REAL ESTATE PURCHASE CONTRACT (UNIMPROVED PROPERTY)
Exhibit
10.01
REAL
ESTATE PURCHASE CONTRACT (UNIMPROVED PROPERTY)
STATE OF
CALIFORNIA
COUNTY OF
XXXX
1. PARTIES: The Nacelle
Corporation (Seller) agrees to sell and convey to M~Wave, Inc. or its designee
(Purchaser), and Purchaser agrees to buy from Seller the Property described
below.
2. PROPERTY: Lot _____,
Block_____, in the unincorporated area of the County of Xxxx, State of
California, described as follows:
THE
NORTHEAST QUARTER OF SECTION 36, TOWNSHIP 11 NORTH, RANGE 15 WEST, SAN
BERNARDINO MERIDIAN, IN THE UNINCORPORATED AREA OF THE COUNTY OF XXXX, STATE OF
CALIFORNIA, ACCORDING TO THE OFFICAL PLAT THEREOF. Assessors Parcel
No. 000-000-00 together with all rights, privileges and appurtenances pertaining
thereto, including but not limited to: water rights, claims, permits, strips and
gores, easements, and cooperative or association memberships (the
"Property").
See
Exhibit “A” annexed hereto.
3.
SALES PRICE:
| A. |
Cash
portion of Sales Price payable by Purchaser at closing
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$ | 0 | |||
| B. |
Cash
equivalent portion of sales price payable by Purchaser at
closing
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$ | 250,000.00 | |||
| C. |
Sum
of all financing described below (See Paragraph 4C)
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$ | 0 | |||
| D. |
Sales
Price (Sum of A, B and C)
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$ | 250,000.00 |
4. FINANCING: The portion of
Sales Price not payable in cash (or cash equivalent) will be paid as follows:
[Check applicable items
below.]
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_____
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A.
THIRD PARTY FINANCING: One or more third
party mortgage loans in the total amount of $___________________. If the
Property does not satisfy the lenders' underwriting requirements for the
loan(s), this contract will terminate and the xxxxxxx money will be
refunded to Purchaser. [Check one item
only:]
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|
_____
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(1)
This contract is subject to Purchaser being approved for the financing
described in the attached Third Party Financing
Condition Addendum.
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_____
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(2)
This contract is not subject to Purchaser being approved for
financing.
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_____
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B.
ASSUMPTION: The assumption of the unpaid principal balance of one or more
promissory notes described in the attached Loan Assumption
Addendum.
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5. XXXXXXX MONEY: Upon
execution of this contract by both parties, Purchaser shall deposit $100.00 as
xxxxxxx money with First American Title Company, as escrow agent, at 000 Xxxxxx
Xxxx Xxxxxxxxx, XX 00000. If Purchaser fails to deposit the xxxxxxx
money as required by this contract, Purchaser will be in default.
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6.
TITLE POLICY AND SURVEY:
A. TITLE
POLICY: Seller shall furnish to Purchaser at [check one:]
_____Seller’s √ Purchaser’s
expense a standard owner policy of title insurance (Title Policy) providing
Purchaser clean marketable title to the Property issued by: First American Title
Company in the amount of the Sales Price, dated at or after closing, insuring
Purchaser against loss under the provisions of the Title Policy, subject to the
promulgated exclusions (including existing building and zoning ordinances) and
the following exceptions:
(1) The
standard printed exception for standby fees, taxes and assessments.
(2) Liens
created as part of the financing described in Paragraph 4.
(3)
Utility easements created by the dedication deed or plat of the subdivision in
which the Property is located.
(4)
Reservations or exceptions otherwise permitted by this contract or as may be
approved by Purchaser in writing.
(5) The
standard printed exception as to waters, tidelands, beaches, streams, and
related matters.
(6) The
standard printed exception as to discrepancies, conflicts, shortages in area or
boundary lines, encroachments or protrusions, or overlapping improvements.
Purchaser, at Purchaser’s expense, may have the exception amended to read,
"shortages in area".
B.
