LAND PURCHASE AND SALE AGREEMENT
SELLER:
CMD SOUTHWEST INC.
PURCHASER:
MICROAGE COMPUTER CENTERS, INC.
(Option Land Parcel)
07/26/86
PURCHASE AND SALE AGREEMENT
This AGREEMENT is made on the 8th day of August, 1996, between CMD
SOUTHWEST INC., an Arizona corporation ("Seller"), and MICROAGE COMPUTER
CENTERS, INC., a Delaware corporation ("Purchaser").
The parties hereto hereby agree as follows:
1. Purchase and Sale. Seller hereby agrees to sell to Purchaser, and
Purchaser hereby agrees to purchase from Seller, that certain real property
described on Exhibit A attached hereto and made a part hereof ("Property"), for
a total purchase price equal to the product of (a) Five and 00/100 dollars
($5.00), and (b) the number of Net Square Feet (as hereinafter defined) of the
Property ("Purchase Price"), subject and according to the terms and conditions
set forth in this Agreement.
2. Xxxxxxx Money Deposit. Simultaneously with the execution and
delivery of this Agreement by Seller and Purchaser, (a) Seller and Purchaser
shall each execute and deliver to each other and Chicago Title Insurance Company
("Escrow Agent") a written escrow agreement between Seller, Purchaser and Escrow
Agent identical in form and substance to Exhibit B hereto ("Xxxxxxx Money Escrow
Agreement"), and (b) Purchaser shall deliver to Escrow Agent an amount equal to
Fifty Thousand and 00/100 Dollars ($50,000.00) ("Xxxxxxx Money Deposit"). The
Xxxxxxx Money Deposit, together with any interest thereon, shall be invested,
maintained and disbursed pursuant to the terms of the Xxxxxxx Money Escrow
Agreement and this Agreement.
3. Title. Seller shall deliver to Purchaser within fifteen (15) days of
the latest of each of the dates set forth after the signatures of each of the
parties hereto ("Effective Date") a commitment for an ALTA Form B Owner's Title
Insurance Policy ("Title Commitment") for the Property issued by Chicago Title
Insurance Company ("Title Insurer") in the amount of the Purchase Price covering
title to the Property and showing Seller as owner of the Property in fee simple.
4. Survey. Seller shall deliver to Purchaser within twenty (20) days of
the Effective Date an updated survey of the Property prepared in accordance with
the 1992 "Minimum Standard Detail Requirements for Land Title Surveys" jointly
established and adopted by ALTA and ACSM meeting the accuracy standards of an
Urban Survey ("Survey") prepared and certified by a surveyor licensed by the
State of Arizona and certified to Purchaser and Title Insurer which sets forth
the legal description of the Property and depicts the Property and all
improvements, encroachments, easements, building lines and other similar
restrictions of record. The Survey shall include the net square feet of the
Property ("Net Square Feet"), defined as the gross square feet of the Property,
including fractional square feet, less the number of square feet falling within
any public right of ways on the Property.
5. Environmental Report. Seller shall deliver to Purchaser within
twenty (20) days of the Effective Date an updated "Phase I" environmental report
("Environmental Report") prepared by an engineer licensed by the State of
Arizona setting forth a description of the environmental condition of the
Property.
6. Representations and Warranties.
(a) Representations and Warranties of Seller. In
order to induce Purchaser to execute, deliver and perform the
obligations of Purchaser hereunder, Seller hereby makes the
representations and warranties set forth in this Section 6(a) to
Purchaser on and as of the Effective Date.
(i) Seller has full capacity, right,
power and authority to execute, deliver and perform its
obligations under this Agreement, and all required action and
approvals therefor have been duly taken and obtained.
(ii) The individuals signing this
Agreement on behalf of Seller are duly authorized to sign the
same on behalf of Seller and to bind Seller thereto.
(iii) Seller has not received any
written notice of any pending condemnation actions against the
Property.
(iv) Seller has not received any
written notice of any violation of applicable laws regulating
the use, storage, handling or disposal of substances (A)
designated as a "hazardous substance" pursuant to Section 311
of the Clean Water Act or listed pursuant to Section 307 of
the Clean Water Act,(B) defined as a "hazardous waste"
pursuant to Section 1004 of the Resource Conservation and
Recovery Act, (C) defined as a "hazardous substance" pursuant
to Section 101 of the Comprehensive Environmental Response,
Compensation, and Liability Act, or (D) subject to regulations
as a hazardous chemical substance pursuant to Section 6 of the
Toxic Substances Control Act.
(b) Representations and Warranties of Purchaser. In
order to induce Seller to execute, deliver and perform the obligations
of Seller hereunder, Purchaser hereby makes the representations and
warranties set forth in this Section 6(b) to Seller on and as of the
Effective Date.
(i) Purchaser has full capacity,
right, power and authority to execute, deliver and perform its
obligations under this Agreement, and all required action and
approvals therefor have been duly taken and obtained.
(ii) The individuals signing this
Agreement on behalf of Purchaser are duly authorized to sign
the same on behalf of Purchaser and to bind Purchaser thereto.
