HEARTWOOD SINGLE FAMILY RESIDENTIAL UNIMPROVED LOT PURCHASE AGREEMENT

Transcription

1 HEARTWOOD SINGLE FAMILY RESIDENTIAL UNIMPROVED LOT PURCHASE AGREEMENT THIS AGREEMENT, made and entered into as of the Effective Date by and between Heartwood Development, LLC a Florida limited liability company, whose mailing address is 3545 U.S. Highway 1 South, St. Augustine, Florida, ( Seller ), and whose mailing address is ( Buyer ). Buyer s home phone number is and Buyer s work phone is. Buyer s Social Security numbers are and. PRELIMINARY STATEMENT A. Seller is the Developer of Heartwood, a single-family residential subdivision being developed by Seller in St. Johns County, Florida. B. Buyer desires to purchase a lot in Heartwood. C. Seller agrees to sell and Buyer agrees to purchase, subject to the terms and conditions herein contained, Lot:, Heartwood (Street Address: ), together with all rights appurtenant thereto ( the Lot ). NOW, THEREFORE, in consideration of the foregoing and the covenants and promises set forth below, the parties agree as follows: 1. PURCHASE PRICE AND TERMS OF PAYMENT. The Purchase Price of the Lot shall be $, payable at Closing in U.S. Dollars. The Purchase Price shall be paid as follows: a. Deposit to be paid upon Buyer s execution of this Agreement: $ b. Additional deposit to be paid by Buyer on or before : $ c. Amount to be paid at Closing, together with Buyer s closing costs and the payments to the Association described in paragraph 7: $ 1

2 All payments shall be in the form of certified funds or wire transfer. The deposits described above shall be collectively referred to as the Deposit. The Deposit shall be held in a non-interest bearing escrow account by the Escrow Agent until Closing, at which time the amount of the Deposit shall be a credit against the Purchase Price. In the event any deposit is not received by Seller within five (5) days after it is due, Seller shall have the rights and remedies provided by paragraph 10, including without limitation the right to terminate this Agreement and retain all deposits previously paid, whereupon each party shall be released of all liability and obligations under this Agreement 2. ESCROW AGENT AND SELLER S CLOSING AGENT. The Seller has retained Upchurch, Bailey and Upchurch, P.A. ( the Escrow Agent ), whose address is 780 N. Ponce de Leon Boulevard, St. Augustine, Florida 32084, to act as the Escrow Agent and Seller s Closing Agent. All Deposit checks shall be made payable to the Escrow Agent and shall be held in a non-interest bearing account. Escrow Agent undertakes and agrees to perform only such duties as expressly set forth herein. The duty of the Escrow Agent hereunder shall be limited to the safekeeping of the Deposit in a non-interest bearing account and the disposition of same in accordance with the provisions of this Agreement. The Escrow Agent shall have the right, but not the obligation, to require written instruments signed by all parties to this Agreement or a court order confirming satisfaction of all conditions precedent to disbursements of funds hereunder and authorizing disbursement of said funds. Each party acknowledges that Escrow Agent has entered into this Agreement at the parties specific request and, in order to induce Escrow Agent to accept said escrow, each does hereby agree to indemnify and hold Escrow Agent harmless from any loss, cost and expense, including reasonable attorneys fees and court costs, which it may suffer or incur as a result of acting as Escrow Agent under this Agreement except for such losses which Escrow Agent may incur as a result of its gross negligence or willful disregard for the terms of this Agreement. In the event of any dispute as to the disbursement of the Deposit or any claim thereto by any party or persons, Escrow Agent shall have the right to bring a suit in interpleader in the appropriate court for St. Johns County, Florida, naming the parties to this Contract and any other parties as may be appropriate in the opinion of Escrow Agent. Seller and Buyer shall indemnify and hold Escrow Agent harmless from all costs, including attorneys' fees, in connection with such interpleader action. Upon filing of said suit and placing of the balance of the Deposit in the registry of the court, Escrow Agent shall have the right to withdraw from said suit and all obligations of Escrow Agent shall cease and terminate. Buyer acknowledges Escrow Agent represents the Seller and that in the event of a dispute under this Agreement, Escrow Agent may continue to represent Seller in resolving any such dispute. 2

