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Report CopyRight/DMCA Form For : 4009 Sale Of Real Estate By Tender Fourth Edition 2012
Fourth Edition 2012,CONDITIONS OF SALE, 1 1 The property and the chattels included in the sale are sold on these Particulars and Conditions of Sale the General Terms of. Sale and any Further Terms of Sale, 1 2 GST will be payable in accordance with the statement of the purchase price in the Memorandum of Contract. 1 3 The GST date is,1 4 The Land Act date is,1 5 The settlement date is. 1 6 The interest rate for late settlement is p a,CONDUCT OF TENDER. 2 1 A tender must be submitted in this form in duplicate in a sealed envelope marked Tender address of property and must be. received at the Delivery Address for Tenders by the Closing Date and Time time being of the essence. 2 2 A tender offer must state the purchase price as an exact dollar amount without reference to any calculation or variation or to the. purchase price contained in any other tender, 2 3 A tender must be accompanied by payment of the deposit equivalent to 10 of the purchase price. 2 4 A tender must be executed as follows, 1 Where it is signed by an agent there must be attached an authority signed by the principal. In the case of a partnership it must be signed by all partners or if all partners have not signed by a duly authorised. partner whose signature must follow the name of the partnership followed by the word Partner. In the case of a company it must be signed by an officer of the company authorised to sign and there must be attached. evidence of that authority, Where it is signed by an attorney there must be attached a copy of the power of attorney together with a declaration or. certificate of non revocation, A tender will not be opened before the Closing Date and Time. All tenders including the identity of the tenderer will be kept confidential and will not be divulged to any other tenderer or third. party save that statistical data relating to successful tenders may be provided to the Real Estate Institute of New Zealand. Incorporated, 2 7 The offer contained in each tender cannot be withdrawn until after the Tender Acceptance Date being the fifth working day after. the Closing Date and Time, 2 8 A tender is deemed to be accepted on signing by the vendor of the Acceptance of Tender Acceptance will be communicated to. the successful tenderer and or the tenderer s lawyer as soon as reasonably practicable. 2 9 The vendor may, 1 sell the property in such manner as the vendor sees fit at any time whether before or after the opening of tenders. 2 reject any tender even if it is the highest, 3 negotiate with any tenderer to the exclusion of any others after the opening of tenders. 4 re advertise for tenders, 5 ignore any irregularities in the tender process and. 6 at any time before the Closing Date and Time extend the Closing Date and Time by a maximum of twenty working days in. which case each of the dates mentioned in clauses 1 3 to 1 5 of the Conditions of Sale shall be deemed to have been. extended by an equivalent period, 2 10 A deposit lodged by an unsuccessful tenderer will be returned to the tenderer no later than two working days after the Tender. Acceptance Date No interest shall be payable on any deposit. 2 11 The tenderer must complete its GST information in Schedule 1 before submitting a tender. Fourth Edition 2012,GENERAL TERMS OF SALE, 3 0 Definitions time for performance notices and interpretation. 3 1 Definitions, 1 Unless the context requires a different interpretation words and phrases not otherwise defined have the same meanings ascribed to those words and. phrases in the Goods and Services Tax Act 1985 the Property Law Act 2007 the Resource Management Act 1991 or the Unit Titles Act 2010. 2 Agreement means this document including the Particulars and Conditions of Sale these General Terms of Sale any Further Terms of Sale the. Memorandum of Contract and any schedules and attachments. 3 Building Act means the Building Act 1991 and or the Building Act 2004. 4 Building warrant of fitness means a building warrant of fitness supplied to a territorial authority under the Building Act. 5 Cleared funds means, a An electronic transfer of funds that has been made strictly in accordance with the requirements set out in the PLS Guidelines or. b A bank cheque but only in the circumstances permitted by the PLS Guidelines and only if it has been paid strictly in accordance with the. requirements set out in the PLS Guidelines, 6 Default GST means any additional GST penalty civil or otherwise interest or other sum imposed on the vendor or where the vendor is or was a. member of a GST group its representative member under the GST Act or the Tax Administration Act 1994 by reason of non payment of any GST. payable in respect of the supply made under this agreement but does not include any such sum levied against the vendor or where the vendor is or was. a member of a GST group its representative member by reason of a default or delay by the vendor after payment of the GST to the vendor by the. 7 Electronic instrument has the same meaning as ascribed to that term in the Land Transfer Computer Registers and Electronic Lodgement Amendment. 8 GST means Goods and Services Tax arising pursuant to the Goods and Services Tax Act 1985 and GST Act means the Goods and Services Tax Act. 9 Landonline Workspace means an electronic workspace facility approved by the Registrar General of Land pursuant to the provisions of the Land. Transfer Computer Registers and Electronic Lodgement Amendment Act 2002. 10 LINZ means Land Information New Zealand, 11 Local authority means a territorial authority or a regional council. 12 OIA Consent means consent to purchase the property under the Overseas Investment Act 2005. 13 PLS Guidelines means the most recent edition as at the date of this agreement of the Property Transactions and E Dealing Practice Guidelines. prepared by the Property Law Section of the New Zealand Law Society. 14 Property means the property described in this agreement. chattels included in the sale, 15 Purchase price means the total purchase price stated in this agreement which the purchaser has agreed to pay the vendor for the property and the. 16 Regional council means a regional council within the meaning of the Local Government Act 2002. 17 Remote settlement means settlement of the sale and purchase of the property by way of the purchaser s lawyer paying the moneys due and payable on. the settlement date directly into the trust account of the vendor s lawyer in consideration of the vendor agreeing to meet the vendor s obligations under. subclause 5 8 2 pursuant to the protocol for remote settlement recommended in the PLS Guidelines. 18 Secure web document exchange means an electronic messaging service enabling messages and electronic documents to be posted by one party to a. secure website to be viewed by the other party immediately after posting. 19 Settlement date means the date specified as such in this agreement. 20 Settlement statement means a statement showing the purchase price plus any GST payable by the purchaser in addition to the purchase price less. any deposit or other payments or allowances to be credited to the purchaser together with apportionments of all incomings and outgoings apportioned at. the settlement date, 21 Territorial authority means a territorial authority within the meaning of the Local Government Act 2002. 22 Unit title means a unit title under the Unit Titles Act 2010. 23 The terms principal unit accessory unit unit plan and unit have the meanings ascribed to those terms in the Unit Titles Act 2010. 24 The term rules includes both body corporate rules under the Unit Titles Act 1972 and body corporate operational rules under the Unit Titles Act 2010. 