COMMITMENT: Within 20 days after the Title Company receives a copy of this
contract, Seller shall furnish to Purchaser a commitment for title insurance
(Commitment) and, at Purchaser's expense, legible copies of restrictive
covenants and documents evidencing exceptions in the Commitment (Exception
Documents) other than the standard printed exceptions. Seller authorizes the
Title Company to mail or hand deliver the Commitment and Exception Documents to
Purchaser at Purchaser's address shown in Paragraph 21. If the Commitment and
Exception Documents are not delivered to Purchaser within the specified time,
the time for delivery will be automatically extended up to 15 days.
C.
SURVEY: The survey must be made by a registered professional land surveyor
acceptable to the Title Company and any lender. [Check one box
only:]
_____ (1)
Within __________ days after the effective date of this contract, Seller, at
Seller’s expense, shall furnish a new survey to Purchaser.
_____
(2) Within ______ days after the effective date of this contract, Purchaser, at
Purchaser’s expense, shall obtain a new survey.
√ (3)
Within twenty (20) days after the effective date of this contract, Seller shall
furnish Seller's existing survey of the Property to Purchaser and the Title
Company, along with Seller's affidavit acceptable to the Title Company for
approval of the survey. If the survey is not approved by the Title Company or
Purchaser's lender, a new survey will be obtained at [check one:]
_____Seller’s √ Purchaser’s
expense no later than twenty (20) days prior to the Closing Date.
_____ (4)
No survey is required.
D.
OBJECTIONS: Within twenty (20) days after Purchaser receives the Commitment,
Exception Documents and the survey, Purchaser may object in writing to (i)
defects, exceptions, or encumbrances to title: disclosed on the survey other
than items 6A(1) through (6) above; disclosed in the Commitment other than items
6A(1) through (6) above; (ii) any portion of the Property lying in the 100 year
flood plain as shown on the current Federal Emergency Management Agency map; or
(iii) any exceptions which prohibit the following use or activity: UNFETTERD USE
OF THE PROPERTY FOR GENERATING DISTRIBUTION AND SALE OF WIND ENERGY (in
accordance with Paragraph 11).
Purchaser's
failure to object within the time allowed will not constitute a waiver of the
requirements in Schedule C of the Commitment. Seller shall cure the timely
objections of Purchaser or any third party lender within fifteen (15) days after
Seller receives the objections and the Closing Date will be extended as
necessary. If objections are not cured within such fifteen (15) day period, this
contract will terminate and the xxxxxxx money will be refunded to Purchaser
unless Purchaser waives the objections or extends the time to cure
same.
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E. TITLE
NOTICES:
(1)
ABSTRACT OR TITLE POLICY: Purchaser acknowledges that it has been advised that
it should have an abstract of title covering the Property examined by an
attorney of Purchaser’s selection, or Purchaser should be furnished with or
obtain a Title Policy. If a Title Policy is furnished, the Commitment should be
promptly reviewed by an attorney of Purchaser’s choice due to the time
limitations on Purchaser’s right to object.
(2)
MANDATORY OWNERS' ASSOCIATION MEMBERSHIP: The Property [check one:]
_____is √ is not subject
to mandatory membership in an owners' association. If the Property is subject to
mandatory membership in an owners' association, Seller notifies Purchaser that,
as a purchaser of property in the residential community in which the Property is
located, you are obligated to be a member of the owners' association.
Restrictive covenants governing the use and occupancy of the Property and a
dedicatory instrument governing the establishment, maintenance, and operation of
this residential community have been or will be recorded in the Real Property
Records of the county in which the Property is located. Copies of the
restrictive covenants and dedicatory instrument may be obtained from the county
clerk. You are obligated to pay assessments to the owners' association. The
amount of the assessments is subject to change. Your failure to pay the
assessments could result in a lien on and the foreclosure of the
Property.
(3)
STATUTORY TAX DISTRICTS: If the Property is situated in a utility or other
statutorily created district providing water, sewer, drainage, or flood control
facilities and services, the state may require Seller to deliver and Purchaser
to sign the statutory notice relating to the tax rate, bonded indebtedness, or
standby fee of the district prior to final execution of this
contract.
