable, after diligent
effort, the defaulting party shall reimburse the
non-defaulting party for all costs and expenses incurred,
including a reasonable attorney's fee, and thereupon this
Agreement shall be terminated, and neither party shall have
any further rights against the other.
26. Contract Not Recordable, Persons Bound and Notice. This
Agreement shall not be recorded in any public records.
This Agreement shall bind and inure to the benefit of the
parties hereto and their successors in interest. Whenever
the context permits, singular shall include plural and one
gender shall include all. The word "party" shall be
construed as if it read "parties" whenever the sense of
this Agreement so requires. Whenever the word "seller" is
used it shall mean the party who has contracted to sell the
parcel owned by or arranged to be conveyed by him, and the
words "purchaser" and "buyer" shall mean the party who has
agreed to purchase said parcel. Notice given by or to the
attorney for either party shall be as effective as if given
by or to said party.
27. Prorations and Insurance. Taxes, assessments, rent,
interest, insurance and other expenses and revenues of the
property shall be prorated as of date of closing. The
respective Buyers shall have the option of taking over any
existing policies of insurance on the property, if
assumable, in which event premiums shall be prorated. The
cash at closing shall be increased or decreased as may be
required by said prorations. All references in this
Agreement to prorations as of date of closing will be
deemed "date of occupancy" if occupancy occurs prior to
closing, unless otherwise provided for herein.
28. Conveyance. The respective Sellers shall convey title to
the property by statutory warranty deed subject only to
matters set out herein and those otherwise accepted by
Buyer. Personal property shall, if requested, be conveyed
by an absolute bill of sale with warranty of title, subject
to such liens as may be otherwise provided for herein.
29. Other Agreements. No prior agreements or representations
shall be binding upon any of the parties hereto unless
incorporated in this Agreement. No modifications or
changes in this Agreement shall be valid or binding upon
the parties hereto unless in writing, executed by the
parties to be bound thereby.
30. Typewritten or Handwritten Provision. Typewritten or
handwritten provisions inserted herein or attached hereto
as Addenda shall control all provisions in conflict
therewith.
31. Special Clauses. See "Addendum l" attached hereto.
Executed by First Party on ________
______________________________ ______________________________
Witness
______________________________ ______________________________
Witness
Executed by Second Party on _______
______________________________ ______________________________
Witness
______________________________ ______________________________
Witness
ADDENDUM l
Special Clauses
EXHIBIT "A"
Personal Property to be Conveyed
With Property located at
EXHIBIT "B"
Personal Property to be Conveyed
With Property located at
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