25 The terms building building consent code compliance certificate compliance schedule household unit and residential property developer have. the meanings ascribed to those terms in the Building Act. 26 The term title includes where appropriate a computer register within the meaning of the Land Transfer Computer Registers and Electronic Lodgement. Amendment Act 2002, 27 The terms going concern goods principal place of residence recipient registered person registration number supply and taxable activity. have the meanings ascribed to those terms in the GST Act. 28 Working day means any day of the week other than. a Saturday Sunday Waitangi Day Good Friday Easter Monday Anzac Day the Sovereign s Birthday and Labour Day and. b a day in the period commencing on the 24th day of December in any year and ending on the 5th day of January in the following year both days. inclusive and, c the day observed as the anniversary of any province in which the property is situated. A working day shall be deemed to commence at 9 00 am and to terminate at 5 00 pm. 29 Unless a contrary intention appears in the Conditions of Sale or elsewhere in this agreement. a the interest rate for late settlement is equivalent to the interest rate charged by the Inland Revenue Department on unpaid tax under the Tax. Administration Act 1994 during the period for which the interest rate for late settlement is payable plus 5 per cent per annum. b a party is in default if it did not do what it has contracted to do to enable settlement to occur regardless of the cause of such failure. 3 2 Time for Performance, 1 Where the day nominated for settlement or the fulfilment of a condition is not a working day then the settlement date or the date for fulfilment of the. condition shall be the last working day before the day so nominated. 2 Any act done pursuant to this agreement by a party including service of notices after 5 00pm on a working day or on a day that is not a working day. shall be deemed to have been done at 9 00am on the next succeeding working day. 3 Where two or more acts done pursuant to this agreement including service of notices are deemed to have been done at the same time they shall take. effect in the order in which they would have taken effect but for subclause 3 2 2. 3 3 Notices, The following apply to all notices between the parties relevant to this agreement whether authorised by this agreement or by the general law. 1 All notices must be served in writing, 2 Any notice under section 28 of the Property Law Act 2007 where the purchaser is in possession of the property must be served in accordance with. section 353 of that Act, 3 All other notices unless otherwise required by the Property Law Act 2007 must be served by one of the following means. a on the party as authorised by sections 354 to 361 of the Property Law Act 2007 or. b on the party or on the party s lawyer,i by personal delivery or. ii by posting by ordinary mail or,iii by facsimile or by email or. iv in the case of the party s lawyer only by sending by document exchange or if both parties lawyers have agreed to subscribe to the same. secure web document exchange for this agreement by secure web document exchange. 4 In respect of the means of service specified in subclauses 3 3 3 b a notice is deemed to have been served. a in the case of personal delivery when received by the party or at the lawyer s office. b in the case of posting by ordinary mail on the second working day following the date of posting to the address for service notified in writing by the. party or to the postal address of the lawyer s office. c in the case of facsimile transmission when sent to the facsimile number notified in writing by the party or to the facsimile number of the lawyer s. Fourth Edition 2012, d in the case of email when acknowledged by the party or by the lawyer orally or by return email or otherwise in writing except that return emails. generated automatically shall not constitute an acknowledgement. e in the case of sending by document exchange on the second working day following the date of sending to the document exchange number of the. lawyer s office, f In the case of sending by secure web document exchange at the time when in the ordinary course of operation of that secure web document. exchange a notice posted by one party is accessible for viewing or downloading by the other party. 5 Any period of notice required to be given under this agreement shall be computed by excluding the day of service. 6 In accordance with section 20 1 of the Electronic Transactions Act 2002 the parties agree that any notice or document that must be given in writing by. one party to the other may be given in electronic form and by means of an electronic communication subject to the rules regarding service set out above. 3 4 Interpretation, 1 If there is more than one vendor or purchaser the liability of the vendors or of the purchasers as the case may be is joint and several. 2 Where the purchaser executes this agreement with provision for a nominee or as agent for an undisclosed or disclosed but unidentified principal or on. behalf of a company to be formed the purchaser shall at all times remain liable for all obligations on the part of the purchaser. 3 If any inserted term including any Further Terms of Sale conflicts with the General Terms of Sale or the Particulars and Conditions of Sale the inserted. term shall prevail, 4 Headings are for information only and do not form part of this agreement. 5 References to statutory provisions shall be construed as references to those provisions as they may be amended or re enacted or as their application is. modified by other provisions from time to time,4 0 Deposit. 4 1 The purchaser shall pay the deposit with the submission of the tender. 4 2 If the deposit is not paid with the submission of the tender or if the payment is dishonoured the vendor may cancel this agreement by serving notice of. cancellation on the purchaser, 4 3 The deposit shall be in part payment of the purchase price. 4 4 If this agreement is entered into subject to any condition s expressed in this agreement and or if the property is a unit title the person to whom the deposit is. paid shall hold it as a stakeholder until, 1 each such condition has been fulfilled or waived and. 2 if the property is a unit title a pre settlement disclosure statement certified correct by the body corporate under section 147 of the Unit Titles Act 2010. and an additional disclosure statement under section 148 of the Unit Titles Act 2010 if requested by the purchaser within the time prescribed in section. 148 2 have been provided to the purchaser by the vendor within the times prescribed in those sections or otherwise the purchaser has given notice. under section 148 2 of the Unit Titles Act 2010 to postpone the settlement date until after the disclosure statements have been provided or. 3 this agreement is avoided pursuant to subclause 11 4 5 or if the property is a unit title the purchaser having the right to cancel this agreement. Possession, pursuant to section 151 2 of the Unit Titles Act 2010 has cancelled this agreement pursuant to that section or has waived the right to cancel by giving. notice to the vendor or by completing settlement of the purchase. 5 0 Possession and Settlement, 5 1 Unless particulars of a tenancy are included in this agreement the property is sold with vacant possession and the vendor shall so yield the property on the. settlement date, 5 2 If the property is sold with vacant possession then subject to the rights of any tenants of the property the vendor shall permit the purchaser or any person. authorised by the purchaser in writing upon reasonable notice. to enter the property on one occasion prior to the settlement date for the purposes of examining the property chattels and fixtures which are included in. the sale and, to re enter the property on or before the settlement date to confirm compliance by the vendor with any agreement made by the vendor to carry out any. work on the property and the chattels and fixtures. 