3 3. FINANCING. (Check one): a. [ ] This transaction is contingent upon the Buyer obtaining approval of a loan within fifteen (20) days after the Effective Date in the principal amount equal to 90 % of the sum of the Purchase Price of the Lot, at an initial interest rate not to exceed %, discount and origination fees not to exceed % of the principal amount, and for a term of years. The Buyer will apply for a mortgage within 5 days of acceptance of this Agreement and will supply Seller with proof of loan approval within 15 days of acceptance of this agreement, failing which this agreement shall null and void and the Buyer s Deposit shall be returned in full without interest or penalty. b. [ ] This is an all cash transaction and this agreement is not contingent upon Buyer obtaining financing. If the Buyer requires a mortgage loan to finance this transaction or any portion thereof, the responsibility for arranging the loan is assumed by Buyer. 4. CLOSING. Closing on the purchase shall take place at the office of the Escrow Agent on or before. 5. CONVEYANCE OF TITLE. At the Closing, Seller shall execute and deliver to Buyer a Special Warranty Deed ("Deed") conveying fee simple marketable record title to the Lot to Buyer, free and clear of all liens, special assessments, easements, reservations, restrictions and encumbrances whatsoever, excepting only the following ( the Permitted Exceptions ): a. Taxes for the year of Closing, which will be prorated in accordance with paragraph 7. b. The Declaration of Covenants and Restrictions for Heartwood ( the Declaration ); c. Comprehensive land use plans, zoning restrictions, and other requirements imposed by governmental authority; restrictions and matters appearing on the Plat of Heartwood; and d. Any matter set forth in the title Commitment or shown on the Survey to which Buyer has not objected or to which Buyer has waived its objection; and e. The usual exceptions contained in the A.L.T.A. approved form of owner s policy of title insurance. 3

4 6. TITLE INSURANCE AND SURVEY. a. Buyer, at Buyer s expense, may obtain a current, certified survey of the Lot( Survey ), with a certification date no earlier than the Effective Date, and deliver a copy to Seller within 30 days after the Effective Date. The survey will be prepared by a qualified, registered Florida land surveyor, certified to Buyer, Seller, Seller's attorney and the title company insuring Buyer s title to the Lot that it was prepared in accordance with the minimum technical requirements and standards promulgated by the Florida Board of Professional Land Surveyors. The Survey will also contain such other matters as are required by the title company and shall subsequently updated, at Buyer s expense, to within ninety (90) days of Closing. b. Within 30 days from the Effective Date, at Seller s expense, Seller shall deliver to Buyer a current title insurance commitment for the Lot(the Title Commitment) issued by a title insurer licensed to do business in Florida (the Title Company ) agreeing to insure the title to the Lot subject to the Permitted Exceptions. If the Buyer elects to obtain Buyer s own title commitment it shall be at Buyer s expense. c. Within ten (10) days after the receipt of the Title Commitment and Survey, Buyer shall provide Seller with notice of any matters set forth in the Title Commitment or Survey which are unacceptable to Buyer ( Title Defects ). d. Within five (5) days after receipt of notice from Buyer, Seller shall notify Buyer whether Seller will attempt to cure such Title Defects. In the event Seller fails to notify Buyer of its intent to cure the Title Defects within said five (5) day period, Seller shall be deemed to have refused to cure the Title Defects. If Seller elects to attempt to cure such Title Defects, Seller shall have sixty (60) days in which to use its best efforts to cure such Title Defects to the satisfaction of the Title Company; provided, however, Seller shall not be obligated to bring suit or expend funds to cure any Title Defects. In the event Seller refuses or fails to cure any Title Defect, then Buyer, at its option, by providing Seller with written notice within five (5) days after the expiration of the sixty-day cure period, may (i) terminate this Agreement and receive a refund of the Deposit, whereupon the Agreement shall be deemed null and void and of no force and effect and no party hereto shall have any further rights, obligations or liability hereunder; or (ii) accept title to the Lot subject to such Title Defect. If Buyer fails to provide notice of its election within such five-day period, Buyer shall be deemed to have accepted the Lot subject to the Title Defects. 7. EXPENSES OF CLOSING. a. Prorating of Taxes and Assessments. All real property ad valorem taxes applicable to the Lot shall be prorated between Buyer and Seller as of the Closing Date. 4