(c) Survival. All of the representations and
warranties contained in this Section 6 shall survive the Closing (as
hereinafter defined) for a period of six months.
7. General Covenants. During the period beginning on the Effective Date
and ending on the Closing Date or the earlier termination of this Agreement
according to the terms hereof, Seller will comply with each of the covenants set
forth in this Section 7 without cost or expense to Purchaser.
(a) Liens and Encumbrances. Seller will not convey
any interest in the Property to any person or entity, or intentionally
encumber the Property, without the prior written consent of Purchaser.
(b) Alterations. Seller will not make any
improvements to the Property, without the prior written consent of
Purchaser.
8. Conditions Precedent. The obligation of Purchaser to close the
transaction contemplated under this Agreement is, unless waived in writing by
Purchaser, subject to Purchaser's determination, in Purchasers sole and absolute
discretion, that the Property is desirable for Purchasers intended purpose on or
before the date which is forty five (45) days after the Effective Date
("Contingency Period"). Purchaser may, at its option, elect to terminate this
Agreement by delivering written notice to Seller prior to the expiration of the
Contingency Period, in which event the Xxxxxxx Money Deposit, together with all
interest thereon shall forthwith be returned to Purchaser), all obligations of
the parties under this Agreement shall cease and this Agreement shall be of no
further force and effect. If Purchaser fails to deliver to Seller any written
notice of such election to terminate prior to the expiration of the Contingency
Period, Purchaser shall be deemed to have accepted the condition of the Property
and to have waived any condition precedent to Closing.
9. Closing.
(a) Closing Place. The consummation of the purchase
and sale of the Property subject and according to the terms of this
Agreement ("Closing") shall occur at the office of Title Insurer.
(b) Closing Date. The Closing shall occur on the date
which is thirty (30) days after the expiration of the Contingency
Period, or on any other date prior to such date which is agreed upon by
Seller and Purchaser in writing ("Closing Date").
(c) Delivery of Documents. On the Closing Date,
Seller and Purchaser shall deliver the following documents and other
items to the following parties:
(i) Seller Documents. Seller shall
deliver or cause to be delivered to Purchaser the items set
forth in this subsection (i).
(A) Deed. A special warranty
deed to the Property in the form and substance shown
on Exhibit "G" attached hereto and made a part
hereof, duly executed by Seller.
(B) Non-Foreign
Certifications. A certificate duly executed by Seller
setting forth the address and federal tax
identification number of Seller and certifying that
Seller is a ("United States Person") and not a
"foreign person" in accordance with and for the
purpose of the provisions of Sections 7701 and 1445
(as may be amended) of the Internal Revenue Code of
1986, as amended, and any regulations promulgated
thereunder.
(C) Title Policy. A title
policy or commitment to issue a title policy in the
amount of the Purchase Price, covering title to the
Property on the Closing Date, showing Purchaser as
the sole owner of the Real Property in fee simple,
subject only to the matters disclosed on the Title
Commitment.
(D) Resolution. A certified
corporate resolution passes by the Board of Directors
of Seller authorizing the transaction contemplated in
this Agreement and confirming the authority of the
person executing this Agreement on behalf of Seller.
(ii) Purchaser Documents. Purchaser
shall deliver or cause to be delivered to Seller the items set
forth in this subsection (ii):
(A) Cash. An amount by
federally insured wire transfer or by certified check
drawn on a bank acceptable to Seller equal to the
Purchase Price, less the Xxxxxxx Money Deposit, as
adjusted pursuant to Section 9(e) and Section 14
hereof ("Cash Payment").
(iii) Seller and Purchaser
Documents. Seller and Purchaser shall each deliver or cause to
be delivered to the Escrow Agent the items set forth in this
subsection (iii):
(A) Title Documents. ALTA
statements and transfer tax declarations in forms
required by the Title Insurer with respect to the
sale of the Property according to the terms of this
Agreement.
(B) Direction. Joint written
direction to the Escrow Agent to disburse to Seller
the entire amount of the Xxxxxxx Money Deposit,
together with all interest which has accrued thereon.
(d) Deed and Money Escrow. At the option of Seller,
the sale and purchase of the Property shall be closed through a deed
and money escrow with Escrow Agent or Title Insurer ("Closing Escrow")
in accordance with the general provisions in the usual form of deed and
money escrow agreement then in use by Escrow Agent or Title Insurer
("Closing Escrow Agreement") with such special provisions inserted in
the Closing Escrow Agreement as may be required to conform with this
Agreement. Upon the creation of the Closing Escrow Agreement, anything
herein to the contrary notwithstanding, payment of the Purchase Price
and delivery of all documents to be delivered hereunder shall be made
through the Closing Escrow and in accordance with the terms of the
Closing Escrow Agreement. The parties agree to create the Closing
Escrow at least approximately 10 days prior to the Closing Date and to
direct Escrow Agent to transfer the Xxxxxxx Money Deposit, together
with all interest thereon, to the Closing Escrow for return to
Purchaser only in accordance with the terms of this Agreement. One half
of the costs of the Closing Escrow shall be paid by Seller and one half
of the costs of the Closing Escrow shall be paid by Purchaser.