5 3 Possession shall be given and taken on the settlement date Outgoings and incomings in respect of the settlement date are the responsibility of and belong to. the vendor, 5 4 On the settlement date the vendor shall make available to the purchaser keys to all exterior doors electronic door openers relating to the property and the keys. and or security codes to any alarms which may be situated on the property The vendor does not have to make available keys electronic door openers and. security codes where the property is tenanted and these are held by the tenant. Settlement, 5 5 The vendor shall prepare at the vendor s own expense a settlement statement The vendor shall tender the settlement statement to the purchaser or the. purchaser s lawyer a reasonable time prior to the settlement date. 5 6 The purchaser s lawyer shall, 1 within a reasonable time prior to the settlement date create a Landonline Workspace for the transaction notify the vendor s lawyer of the dealing number. allocated by LINZ and prepare in that workspace a transfer instrument in respect of the property and. 2 prior to settlement certify and sign the transfer instrument. 5 7 The vendor lawyer shall, 1 within a reasonable time prior to the settlement date prepare in that workspace all other electronic instruments required to confer title on the purchaser in. terms of the vendor s obligations under this agreement and. 2 prior to settlement have those instruments and the transfer instrument certified signed and pre validated. 5 8 On the settlement date, 1 The balance of the purchase price interest and other moneys if any shall be paid by the purchaser in cleared funds or otherwise satisfied as provided in. this agreement credit being given for any amount payable by the vendor under subclause 5 12 or 5 13. 2 The vendor s lawyer shall immediately thereafter. a release or procure the release of the transfer instrument and the other instruments mentioned in subclause 5 7 1 so that the purchaser s lawyer can. then submit them as soon as possible for registration. b pay to the purchaser s lawyer the LINZ registration fees on all of the instruments mentioned in subclause 5 7 1 unless these fees will be invoiced to. the vendor s lawyer by LINZ directly and, c deliver to the purchaser s lawyer any other documents that the vendor must provide to the purchaser on settlement in terms of this agreement. 5 9 All obligations under subclause 5 8 are interdependent. 5 10 The parties shall complete settlement by way of remote settlement provided that where payment by bank cheque is permitted under the PLS Guidelines. payment may be made by the personal delivery of a bank cheque to the vendor s lawyer s office so long as it is accompanied by the undertaking from the. purchaser s lawyer required by those Guidelines,Last Minute Settlement. 5 11 If due to the delay of the purchaser settlement takes place between 4 00 pm and 5 00 pm on the settlement date last minute settlement the purchaser shall. pay the vendor, 1 one day s interest at the interest rate for late settlement on the portion of the purchase price paid in the last minute settlement and. 2 if the day following the last minute settlement is not a working day an additional day s interest calculated in the same manner for each day until but. excluding the next working day,Purchaser Default Late Settlement. 5 12 If any portion of the purchase price is not paid upon the due date for payment then provided that the vendor provides reasonable evidence of the vendor s. ability to perform any obligation the vendor is obliged to perform on that date in consideration for such payment. 1 The purchaser shall pay to the vendor interest at the interest rate for late settlement on the portion of the purchase price so unpaid for the period from the. due date for payment until payment the default period but nevertheless this stipulation is without prejudice to any of the vendor s rights or remedies. including any right to claim for additional expenses and damages For the purposes of this subclause a payment made on a day other than a working. day or after the termination of a working day shall be deemed to be made on the next following working day and interest shall be computed accordingly. 2 The vendor is not obliged to give the purchaser possession of the property or to pay the purchaser any amount for remaining in possession unless this. agreement relates to a tenanted property in which case the vendor must elect either to. a account to the purchaser on settlement for incomings in respect of the property which are payable and received during the default period in which. event the purchaser shall be responsible for the outgoings relating to the property during the default period or. Fourth Edition 2012, b retain such incomings in lieu of receiving interest from the purchaser pursuant to subclause 5 12 1. Vendor Default Late Settlement or Failure to give Possession. 5 13 1 For the purposes of this subclause 5 13,a the default period means. i in subclause 5 13 2 the period from the settlement date until the date when the vendor is able and willing to provide vacant possession and the. purchaser takes possession and, ii in subclause 5 13 3 the period from the date the purchaser takes possession until the date when settlement occurs and. iii in subclause 5 13 5 the period from the settlement date until the date when settlement occurs. b the vendor shall be deemed to be unwilling to give possession if the vendor does not offer to give possession. 2 If this agreement provides for vacant possession but the vendor is unable or unwilling to give vacant possession on the settlement date then provided. that the purchaser provides reasonable evidence of the purchaser s ability to perform the purchaser s obligations under this agreement. a the vendor shall pay the purchaser at the purchaser s election either. i compensation for any reasonable costs incurred for temporary accommodation for persons and storage of chattels during the default period or. ii an amount equivalent to interest at the interest rate for late settlement on the entire purchase price during the default period and. b the purchaser shall pay the vendor an amount equivalent to the interest earned or which would be earned on overnight deposits lodged in the. purchaser s lawyer s trust bank account on such portion of the purchase price including any deposit as is payable under this agreement on or by. the settlement date but remains unpaid during the default period less. i any withholding tax and, ii any bank or legal administration fees and commission charges and. iii any interest payable by the purchaser to the purchaser s lender during the default period in respect of any mortgage or loan taken out by the. purchaser in relation to the purchase of the property. 3 If this agreement provides for vacant possession and the vendor is able and willing to give vacant possession on the settlement date then provided the. purchaser provides reasonable evidence of the purchaser s ability to perform the purchaser s obligations under this agreement the purchaser may elect. to take possession in which case the vendor shall not be liable to pay any interest or other moneys to the purchaser but the purchaser shall pay the. vendor the same amount as that specified in subclause 5 13 2 b during the default period A purchaser in possession under this subclause 5 13 3 is a. licensee only, 4 Notwithstanding the provisions of subclause 5 13 3 the purchaser may elect not to take possession when the purchaser is entitled to take it If the. purchaser elects not to take possession the provisions of subclause 5 13 2 shall apply as though the vendor were unable or unwilling to give vacant. possession on the settlement date, 5 If this agreement provides for the property to be sold tenanted then provided that the purchaser provides reasonable evidence of the purchaser s ability. to perform the purchaser s obligations under this agreement the vendor shall on settlement account to the purchaser for incomings which are payable. and received in respect of the property during the default period less the outgoings paid by the vendor during that period Apart from accounting for such. incomings the vendor shall not be liable to pay any other moneys to the purchaser but the purchaser shall pay the vendor the same amount as that. specified in subclause 5 13 2 b