(4) TIDE
WATERS: If the Property abuts the tidally influenced waters of the state, the
state may require a notice regarding coastal area property to be included in the
contract. An addendum containing the notice promulgated by the state or required
by the parties must be used. (Consult with an attorney if you are unclear
on this requirement.)
(5)
ANNEXATION: If the Property is located outside the limits of a municipality,
Seller notifies Purchaser that the Property may now or later be included in the
extraterritorial jurisdiction of a municipality and may now or later be subject
to annexation by the municipality. Each municipality maintains a map that
depicts its boundaries and extraterritorial jurisdiction. To determine if the
Property is located within a municipality’s extraterritorial jurisdiction or is
likely to be located within a municipality’s extraterritorial jurisdiction,
contact all municipalities located in the general proximity of the Property for
further information.
(6)
UNIMPROVED PROPERTY LOCATED IN A CERTIFICATED SERVICE AREA OF A UTILITY SERVICE
PROVIDER: If the Property is located in a certificated service area of a utility
service provider and the Property does not receive water or sewer service from
the utility service provider on the date the Property is transferred, the state
may require a notice regarding the cost of providing water or sewer services to
the Property. An addendum containing the notice promulgated by the state or
required by the parties must be used.
(7)
AGRICULTURAL DEVELOPMENT DISTRICT: The Property [check one:]
_____is _____is not located in a agricultural development
district.
7.
PROPERTY CONDITION:
A.
INSPECTIONS, ACCESS AND UTILITIES: Purchaser may have the Property inspected by
inspectors selected by Purchaser and licensed by the state or otherwise
permitted by law to make inspections. Seller shall permit Purchaser and
Purchaser’s agents access to the Property at reasonable times. Seller shall pay
for turning on existing utilities. NOTICE: Purchaser should determine the
availability of utilities to the Property suitable to satisfy Purchaser’s
needs.
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B.
ACCEPTANCE OF PROPERTY CONDITION: Purchaser accepts the Property in its present
condition; provided Seller, at Seller’s expense, shall complete the
following:
C.
COMPLETION OF REPAIRS: Unless otherwise agreed in writing, Seller shall complete
all agreed repairs prior to the Closing Date. All required permits must be
obtained, and repairs must be performed by persons who are licensed or otherwise
permitted by law to provide such repairs. At Purchaser’s election, any
transferable warranties received by Seller with respect to the repairs will be
transferred to Purchaser at Purchaser’s expense. If Seller fails to complete any
agreed repairs prior to the Closing Date, Purchaser may do so and receive
reimbursement from Seller at closing. The Closing Date will be extended up to 15
days, if necessary, to complete repairs.
D.
ENVIRONMENTAL MATTERS: Notwithstanding Seller’s representations as to the use of
the Property (Paragraph 11), Purchaser has the right within twenty (20) days of
the effective date of this Contract to schedule inspections at its sole cost and
expense to determine the presence of wetlands, toxic substances, including
asbestos and wastes or other environmental hazards, or the presence of a
threatened or endangered species or its habitat that may affect Purchaser’s
intended use of the Property. If inspections are conducted and it is
determined that any of the foregoing matters are determined to exist, Purchaser
has the right upon five (5) days from receipt of inspection results/reports to
terminate this Agreement without any liability on the part of either Seller or
Purchaser or any of their agents or in the alternative the Purchaser may provide
notice of its intent to renegotiate and adjust the Purchase Price should the
Parties fail to agree on an adjusted price within ten (10) business days of
Purchaser’s notice to Seller then this Agreement will terminate without any
liability to the Parties or agents as provided for herein.
E.
SELLER’S DISCLOSURES: Except as otherwise disclosed in this contract, Seller has
no knowledge of the following:
(1) any
flooding of the Property which has had a material adverse effect on the use of
the property;
(2) any
pending or threatened litigation, condemnation, or special assessment affecting
the Property;
(3) any
environmental hazards or conditions which materially affect the
Property;
(4) any
dumpsite, landfill, or underground tanks or containers now or previously located
on the Property;
(5) any
wetlands, as defined by federal or state law or regulation, affecting the
Property;
(6)
anything that would prevent the use of the Property as intended and set forth in
Section 6D(iii) of this Agreement; and
(7) any
threatened or endangered species or their habitat affecting the Property.