5 b. Assessments. At Closing Buyer agrees to pay a capital contribution to the Heartwood Homeowners Association, Inc. ( the HOA ) in the amount of Two Hundred and No/100s Dollars ($200). All HOA assessments assessed against the Lot shall be prorated between the Buyer and Seller at the Closing, provided that Seller shall not be obligated to pay Association dues for Lots it owns as provided by the Declaration. c. Seller s Closing Costs. Seller shall pay for the owner s title insurance policy issued by the Title Company; documentary stamps on the deed; Seller s attorneys fees; satisfaction of any mortgages on the Lot; and the cost for recording any curative title documents. d. Buyer s Closing Costs. Buyer shall pay all other closing costs, including without limitation the cost of recording the deed; the survey, if applicable; all costs associated with Buyer s financing of the purchase of the Lot; the cost of a title insurance policy obtained by Buyer; and Buyer s attorneys fees. 8. REPRESENTATIONS AND WARRANTIES. To induce Seller to enter into this Agreement, Buyer hereby makes the following representations and warranties: a. Buyer has the full right, power and authority to enter into and deliver this Agreement and to consummate the purchase of the Lot in accordance herewith and to perform all covenants and agreements of Buyer hereunder. b. The execution and delivery of this Agreement and the consummation of the transaction contemplated herein shall not and do not constitute a violation or breach by Buyer of any provision of any agreement or other instrument to which Buyer is a party, nor result in or constitute a violation or breach of any judgment, order, writ, injunction or decree issued against Buyer. c. At all times prior to Closing, Buyer and all of its respective Affiliates (defined below): (i) shall not be a Prohibited Person (defined below); and (ii) shall be in full compliance with all applicable orders, rules, regulations and recommendations promulgated under or in connection with Executive Order No Blocking Property and Prohibiting Transactions with Person Who Commit, Threaten to Commit, or Support Terrorism, effective September 24, 2001 ( Executive Order ) and the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 ( Patriot Act ). The term Prohibited Person shall mean any person or entity: 1.) listed in the Annex to, or otherwise subject to the provisions of, the Executive Order; 5

6 2.) that is owned or controlled by, or acting for or on behalf of, any person or entity that is listed in the Annex to, or is other wise subject to the provisions of, the Executive Order; 3.) with whom Seller is prohibited from dealing or otherwise engaging in any transaction by an terrorism or money laundering law, including the Executive Order; 4.) who commits, threatens or conspires to commit or supports terrorism as defined in the Executive Order; 5.) that is named as a specially designated national and blocked person on the most current list published by the U.S. Department of the Treasury, Office of Foreign Assets Control, at its official website, or at any replacement website or other replacement official publication of such list; or 6.) who is an Affiliate of a person or entity listed above. The term Affiliate means, as to any person or entity, any other person or entity that, directly or indirectly, is in control of, is controlled by, or is under common control with such person or entity or is a director or officer of such person or entity or of an Affiliate of such person or entity. The covenants and agreements contained in this paragraph shall survive the Closing or termination of this Agreement. 9. HOMEOWNERS' ASSOCIATION. a. Buyer acknowledges receipt and approval of the Declaration and the Articles of Incorporation and Bylaws of the Heartwood Homeowners Association, Inc., ( the HOA Documents ), and understands and acknowledges that upon Closing Buyer shall become a member of the Association and shall accept all liabilities and obligations of membership. Prior to recording the HOA Documents in the public records, Seller may revise the HOA Documents in its sole discretion, and shall provide Buyer with all such revised documents. In the event any revisions are material and adverse to Buyer, Buyer shall have fifteen (15) days from the date of receipt of the revised documents in which to notify Seller of its election to terminate this Agreement and receive a refund of the Deposit, which shall be Buyer s sole and exclusive remedy. Buyer s right to terminate this Agreement pursuant to this paragraph shall terminate at Closing. b. Buyer hereby acknowledges that prior to the execution of this Agreement, Seller provided Buyer with the Homeowners Association Disclosure Summary as required by Section , Florida Statutes (2006). A copy of the summary is attached as an addendum to and by reference incorporated into and made a 6