during the default period. The provisions of this subclause 5 13 shall be without prejudice to any of the purchaser s rights or remedies including any right to claim for any additional. expenses and damages suffered by the purchaser, Where the parties are unable to agree upon any amount payable under this subclause 5 13. a An interim amount shall on settlement be paid to a stakeholder by the party against whom it is claimed until the amount payable is determined. b The interim amount shall be the lower of,i the amount claimed or. ii an amount equivalent to interest at the interest rate for late settlement for the relevant default period on such portion of the purchase price. including any deposit as is payable under this agreement on or by the settlement date. c Any interest earned on the interim amount net of any withholding tax and any bank or legal administration fees and commission charges shall follow. the destination of the interim amount, d The amount determined to be payable shall not be limited by the interim amount. e If the parties cannot agree on a stakeholder the interim amount shall be paid to a stakeholder nominated on the application of either party by the. president for the time being of the New Zealand Law Society. Deferment of Settlement and Possession, 1 this is an agreement for the sale by a residential property developer of a household unit and. 2 a code compliance certificate has not been issued by the settlement date in relation to the household unit. then unless the parties agree otherwise in which case the parties shall enter into a written agreement in the form prescribed by the Building Forms. Regulations 2004 the settlement date shall be deferred to the fifth working day following the date upon which the vendor has given the purchaser notice that the. code compliance certificate has been issued which notice must be accompanied by a copy of the certificate. 5 15 In every case if neither party is ready willing and able to settle on the settlement date the settlement date shall be deferred to the third working day following. the date upon which one of the parties gives notice it has become ready willing and able to settle. New Title Provision,1 the property is a unit title. 2 the settlement date is deferred pursuant to either subclause 5 14 or subclause 5 15 and. 3 the vendor considers on reasonable grounds that an extension of time is necessary or desirable in order for the vendor to comply with the warranty by the. vendor in subclause 10 2 2,then the vendor may extend the settlement date. 4 where there is a deferment of the settlement date pursuant to subclause 5 14 to the tenth working day following the date upon which the vendor gives. the purchaser notice that it has become ready willing and able to settle provided the vendor gives notice of the extension to the purchaser no later than. the second working day after such notice or, 5 where there is a deferment of the settlement date pursuant to subclause 5 15 to the tenth working day following the date upon which one of the parties. gives notice that it has become ready willing and able to settle provided the vendor gives notice of the extension to the purchaser no later than the. second working day after such notice,5 17 1 Where, a the transfer of the property is to be registered against a new title yet to be issued and. b a search copy as defined in section 172A of the Land Transfer Act 1952 of that title is not obtainable by the tenth working day prior to the. settlement date, then unless the purchaser elects that settlement shall still take place on the agreed settlement date the settlement date shall be deferred to the tenth working. day following the date on which the vendor has given the purchaser notice that a search copy is obtainable. 2 Subclause 5 17 1 shall not apply where it is necessary to register the transfer of the property to enable a plan to deposit and title to the property to issue. 6 0 Risk and insurance, 6 1 The property and chattels shall remain at the risk of the vendor until possession is given and taken. 6 2 If prior to the giving and taking of possession the property is destroyed or damaged and such destruction or damage has not been made good by the. settlement date then the following provisions shall apply. 1 If the destruction or damage has been sufficient to render the property untenantable and it is untenantable on the settlement date the purchaser may. a complete the purchase at the purchase price less a sum equal to any insurance moneys received or receivable by or on behalf of the vendor in. respect of such destruction or damage provided that no reduction shall be made to the purchase price if the vendor s insurance company has. agreed to reinstate for the benefit of the purchaser to the extent of the vendor s insurance cover or. b cancel this agreement by serving notice on the vendor in which case the vendor shall return to the purchaser immediately the deposit and any other. moneys paid by the purchaser and neither party shall have any right or claim against the other arising from this agreement or its cancellation. 2 If the property is not untenantable on the settlement date the purchaser shall complete the purchase at the purchase price less a sum equal to the. amount of the diminution in value of the property which to the extent that the destruction or damage to the property can be made good shall be deemed. to be equivalent to the reasonable cost of reinstatement or repair. Fourth Edition 2012, 3 In the case of a property zoned for rural purposes under an operative District Plan damage to the property shall be deemed to have rendered the. property untenantable where the diminution in value exceeds an amount equal to 20 of the purchase price. 4 If the amount of the diminution in value is disputed the parties shall follow the same procedure as that set out in subclause 9 4 for when an amount of. compensation is disputed, 6 3 The purchaser shall not be required to take over any insurance policies held by the vendor. 7 0 Title boundaries and requisitions, 7 1 The vendor shall not be bound to point out the boundaries of the property except that on the sale of a vacant residential lot which is not limited as to parcels the. vendor shall ensure that all boundary markers required by the Cadastral Survey Act 2002 and any related rules and regulations to identify the boundaries of the. property are present in their correct positions at the settlement date. 7 2 The purchaser is deemed to have accepted the vendor s title to the property and the purchaser may not make any requisitions or objections as to the title. 7 3 Except as provided by section 7 of the Contractual Remedies Act 1979 no error omission or misdescription of the property or the title shall enable the. purchaser to cancel this agreement but compensation if claimed by notice before settlement in accordance with subclause 9 1 but not otherwise shall be made. or given as the case may require, 7 4 The vendor shall not be liable to pay for or contribute towards the expense of erection or maintenance of any fence between the property and any contiguous. land of the vendor but this proviso shall not enure for the benefit of any subsequent purchaser of the contiguous land and the vendor shall be entitled to require. the inclusion of a fencing covenant to this effect in any transfer of the property. 8 0 Vendor s warranties and undertakings, 8 1 The vendor warrants and undertakes that at the date of release of the tender documentation the vendor has not. 1 received any notice or demand and has no knowledge of any requisition or outstanding requirement. a from any local or government authority or other statutory body or. b under the Resource Management Act 1991 or,c from any tenant of the property or. d from any other party or,2 given any consent or waiver. which directly or indirectly affects the property and which has not been disclosed in writing to the purchaser. 8 2 The vendor warrants and undertakes that at settlement. 