(8) Seller
is a U.S. corporation in good standing in all jurisdictions where it conducts
business or owns property and has unanimous shareholder approval to enter into
this Agreement.
F. PURCHASER’S
DISCLOSURES:
(1)
Purchaser has Board approval to enter into this Purchase Agreement.
8. BROKERS' FEES: Buyer and
Seller represent to the other that NO BROKER was involved in facilitating this
transaction and in the event of any claim for broker fees or commissions, each
party agrees to indemnify the other in connection with same.
9.
CLOSING:
A. The
closing of the sale will be on or about March 10, 2009, or within 10
days after objections to matters disclosed in the Commitment Inspections per
Paragraph 7D, or by the survey have been cured, whichever date is later (Closing
Date). If either party fails to close the sale by the Closing Date, the
non-defaulting party may exercise the remedies contained in Paragraph
15.
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B. At
closing:
(1)
Seller shall execute and deliver a general warranty deed conveying title to the
Property to Purchaser and showing no additional exceptions to those permitted in
Paragraph 6 and furnish tax statements or certificates showing no delinquent
taxes on the Property.
(2)
Purchaser shall pay the Sales Price via the issuance of shares of its Common
Stock and the issuance of a Convertible Debenture as set forth
herein.
(3)
Seller and Purchaser shall execute and deliver any notices, statements,
certificates, affidavits, releases, loan documents and other documents required
of them by this contract, the Commitment or law necessary for the closing of the
sale and the issuance of the Title Policy.
C. All
covenants, representations and warranties in this contract survive
closing.
10. POSSESSION: Seller shall
deliver possession of the Property to Purchaser upon closing.
11. SPECIAL PROVISIONS: It is
expressly understood that the intended use of the Property is for GENERATING
DISTRIBUTION AND SALE OF WIND ENDERGY via the construction of wind generating
turbines and the connection of same to an energy delivering source (grid).
Seller represents that the Property is fit for the specific purposes stated
herein.
12.
SETTLEMENT AND OTHER EXPENSES:
A. The
following expenses must be paid at or prior to closing:
(1)
Expenses payable by Seller (Seller's Expenses):
(a)
Releases of existing liens, including prepayment penalties and recording fees;
release of Seller’s loan liability; tax statements or certificates; preparation
of deed; one-half of escrow fee; transfer taxes for the Property; and other
expenses payable by Seller under this contract.
(2)
Expenses payable by Purchaser (Purchaser's Expenses):
(a) Loan
origination, discount, buy-down, and commitment fees (Loan Fees).
(b)
Appraisal fees; loan application fees; credit reports; preparation of loan
documents; interest on the notes from date of disbursement to one month prior to
dates of first monthly payments; recording fees; copies of easements and
restrictions; mortgagee title policy with endorsements required by lender;
loan-related inspection fees; photos, amortization schedules, the escrow fee;
all prepaid items, including required premiums for flood and hazard insurance,
reserve deposits for insurance, ad valorem taxes and special governmental
assessments; final compliance inspection; courier fee, repair inspection,
underwriting fee and wire transfer, expenses incident to any loan, and other
expenses payable by Purchaser under this contract.
B. If any
expense exceeds an amount expressly stated in this contract for such expense to
be paid by a party, that party may terminate this contract unless the other
party agrees to pay such excess. Purchaser may not pay charges and fees
expressly prohibited by FHA, VA, state-coordinated veteran’s housing assistance
programs or other governmental loan program regulations.
13.
PRORATIONS AND ROLLBACK TAXES:
A.
PRORATIONS: Taxes for the current year, interest, maintenance fees, assessments,
dues and rents will be prorated through the Closing Date. If taxes for the
current year vary from the amount prorated at closing, the parties shall adjust
the prorations when tax statements for the current year are available. If taxes
are not paid at or prior to closing, Purchaser shall pay taxes for the current
year.