7 part of this Agreement. Buyer further acknowledges that the assessments described in the summary is based on an estimated initial operating budget for the HOA, which was prepared in good faith and represents an approximation of future expenses based on facts and circumstances existing at the time of its preparation. Actual costs of such items may exceed the estimated costs. Such changes in cost do not constitute material adverse changes in the offering. The provisions of this paragraph shall survive the Closing. 10. DEFAULT. Buyer s Initials: / a. Buyer s failure, refusal, or neglect to perform its obligations hereunder shall constitute a default under this Agreement. If Buyer fails to cure such default within fifteen (15) days after written notice thereof from the Seller, the Seller, as and for its sole and exclusive remedy for such default, shall have the right to terminate this Agreement and to immediately receive disbursement of the Deposit from the Escrow Agent as agreed upon liquidated damages, and in settlement of all claims which Seller could have, by virtue of Buyer's default. Seller and Buyer acknowledge that Seller's damages in case of Buyer's default would be difficult to determine, and that the specified sum of liquidated damages is a reasonable estimate of the damages that would be suffered by Seller by virtue of Buyer's default. b. Seller s failure, refusal, or neglect to perform its obligations or representations hereunder shall constitute a default under this Agreement. If Seller fails to cure such default within fifteen (15) days of written notice thereof from the Buyer, or, if the default is of a nature that it cannot be cured within fifteen days, fails to take substantial steps to remedy the default within the fifteen-day period, Buyer shall be entitled as its sole remedy hereunder to terminate this Agreement by written notice delivered to Seller on or before the Closing and receive a refund of the Deposit, without waiving right to recover from Seller all actual out-of-pocket expenses incurred by Buyer with respect to this Agreement, not to exceed $1, The provisions of this paragraph shall survive the termination of this Agreement. 11. CONDEMNATION. If prior to Closing all or a material part of the Lot is subject to a proposed taking by any public authority Seller shall promptly notify Buyer of such proposed taking and Buyer may terminate this Agreement, by notice to Seller within fifteen (15) days after receiving written notice from Seller of such taking. If Buyer does not so terminate the Agreement, Buyer shall accept the Lot subject to the taking described in Seller's notice, without a reduction in the Purchase Price, and shall receive an assignment of all of Seller's rights to any condemnation award payable by reason of such taking. 7

8 12. COMMISSIONS. Buyer represents that it has not dealt with a broker or real estate salesperson with regard to this transaction other than Crown Commercial and shall indemnify and hold harmless Seller from any and all liability, loss, damages or expenses that Seller may incur arising out of a claim by any other broker, salesperson, or other person or entity claiming a commission by, through, or under Buyer. 13. NOTICES. Any notices which may be permitted or required hereunder shall be in writing and shall be deemed to have been duly given as of the date and time the same are actually received, whether same are personally delivered, transmitted electronically (i.e. facsimile device with verification receipt capability); sent by United States Postal Service, postage prepaid by registered or certified mail, return receipt requested; or sent by Federal Express or other overnight delivery service from which a receipt may be obtained evidencing the date and time delivery was made, and sent to the addresses or facsimile numbers set forth in this Agreement. Notice of a change of address shall be made in accordance with this paragraph. 14. GENERAL PROVISIONS. a. Time. Time is of the essence in the performance of each party's obligations hereunder. Any reference herein to periods of less than five (5) 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., of the next full business day. b. No Waiver. No waiver by any party of the performance or satisfaction of any covenant or condition shall be valid unless in writing, nor shall it be considered to be a waiver by such party of any other covenant or condition hereunder. c. Entire Agreement. This Agreement contains the entire agreement between the parties regarding the Lot and supersedes all prior agreements, whether written or oral, between the parties regarding the same subject. This Agreement may only be modified by subsequent written agreement signed by both the Seller and Buyer. d. Further Assurances. Before or after the Closing, Buyer or Seller shall execute and deliver to the other party all such documents that such party may reasonably require to effect, confirm or otherwise perfect the transfer of the Lot as contemplated by this Agreement. e. Survival. Except with as expressly provided in this Agreement, none of the agreements, warranties and representations contained herein shall survive the Closing and they shall all be merged into the deed. 8