1 The chattels are delivered to the purchaser in reasonable working order where applicable but in all other respects in their state of repair as at the date of. this agreement fair wear and tear excepted but failure so to deliver the chattels shall only create a right of compensation. 2 All electrical and other installations on the property are free of any charge whatsoever. 3 There are no arrears of rates water rates or charges outstanding on the property. Where an allowance has been made by the vendor in the settlement statement for incomings receivable the settlement statement correctly records those. allowances including in particular the dates up to which the allowances have been made. Where the vendor has done or caused or permitted to be done on the property any works. a any permit resource consent or building consent required by law was obtained. b to the vendor s knowledge the works were completed in compliance with those permits or consents. c where appropriate a code compliance certificate was issued for those works. Where under the Building Act any building on the property sold requires a compliance schedule. a the vendor has fully complied with any requirements specified in any compliance schedule issued by a territorial authority under the Building Act in. respect of the building, b the building has a current building warrant of fitness and. c the vendor is not aware of any reason that the vendor has not disclosed in writing to the purchaser which would prevent a building warrant of fitness. from being supplied to the territorial authority when the building warrant of fitness is next due. Since the date of this agreement the vendor has not given any consent or waiver which directly or indirectly affects the property. Any notice or demand received by the vendor which directly or indirectly affects the property after the date of this agreement. a from any local or government authority or other statutory body or. b under the Resource Management Act 1991 or,c from any tenant of the property or. d from any other party, has been delivered forthwith by the vendor to either the purchaser or the purchaser s lawyer unless the vendor has paid or complied with such notice or. demand If the vendor fails to so deliver or pay the notice or demand the vendor shall be liable for any penalty incurred. 9 Any chattels included in the sale are the unencumbered property of the vendor. 8 3 If the property is or includes part only of a building the warranty and undertaking in subclause 6 2 6 does not apply Instead the vendor warrants and. undertakes at the date of this agreement that where under the Building Act the building of which the property forms part requires a compliance schedule. 1 To the vendor s knowledge there has been full compliance with any requirements specified in any compliance schedule issued by a territorial authority. under the Building Act in respect of the building, 2 The building has a current building warrant of fitness and. 3 The vendor is not aware of any reason that the vendor has not disclosed in writing to the purchaser which would prevent a building warrant of fitness. from being supplied to the territorial authority when the building warrant of fitness is next due. 8 4 The vendor warrants and undertakes that on or immediately after settlement. 1 If the water and wastewater charges are determined by meter the vendor will have the water meter read and will pay the amount of the charge payable. pursuant to that reading but if the water supplier will not make special readings the water and wastewater charges shall be apportioned. 2 Any outgoings included in the settlement statement are paid in accordance with the settlement statement and where applicable to the dates shown in. the settlement statement or will be so paid immediately after settlement. 3 The vendor will give notice of sale in accordance with the Local Government Rating Act 2002 to the territorial authority and regional council in whose. district the land is situated and will also give notice of the sale to every other authority that makes and levies rates or charges on the land and to the. supplier of water, 4 Where the property is a unit title the vendor will notify the body corporate in writing of the transfer of the property and the name and address of the. 8 5 If the purchaser has not validly cancelled this agreement the breach of any warranty or undertaking contained in this agreement does not defer the obligation to. settle but that obligation shall be subject to the rights of the purchaser at law or in equity including any rights under subclause 7 3 and any right of equitable set. 9 0 Claims for compensation, 9 1 If the purchaser claims a right to compensation either under subclause 7 3 or for an equitable set off. 1 The purchaser must serve notice of the claim on the vendor before settlement and. 2 The notice must, a in the case of a claim for compensation under subclause 7 3 state the particular error omission or misdescription of the property or title in respect of. which compensation is claimed, b in the case of a claim to an equitable set off state the particular matters in respect of which compensation is claimed. c comprise a genuine pre estimate of the loss suffered by the purchaser and. d be particularised and quantified to the extent reasonably possible as at the date of the notice. 9 2 For the purposes of subclause 9 1 1 settlement means the date for settlement fixed by this agreement unless by reason of the conduct or omission of the. vendor the purchaser is unable to give notice by that date in which case notice may be given by the date for settlement fixed by a valid settlement notice. served by either party pursuant to subclause 12 1, 9 3 If the amount of compensation is agreed it shall be deducted on settlement. 9 4 If the amount of compensation is disputed, 1 An interim amount shall be deducted on settlement and paid by the purchaser to a stakeholder until the amount of the compensation is determined. 2 The interim amount must be a reasonable sum having regard to all of the circumstances. Fourth Edition 2012, 3 If the parties cannot agree on the interim amount the interim amount shall be determined by an experienced property lawyer appointed by the parties. The appointee s costs shall be met equally by the parties If the parties cannot agree on the appointee the appointment shall be made on the application. of either party by the president for the time being of the New Zealand Law Society. 4 The stakeholder shall lodge the interim amount on interest bearing call deposit with a bank registered under the Reserve Bank of New Zealand Act 1989. in the joint names of the vendor and the purchaser. 5 The interest earned on the interim amount net of any withholding tax and any bank or legal administration fees and commission charges shall follow the. destination of the interim amount, 6 The amount of compensation determined to be payable shall not be limited by the interim amount. 7 If the parties cannot agree on a stakeholder the interim amount shall be paid to a stakeholder nominated on the application of either party by the. president for the time being of the New Zealand Law Society. 9 5 The procedures prescribed in subclauses 9 1 to 9 4 shall not prevent either party taking proceedings for the specific performance of the contract. 10 0 Unit title provisions,Unit Titles, 10 1 If the property is a unit title sections 144 to 153 of the Unit Titles Act 2010 the Act require the vendor to provide to the purchaser a pre contract disclosure. statement a pre settlement disclosure statement and if so requested by the purchaser an additional disclosure statement. 10 2 If the property is a unit title the vendor warrants and undertakes as follows. 