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B.
ROLLBACK TAXES: If this sale or Purchaser’s use of the Property after closing
results in the assessment of additional taxes, penalties or interest
(Assessments) for periods prior to closing, the Assessments will be the
obligation of Purchaser. If Seller’s change in use of the Property prior to
closing or denial of a special use valuation on the Property claimed by Seller
results in Assessments for periods prior to closing, the Assessments will be the
obligation of Seller. Obligations imposed by this paragraph will survive
closing.
14. CASUALTY LOSS: If any part
of the Property is damaged or destroyed by fire or other casualty after the
effective date of this contract, Seller shall restore the Property to its
previous condition (so that the Property may be used for the intended use as set
forth in Paragraph 11) as soon as reasonably possible, but in any event by the
Closing Date. If Seller fails to do so due to factors beyond Seller’s control,
Purchaser may (a) terminate this contract and the xxxxxxx money will be refunded
to Purchaser (b) extend the time for performance up to fifteen (15) days and the
Closing Date will be extended as necessary or (c) accept the Property in its
damaged condition with an assignment of insurance proceeds and receive credit
from Seller at closing in the amount of the deductible under the insurance
policy. Seller’s obligations under this paragraph are independent of any
obligations of Seller under Paragraph 7.
15. DEFAULT: If Purchaser
fails to comply with this contract, Purchaser will be in default, and Seller
may
(a)
enforce specific performance, seek such other relief as may be provided by law,
or both, or
(b)
terminate this contract and receive the xxxxxxx money as liquidated damages,
thereby releasing both parties from this contract. If, due to factors beyond
Seller’s control, Seller fails within the time allowed to make any non-casualty
repairs or deliver the Commitment, or survey, if required of Seller, Purchaser
may (a) extend the time for performance up to fifteen (15) days and the Closing
Date will be extended as necessary or (b) terminate this contract as the sole
remedy and receive the xxxxxxx money. If Seller fails to comply with this
contract for any other reason, Seller will be in default and Purchaser may (a)
enforce specific performance, seek such other relief as may be provided by law,
or both, or (b) terminate this contract and receive the xxxxxxx money, thereby
releasing both parties from this contract.
16. MEDIATION: Any dispute
between Seller and Purchaser related to this contract which is not resolved
through informal discussion [check one:] √ will
_____will not be submitted to a mutually acceptable mediation service or
provider. The parties to the mediation shall bear the mediation costs equally.
This paragraph does not preclude a party from seeking equitable relief from a
court of competent jurisdiction.
17. ATTORNEY'S FEES: The
prevailing party in any legal proceeding related to this contract is entitled to
recover reasonable attorney’s fees and all costs of such proceeding incurred by
the prevailing party.
18. ESCROW: The escrow agent
is not (a) a party to this contract and does not have liability for the
performance or nonperformance of any party to this contract, (b) liable for
interest on the xxxxxxx money and (c) liable for the loss of any xxxxxxx money
caused by the failure of any financial institution in which the xxxxxxx money
has been deposited unless the financial institution is acting as escrow agent.
At closing, the xxxxxxx money must be applied first to any cash down payment,
then to Purchaser's Expenses and any excess refunded to Purchaser. If both
parties make written demand for the xxxxxxx money, escrow agent may require
payment of unpaid expenses incurred on behalf of the parties and a written
release of liability of escrow agent from all parties. If one party makes
written demand for the xxxxxxx money, escrow agent shall give notice of the
demand by providing to the other party a copy of the demand. If escrow agent
does not receive written objection to the demand from the other party within 30
days after notice to the other party, escrow agent may disburse the xxxxxxx
money to the party making demand reduced by the amount of unpaid expenses
incurred on behalf of the party receiving the xxxxxxx money and escrow agent may
pay the same to the creditors. If escrow agent complies with the provisions of
this paragraph, each party hereby releases escrow agent from all adverse claims
related to the disbursal of the xxxxxxx money. Escrow agent's notice to the
other party will be effective when deposited in the U. S. Mail, postage prepaid,
certified mail, return receipt requested, addressed to the other party at such
party's address shown below. Notice of objection to the demand will be deemed
effective upon receipt by escrow agent.