9 f. Assignment. The Buyer may not assign this Agreement without the prior written consent of the Seller. Any assignment in contravention of this provision shall be void. No assignment shall release the Buyer herein named from any obligation or liability under this Agreement. Any permitted assignee shall be deemed to have made any and all representations made by the Buyer hereunder, as if the assignee were the original signatory hereof. g. Governing Law; Venue. This Agreement and the legal relations between the parties hereto shall be governed by and construed in accordance with the substantive and procedural laws of the State of Florida. Venue for any action arising out of this Agreement shall be St. Johns County, Florida. h. Possession; Risk of Loss. Seller shall deliver to Buyer possession of the Lot on the Closing Date, subject to any existing tenancies, rights of possession, and Permitted Exceptions. All risk of loss or damage with respect to the portions of the Lot conveyed shall pass from Seller to Buyer on the Closing Date. i. Invalidity. Any section of this Agreement that is found to be unenforceable by a court of competent jurisdiction shall be removed and the remaining sections of this Agreement shall remain in full force and effect provided the essential terms for each party remain valid, binding, and enforceable. j. WAIVER OF TRIAL BY JURY. THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM OR ANY MATTERS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. k. No Relationships. Nothing contained in this Agreement shall constitute or be construed to be or create a partnership, joint venture, or any other relationship between Seller and Buyer other than the relationship of Buyer and Seller of real property as set forth in this Agreement. l. Effective Date. When used herein, the term "Effective Date" or the phrase "the date hereof" or "the date of this Agreement" shall mean the last date that either Buyer or Seller executes this Agreement. m. Execution and Counterparts. To facilitate execution, the parties hereto agree that this Agreement may be executed and faxed to the other party and that the executed facsimile shall be binding and enforceable as an original. This Agreement may be executed in as many counterparts as may be required and it shall not be necessary that the signature of, or on behalf of, each party or that the signatures of all persons required to bind any party, appear on each counterpart; it shall be sufficient that the signature of, or on behalf of, each party, or that the signatures of the persons required to bind any party, appear on one or more of such counterparts. All counterparts shall collectively constitute a single agreement. 9

10 n. Section Headings. The Section Headings in this Agreement are intended for convenience only and shall not be taken into consideration in any construction or interpretation of this Agreement or any of its provisions. o. No Recording. The provisions hereof shall not constitute a lien on the Lot and this Agreement shall not be placed or suffered to be placed by Buyer for recording with either the office of the Clerk of the Court for St. Johns County, Florida or elsewhere. Any party causing the Agreement to be placed of Public Record shall be considered in default of its obligations hereunder. 15. RADON GAS. The following notice is incorporated into this Agreement pursuant to the requirements of Florida Statutes: "Radon Gas - Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed Federal and State guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your County Public Health Unit." 16. SELLER S MORTGAGE. This Agreement and Buyer s rights under this Agreement shall at all times be subordinated to any acquisition or development loans or mortgages and other security documents, and any modifications thereof, (collectively the Loan Documents ) executed by Developer in connection with the acquisition, construction, and development of Heartwood. Upon Closing of the sale of the Lot pursuant to the terms hereof, the Lot will be released from the lien of the Loan Documents. 17. PROPERTY TAXES: BUYER SHOULD NOT RELY ON THE SELLER S CURRENT PROPERTY TAXES AS THE AMOUNT OF PROPERTY TAXES THAT BUYER MAY BE OBLIGATED TO PAY IN THE YEAR SUBSEQUENT TO PURCHASE. A CHANGE IN OWNERSHIP OR PROPERTY IMPROVEMENTS TRIGGERS REASSESSMENTS OF THE PROPERTY THAT COULD RESULT IN HIGHER PROPERTY TAXES. IF YOU HAVE ANY QUESTIONS CONCERNING VALUATION, CONTACT THE COUNTY PROPERTY APPRAISER S OFFICE FOR INFORMATION. 18. DISCLAIMERS AND ACKNOWLEDGMENTS. a. W. Frank DiMare is one of the principals directing sales of the Lots. Mr. DiMare is also a licensed real estate broker with Crown Commercial Properties. b. The character and use of the property surrounding and in the vicinity of Heartwood may change. 10