1 Apart from regular periodic contributions no contributions have been levied or proposed by the body corporate that have not been disclosed in writing to. the purchaser, 2 Not less than five working days before the settlement date the vendor will provide. a a certificate of insurance for all insurances effected by the body corporate under the provisions of section 135 of the Act and. b a pre settlement disclosure statement from the vendor certified correct by the body corporate under section 147 of the Act Any periodic. contributions to the operating account shown in that pre settlement disclosure statement shall be apportioned There shall be no apportionment of. contributions to any long term maintenance fund contingency fund or capital improvement fund. 3 There are no other amounts owing by the owner under any provisions of the Act or the Unit Titles Act 1972. 4 There are no unsatisfied judgments against the body corporate and no proceedings have been instituted against or by the body corporate. 5 No order or declaration has been made by any Court against the body corporate or the owner under any provision of the Act or the Unit Titles Act 1972. 6 The vendor has no knowledge or notice of any fact which might give rise to or indicate the possibility of. a the owner or the purchaser incurring any other liability under any provision of the Act or the Unit Titles Act 1972 or. b any proceedings being instituted by or against the body corporate or. c any order or declaration being sought against the body corporate or the owner under any provision of the Act or the Unit Titles Act 1972. 7 The vendor is not aware of proposals to pass any body corporate resolution relating to its rules nor are there any unregistered changes to the body. corporate rules which have not been disclosed in writing to the purchaser. No lease licence easement or special privilege has been granted by the body corporate in respect of any part of the common property which has not. been disclosed in writing to the purchaser, No resolution has been passed and no application has been made and the vendor has no knowledge of any proposal for. a the transfer of the whole or any part of the common property. b the addition of any land to the common property,c the cancellation of the unit plan or. d the deposit of an amendment to the unit plan a redevelopment plan or a new unit plan in substitution for the existing unit plan. which has not been disclosed in writing to the purchaser. 10 As at settlement all contributions and other moneys payable by the vendor to the body corporate have been paid in full. 10 3 If the property is a unit title in addition to the purchaser s rights under sections 149 and 150 of the Act if the vendor does not provide the certificates of. insurance and the pre settlement disclosure statement under section 147 in accordance with the requirements of subclause 10 2 2 the purchaser may. postpone the settlement date until the fifth working day following the date on which that information is provided to the purchaser or. elect that settlement shall still take place on the settlement date. 10 4 If the property is a unit title specify that, 1 The facsimile number of the office of that party s lawyer shall be an address for service for that party for the purposes of section 205 1 d of the Act and. 2 If that party is absent from New Zealand that party s lawyer shall be that party s agent in New Zealand for the purposes of section 205 2 of the Act. 10 5 If the property is a unit title any costs owing by the purchaser to the vendor pursuant to section 148 5 of the Act for providing an additional disclosure statement. shall be included in the moneys payable by the purchaser on settlement pursuant to subclause 5 8 1 Such costs may be deducted from the deposit if the. purchaser becomes entitled to a refund of the deposit upon cancellation or avoidance of this agreement. 11 0 Conditions,Particular conditions, 11 1 If this agreement relates to a transaction to which the Land Act 1948 applies this agreement is subject to the vendor obtaining the necessary consent by the. Land Act date, 11 2 If the Land Act date is not shown in the Conditions of Sale that date shall be the possession date or a date two months from the date of this agreement. whichever is the sooner, 11 3 If this agreement relates to a transaction to which section 225 of the Resource Management Act 1991 applies then this agreement is subject to the appropriate. condition s imposed by that section,Operation of conditions. 11 4 If this agreement is expressed to be subject either to the above or to any other condition s then in relation to each such condition the following shall apply. unless otherwise expressly provided,1 The condition shall be a condition subsequent. 2 The party or parties for whose benefit the condition has been included shall do all things which may reasonably be necessary to enable the condition to. be fulfilled by the date for fulfilment, 3 Time for fulfilment of any condition and any extended time for fulfilment to a fixed date shall be of the essence. 4 The condition shall be deemed to be not fulfilled until notice of fulfilment has been served by one party on the other party. 5 If the condition is not fulfilled by the date for fulfilment either party may at any time before the condition is fulfilled or waived avoid this agreement by. giving notice to the other Upon avoidance of this agreement the purchaser shall be entitled to the immediate return of the deposit and any other moneys. paid by the purchaser under this agreement and neither party shall have any right or claim against the other arising from this agreement or its. termination, 6 At any time before this agreement is avoided the purchaser may waive any finance condition and either party may waive any condition which is for the. sole benefit of that party Any waiver must be by notice. 12 0 Notice to complete and remedies on default, 12 1 1 If the sale is not settled on the settlement date either party may at any time thereafter serve on the other party a settlement notice but. 2 The settlement notice shall be effective only if the party serving it is at the time of service either in all material respects ready able and willing to proceed. to settle in accordance with this agreement or is not so ready able and willing to settle only by reason of the default or omission of the other party. 3 If the purchaser is in possession the vendor s right to cancel this agreement will be subject to sections 28 to 36 of the Property Law Act 2007 and the. settlement notice may incorporate or be given with a notice under section 28 of that Act complying with section 29 of that Act. 12 2 Subject to subclause 12 1 3 upon service of the settlement notice the party on whom the notice is served shall settle. 1 on or before the twelfth working day after the date of service of the notice or. 2 on the first working day after the 13th day of January if the period of twelve working days expires during the period commencing on the 6th day of January. and ending on the 13th day of January both days inclusive. time being of the essence but without prejudice to any intermediate right of cancellation by either party. 12 3 1 If this agreement provides for the payment of the purchase price by instalments and the purchaser fails duly and punctually to pay any instalment on or. within one month from the date on which it fell due for payment then whether or not the purchaser is in possession the vendor may immediately give. notice to the purchaser calling up the unpaid balance of the purchase price which shall upon service of the notice fall immediately due and payable. Fourth Edition 2012, 2 The date of service of the notice under this subclause shall be deemed the settlement date for the purposes of subclause 12 1. 3 The vendor may give a settlement notice with a notice under this subclause. 4 For the purpose of this subclause a deposit is not an instalment. 12 4 If the purchaser does not comply with the terms of the settlement notice served by the vendor then subject to subclause 12 1 3. 1 Without prejudice to any other rights or remedies available to the vendor at law or in equity the vendor may. a sue the purchaser for specific performance or, b cancel this agreement by notice and pursue either or both of the following remedies namely. i forfeit and retain for the vendor s own benefit the deposit paid by the purchaser but not exceeding in all 10 of the purchase price and or. ii sue the purchaser for damages, 2 Where the vendor is entitled to cancel this agreement the entry by the vendor into a conditional or unconditional agreement for the resale of the property. or any part thereof shall take effect as a cancellation of this agreement by the vendor if this agreement has not previously been cancelled and such resale. shall be deemed to have occurred after cancellation. 