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19. REPRESENTATIONS: Seller
represents that as of the Closing Date (a) there will be no liens, assessments,
or security interests against the Property which will not be satisfied out of
the sales proceeds unless securing payment of any loans assumed by Purchaser and
(b) assumed loans will not be in default. If any representation of Seller in
this contract is untrue on the Closing Date, Purchaser may terminate this
contract and the xxxxxxx money will be refunded to Purchaser.
20. FEDERAL TAX REQUIREMENTS:
If Seller is a "foreign person," as defined by applicable law, or if Seller
fails to deliver an affidavit to Purchaser that Seller is not a "foreign
person," then Purchaser shall withhold from the sales proceeds an amount
sufficient to comply with applicable tax law and deliver the same to the
Internal Revenue Service together with appropriate tax forms. Internal Revenue
Service regulations require filing written reports if currency in excess of
specified amounts is received in the transaction.
21. NOTICES: All notices from
one party to the other must be in writing and are effective when mailed to,
hand-delivered at, or transmitted by facsimile as follows:
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To
Purchaser at:
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To
Seller at:
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M~Wave,
Inc,
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The Nacelle Corporation
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Telephone:
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(
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)
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Telephone:
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(
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)
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Facsimile:
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(
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)
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Facsimile:
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(
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)
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22. AGREEMENT OF PARTIES: This
contract contains the entire agreement of the parties and cannot be changed
except by their written agreement. Addenda which are a part of this contract are
(check all applicable boxes):
√ Addendum for
Unimproved Property Located in a Certificated Service Area of a Utility Service
Provider
√ Addendum for
Sale of Other Property by Purchaser
____Other (list):
23. TERMINATION OPTION: This paragraph will be a part of this
contract ONLY if both blanks are filled in and Purchaser has paid the Option
Fee. Purchaser has paid Seller $___________________ (Option Fee) for the
unrestricted right to terminate this contract by giving notice of termination to
Seller within __________ days after the effective date of this contract. If
Purchaser gives notice of termination within the time specified, the Option Fee
will not be refunded, however, any xxxxxxx money will be refunded to Purchaser.
The Option Fee [check
one:] _____will _____will not be credited to the Sales
Price at closing. For the purposes of this paragraph, time is of the essence;
strict compliance with the time for performance stated herein is
required.
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24. CONSULT AN ATTORNEY: READ
THIS CONTRACT CAREFULLY. If you do not understand the effect of this contract,
consult an attorney BEFORE signing. The Parties acknowledge that
Xxxxxxx, Xxxxxxx & Xxxxxx LLP has prepared the Contract and may represent
Purchaser at closing. Seller has been advised to consult with and
afforded an opportunity to consult with an attorney prior to entering into this
Contract. It is EXPRESSLY UNDERSTOOD that if no attorney is listed
below, Seller has waived its rights to and has elected not to consult with an
Attorney. Seller understands that it is in Seller’s best interest to
consult with an Attorney prior to entering into this or any Contract, and has
made an informed decision to waive this right.
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Purchaser’s
Attorney is:
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Seller’s
Attorney is:
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Xxxxxxx, Xxxxxxx & Xxxxxx,
LLP
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000 Xxxxx Xxxxxx
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Xxx Xxxx,
XX 00000
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Telephone:
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(
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000
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)
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000-0000
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Telephone:
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(
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)
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Facsimile:
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(
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000
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)
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000-0000
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Facsimile:
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(
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)
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EXECUTED
the _______ day of _________________, 2009 (EFFECTIVE
DATE).
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Purchaser
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Seller
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Purchaser
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Seller
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SELLER’S
RECEIPT:
Receipt
of $___________________ (Option
Fee) in the form of ___________________
is acknowledged.
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Seller
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Date
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Exhibit
“A”
The
Northeast Quarter of Section 36, Township 11 North, Range 15 West, San
Bernardino Meridian, in the Unincorporated Area, of the County of Xxxx, State of
California, According to the official plat thereof.
APN:
000-000-00
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