11 c. Future improvements made by Buyer on the Lot, including without limitation dwellings, walls, landscaping, or excavation work, could disrupt drainage and/or retention and cause flooding or ponding if not correctly engineered. Buyer agrees to correctly engineer all such future improvements. d. Any view from the Lot may change or be eliminated over time due to construction on the lots in the vicinity of the Lot or growth of trees and other vegetation. e. Buyer acknowledges that Buyer is not relying upon any promises, agreements, or representations made by Seller, Seller s salespersons, agents, subcontractors, or employees ( Seller s Representatives ) concerning the Lot, the model homes that may be constructed on the Lot, or any land adjacent to or near the Lot, except as set forth in this Agreement. Buyer s decision to purchase the Lot has been based solely on Buyer s personal investigation and not on any statements or representations by Seller or its agents. Any expectation of economic benefits to Buyer is derived from Buyer s own investigation. Buyer expressly acknowledges and agrees that neither Seller nor Seller s agents, employees, brokers, or other representatives have made any warranties, assurances, statements, or other representations regarding any tax, investment, or other economic ramifications of owning the Property. The provisions of this paragraph shall survive the Closing. 19. SELLER S RIGHT TO TERMINATE AGREEMENT WITH BLOCKED PERSONS. Pursuant to United States Presidential Executive Order No ( Executive Order ), Seller is required to ensure that it does not transact business with persons or entities determined to have committed, or to pose a risk of committing or supporting, terrorist acts and those identified on the list of Specially Designated Nationals and Blocked Person ( List ) generated by the Office of Foreign Assets Control of the U.S. Department of the Treasury. The names or aliases of these persons or entities ( Blocked Persons ) are updated from time to time. In the event Seller learns that Buyer s name appears on the List, Seller reserves the right to delay the Closing contemplated by this Agreement pending Seller s investigation into the matter. If Seller is advised or determines that Buyer is a Blocked Person, Seller reserves the right to terminate this Agreement and take all other actions necessary to comply with the requirements of the Executive Order. The provisions of this paragraph will survive the Closing or termination of this Agreement. 20. FLOOD ZONE: [CHECK ONE]: [_X_] Buyer is advised to verify with appropriate governmental agencies whether flood insurance is required and what restrictions, if any, may apply to improving the Lot and rebuilding in the event of casualty. [ ] Public Law requires that all purchasers of residential property be specifically notified if the property is within an area designated by the federal 11

12 government as being prone to flooding. Because the Lot is situated within such a designated area, at closing the Buyer will be required to sign an acknowledgment that Buyer has been given notice that the Lot is located within an area as having special flood hazards within a reasonable time in advance of Buyer s signing the purchase agreement, lease, mortgage, loan closing papers, or other documents involved in this transaction. WHEREFORE, the Seller and Buyer have executed this Agreement on the dates set forth below. IF THE DISCLOSURE SUMMARY REQUIRED BY SECTION , FLORIDA STATUTES, HAS NOT BEEN PROVIDED TO THE PROSPECTIVE PURCHASER BEFORE EXECUTING THIS CONTRACT FOR SALE, THIS CONTRACT IS VOIDABLE BY BUYER BY DELIVERING TO SELLER OR SELLER S AGENT OR REPRESENTATIVE WRITTEN NOTICE OF THE BUYER S INTENTION TO CANCEL WITHIN 3 DAYS AFTER RECEIPT OF THE DISCLOSURE SUMMARY OR PRIOR TO CLOSING, WHICHEVER OCCURS FIRST. ANY PURPORTED WAIVER OF THIS VOIDABILITY RIGHT HAS NO EFFECT. BUYER S RIGHT TO VOID THIS CONTRACT SHALL TERMINATE AT CLOSING. Print Name: Date: Fax No.: Print Name: Date: Fax No.: BUYER(S) HEARTWOOD DEVELOPMENT, LLC, a Florida limited liability company By: W. Frank DiMare Its Manager Date: Fax No.: SELLER 12

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