3 The damages claimable by the vendor under subclause 12 4 1 b ii shall include all damages claimable at common law or in equity and shall also. include but shall not be limited to any loss incurred by the vendor on any bona fide resale contracted within one year from the date by which the. purchaser should have settled in compliance with the settlement notice The amount of that loss may include. a interest on the unpaid portion of the purchase price at the interest rate for late settlement from the settlement date to the settlement of such resale. b all costs and expenses reasonably incurred in any resale or attempted resale and. c all outgoings other than interest on or maintenance expenses in respect of the property from the settlement date to the settlement of such resale. 4 Any surplus money arising from a resale as aforesaid shall be retained by the vendor. 12 5 If the vendor does not comply with the terms of a settlement notice served by the purchaser then without prejudice to any other rights or remedies available to. the purchaser at law or in equity the purchaser may. 1 sue the vendor for specific performance or, 2 cancel this agreement by notice and require the vendor forthwith to repay to the purchaser any deposit and any other money paid on account of the. purchase price and interest on such sum s at the interest rate for late settlement from the date or dates of payment by the purchaser until repayment. 12 6 The party serving a settlement notice may extend the term of the notice for one or more specifically stated periods of time and thereupon the term of the. settlement notice shall be deemed to expire on the last day of the extended period or periods and it shall operate as though this clause stipulated the extended. period s of notice in lieu of the period otherwise applicable and time shall be of the essence accordingly An extension may be given either before or after the. expiry of the period of the notice, 12 7 Nothing in this clause shall preclude a party from suing for specific performance without giving a settlement notice. 12 8 A party who serves a settlement notice under this clause shall not be in breach of an essential term by reason only of that party s failure to be ready and able to. settle upon the expiry of that notice,13 0 Non merger. 14 0 Agent, 13 1 The obligations and warranties of the parties in this agreement shall not merge with. 1 the giving and taking of possession,settlement,the transfer of title to the property. delivery of the chattels if any or, registration of the transfer of title to the property. 14 1 If the name of a licensed real estate agent is recorded on this agreement it is acknowledged that the sale evidenced by this agreement has been made through. that agent whom the vendor appoints as the vendor s agent to effect the sale The vendor shall pay the agent s charges including GST for effecting such sale. 15 0 Goods and Services Tax, 15 1 If this agreement provides for the purchaser to pay in addition to the purchase price stated without GST any GST which is payable in respect of the supply. made under this agreement then, 1 The purchaser shall pay to the vendor the GST which is so payable in one sum on the GST date. 2 Where the GST date has not been inserted in the Conditions of Sale the GST date shall be the settlement date. 3 Where any GST is not so paid to the vendor the purchaser shall pay to the vendor. a interest at the interest rate for late settlement on the amount of GST unpaid from the GST date until payment and. b any default GST, 4 It shall not be a defence to a claim against the purchaser for payment to the vendor of any default GST that the vendor has failed to mitigate the vendor s. damages by paying an amount of GST when it fell due under the GST Act. 5 Any sum referred to in this clause is included in the moneys payable by the purchaser on settlement pursuant to subclause 5 8 1. 15 2 If the supply under this agreement is a taxable supply the vendor will deliver a tax invoice to the purchaser on or before the GST date or such earlier date as the. purchaser is entitled to delivery of an invoice under the GST Act. 15 3 The vendor warrants that any dwelling and curtilage or part thereof supplied on sale of the property are not a supply to which section 5 16 of the GST Act. 15 4 1 Without prejudice to the vendor s rights and remedies under subclause 15 1 where any GST is not paid to the vendor on or within one month of the GST. date then whether or not the purchaser is in possession the vendor may immediately give notice to the purchaser calling up any unpaid balance of the. purchase price which shall upon service of the notice fall immediately due and payable. 2 The date of service of the notice under this subclause shall be deemed the settlement date for the purposes of subclause 12 1. 3 The vendor may give a settlement notice under subclause 12 1 with a notice under this subclause. 16 0 Zero rating, 16 1 The parties warrant that the particulars stated in Schedule 1 are correct at the date of this agreement. 16 2 Where the particulars stated in Schedule 1 indicate that at settlement. 1 The vendor is a registered person or will be a registered person. 2 The recipient is a registered person or will be a registered person. 3 The recipient intends to use the goods supplied under this agreement for making taxable supplies and. 4 The recipient does not intend to use the property as a principal place of residence by the recipient or a person associated with the recipient under section. 2A 1 c of the GST Act, GST will be chargeable on the supply under this agreement at zero per cent pursuant to section 11 1 mb of the GST Act. 16 3 If GST is chargeable on the supply under this agreement at zero per cent pursuant to section 11 1 mb of the GST Act then on or before settlement the. purchaser will provide the vendor with the recipient s name address and registration number if any of those details are not included in Schedule 1 or they have. 16 4 If any of the particulars stated by the purchaser in Schedule 1 should alter between the date of this agreement and settlement the purchaser shall notify the. vendor of the altered particulars as soon as practicable and in any event no later than two working days before settlement The purchaser warrants that any. altered particulars will be correct as at the date of the purchaser s notification If the GST treatment of the supply under this agreement should be altered as a. result of the altered particulars the vendor shall prepare and deliver to the purchaser or the purchaser s lawyer an amended settlement statement if the vendor. has already tendered a settlement statement and a credit note or a debit note as the case may be if the vendor has already issued a tax invoice. 17 0 Supply of a Going Concern, 17 1 If there is a supply under this agreement to which section 11 1 mb of the GST Act does not apply but which comprises the supply of a taxable activity that is a. going concern at the time of the supply then unless otherwise expressly stated herein. 1 Each party warrants that it is a registered person or will be so by the date of the supply. 2 Each party agrees to provide the other party by the date of the supply with proof of its registration for GST purposes. 3 The parties agree that they intend that the supply is of a taxable activity that is capable of being carried on as a going concern by the purchaser and. 4 The parties agree that the supply made pursuant to this agreement is the supply of a going concern on which GST is chargeable at zero per cent. Fourth Edition 2012, 17 2 If it subsequently transpires that GST is payable in respect of the supply and if this agreement provides for the purchaser to pay in addition to the purchase. price without GST any GST which is payable in respect of the supply made under this agreement then the provisions of clause 15 0 of this agreement shall. 18 0 Limitation of Liability, 18 1 If any person enters into this agreement as trustee of a trust then. 1 That person warrants that, a that person has power to enter into this agreement under the terms of the trust. b that person has properly signed this agreement in accordance with the terms of the trust. c that person has the right to be indemnified from the assets of the trust and that right has not been lost or impaired by any action of that person. including entry into this agreement and, d all of the persons who are trustees of the trust have approved entry into this agreement. 2 If that person has no right to or interest in any assets of the trust except in that person s capacity as a trustee of the trust that person s liability under this. agreement will not be personal and unlimited but will be limited to the actual amount recoverable from the assets of the trust from time to time the. limited amount If the right of that person to be indemnified from the trust assets has been lost or impaired that person s liability will become personal. but limited to the extent of that part of the limited amount which cannot be recovered from any other person. 19 0 OIA Consent Not Required, 19 1 The purchaser warrants that the purchaser does not require OIA consent. 20 0 Counterparts, 20 1 This agreement may be executed in two or more counterparts all of which will together be deemed to constitute one and the same agreement A party may. enter into this agreement by signing a counterpart copy and sending it to the other party including by facsimile or email. Fourth Edition 2012,FURTHER TERMS OF SALE,Fourth Edition 2012. Schedule 1,GST Information see clause 16 0, 1 The vendor is registered under the GST Act or will be so registered at settlement Yes No. 2 The vendor s registration number if already registered. 3 The purchaser is registered under the GST Act or will be so registered at settlement Yes No. 4 The purchaser s details are as follows,a Full name. c Registration number if already registered, 5 The purchaser intends at settlement to use the goods supplied under this agreement for making Yes No. taxable supplies, 6 The purchaser intends at settlement to use the property as a principal place of residence by the Yes No. purchaser or a person associated with the purchaser under section 2A 1 c of the GST Act. The purchaser intends to direct the vendor to transfer title to the property to another party nominee. If the answer to question 7 is Yes then please continue Otherwise there is no need to complete this Schedule any. The nominee is registered under the GST Act or is expected by the purchaser to be so registered at. settlement, The nominee s details if known to the purchaser are as follows. a Full name,c Registration number if already registered. 10 The purchaser expects the nominee to intend at settlement to use the goods supplied under this Yes No. agreement for making taxable supplies, 11 The purchaser expects the nominee to intend at settlement to use the property as a principal place of Yes No. residence by the nominee or a person associated with the nominee under section 2A 1 c of the GST. Fourth Edition 2012,MEMORANDUM OF CONTRACT, WARNING This warning does not form part of this agreement. This is a binding contract Read the information set out on the back page before signing. Acknowledgements, Where this agreement relates to the sale of a residential property and this agreement was provided to the parties by a. licensed real estate agent or by a licensee on behalf of the agent the parties acknowledge that they have been given the. guide about the sale of residential property approved by the Real Estate Agents Authority. OFFER BY TENDERER TO PURCHASE,PURCHASER S NAME and or nominee the purchaser. offers by tender to purchase the property and the chattels included in the sale on the Particulars and Conditions of. Sale General Terms of Sale and Further Terms of Sale if any set out above for a purchase price of. Plus GST if any OR Inclusive of GST if any,Purchase price. PL If neither is deleted the purchase price includes GST if any. The tender offer must state the purchase price as an exact dollar amount and without reference to any calculation or. variation or to the purchase price stated in any other tender. Signature of purchaser s,ACCEPTANCE OF TENDER, The vendor accepts the offer by tender of the purchaser. Signature of vendor s,Fourth Edition 2012, BEFORE SIGNING A TENDER PARTICULARS AND CONDITIONS OF. SALE OF REAL ESTATE BY TENDER, It is recommended you seek professional advice before This form is copyright to the Real Estate Institute of New Zealand Incorporated. signing and lodging this tender This is especially so if and Auckland District Law Society Incorporated. there are any doubts On acceptance this will be a Address of Property. binding contract with only restricted rights of,termination. property such as a hotel or a farm is being sold The Closing Date Time. agreement is designed primarily for the sale of, residential and commercial property Delivery Address for Tenders. the property is vacant land in the process of being. subdivided or there is a new unit title or cross lease. to be issued In these cases additional clauses may. need to be inserted,there is any doubt as to the position of the. boundaries,you wish to check the weathertightness and. Contact Details, soundness of construction of any dwellings or other. buildings on the land, You should investigate the status of the property under the. local Council s District Plan The property and those around. it may be affected by zoning and other planning provisions. regulating their use and future development VENDOR S LAWYERS. You should investigate whether necessary permits,no right of objection or requisition. consents and code compliance certificates have been. obtained from the Council where building works have been. carried out This investigation can be assisted by obtaining. a Land Information Memorandum LIM from the Council. You should check the title to the property because there is. You should compare the title plans against the physical. location of existing structures where the property is a unit. title or cross lease Structures or alterations to structures. not shown on the plans may result in the title being. In the case of a unit title before you enter into the. Individual Acting,Contact Details, the vendor must provide you with a pre contract Contact Details. disclosure statement under section 146 of the Unit. Titles Act 2010, you should check the minutes of the past meetings of. the body corporate enquire whether there are any, issues affecting the units and or the common PURCHASER S LAWYERS. property check the body corporate s long term, maintenance plan and enquire whether the body Firm. corporate has imposed or proposed levies for a long. term maintenance fund or any other fund for the Individual Acting. maintenance of or remedial or other work to the,common property Contact Details. Both parties should ensure that chattels list on the front. page is accurate, You should ensure that you understand the GST position. and whether or not GST is payable in addition to the price. you are offering, Both parties should seek professional advice regarding the. GST treatment of the transaction This depends upon the LICENSED REAL ESTATE AGENT. GST information supplied by the parties and could change. before settlement if that information changes Agent s Name. You should read the Conduct of Tender in clause 2,THE ABOVE NOTES ARE NOT PART OF THIS AGREEMENT. AND ARE NOT A COMPLETE LIST OF MATTERS WHICH Salesperson. ARE IMPORTANT IN CONSIDERING THE LEGAL,CONSEQUENCES OF THIS AGREEMENT Contact Details. PROFESSIONAL ADVICE SHOULD BE SOUGHT,REGARDING THE EFFECT AND CONSEQUENCES OF ANY. AGREEMENT ENTERED INTO BETWEEN THE PARTIES,YOU SHOULD KEEP A COPY OF THIS FORM WHEN.
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