(e) Real Estate Taxes.
(i) Definitions. The following terms
shall have the following respective meanings for the
purpose of this Section 9(e):
(A) Base Year Tax Amount. The
term "Base Year Tax Amount" means the amount of the
real estate taxes for the Base Year.
(B) Base Year. The term "Base
Year" means the calendar year most recently before
the Closing Year for which the final real estate
taxes have been determined by the real estate taxing
authority.
(C) Adjustment Days. The term
"Adjustment Days" means the number of days during the
period beginning on and including January 1 of the
calendar year in which the Closing occurs and ending
on and including the date of the Closing.
(D) Adjustment Amount. The
term "Adjustment Amount" means the amount of the real
estate taxes paid on or before the date of the
Closing for the Base Year and any calendar year after
the Base Year.
(E) Closing Year. The term
"Closing Year" means the calendar year in which the
Closing occurs.
(F) Closing Year Tax Amount.
The term "Closing Year Tax Amount" means the amount
of the real estate taxes paid or payable for the
Closing Year.
(G) Tax Proration Amount. The
term "Tax Proration Amount" means the amount
determined by the application of the following
formula:
Base Year Tax Amount x (365 + Adjustment Days) - Adjustment Amount
------------------------------------------------------------------
365
(H) Real Estate Taxes. All
references to real estate taxes for a particular
calendar year means the real estate taxes for the
Real Property assessed for such calendar year and
payable in the next succeeding calendar year.
(ii) Purchaser Credit. General real
estate taxes with respect to the Property shall be prorated
and there shall be a credit at the Closing in favor of
Purchaser against the Purchase Price in an amount equal to the
Tax Proration Amount. All prorations with respect to Real
Estate Taxes shall be final.
(f) Closing Charges. Seller shall pay all charges for
title insurance furnished pursuant to Section 3 hereof, the Survey
furnished pursuant to Section 4 hereof, the Environmental Report
pursuant to Section 5 hereof, subject to the provisions of Section 8,
and the release of all mortgages currently encumbering the Property.
Purchaser shall pay for all title insurance in addition to that to be
furnished by Seller under Section 3 hereof, all surveys in addition to
that to be furnished by Seller under Section 4 hereof, any stamp or
transfer taxes imposed by any state, county or other governmental
agency on transfer of title, and all recordation and title insurance
charges incurred in connection with any mortgage loans obtained by
Purchaser. The parties shall each be solely responsible for the fees
and disbursements of their respective counsel and other professional
advisers.
10. Default.
(a) Default by Seller. In the event that Seller fails
to consummate the transactions contemplated by and according to the
terms of this Agreement for any reason other than the termination of
this Agreement pursuant to the terms hereof or the default by Purchaser
under this Agreement, Purchaser shall have the right, as its sole and
exclusive remedies hereunder, to either (i) terminate this Agreement in
its entirety by written notice to Seller within 5 days after the
Closing Date, in which event the Xxxxxxx Money Deposit, together with
all interest thereon, shall forthwith be returned to Purchaser, all
obligations of the parties hereto shall thereupon cease and this
Agreement shall thereafter be of no
further force and effect, or (ii) seek specific performance of the
obligations of Seller under this Agreement.
(b) Default by Purchaser. In the event that Purchaser
fails to consummate the transactions contemplated by and according to
the terms of this Agreement for any reason other than the termination
of this Agreement pursuant to the terms hereof or the default by Seller
under this Agreement, Seller shall have the right, as its sole and
exclusive remedy hereunder, to retain the Xxxxxxx Money Deposit,
together with all interest earned thereon, as liquidated damages, it
being acknowledged that actual damages to Seller would be difficult or
impossible to ascertain.
11. Brokerage.
(a) Seller Brokerage. Seller hereby represents to
Purchaser that Seller has not dealt with any broker or finder in
respect to the transaction contemplated by this Agreement other than CB
Commercial Real Estate ("Broker"). Seller hereby agrees to indemnify
Purchaser for any claim for brokerage commission or finder's fee
asserted by a person, firm or corporation claiming to have been engaged
by Seller with respect thereto.
(b) Purchaser Brokerage. Purchaser hereby represents
and warrants to Seller that Purchaser has not dealt with any broker or
finder in respect to the transaction contemplated by this Agreement
other than Broker. Purchaser hereby agrees to indemnify Seller for any
claim for brokerage commission or finder's fee asserted by a person,
firm or corporation other than Broker claiming to have been engaged by
Purchaser with respect thereto. Seller will pay all commissions due to
Broker with respect to the transactions contemplated by this Agreement
pursuant to separate agreement and hereby agrees to indemnify Purchaser
for any claim for a brokerage commission or finder's fee asserted by
Broker.
12. Condemnation. If, after the Effective Date and prior to the Closing
Date, any material portion of the Property is taken by exercise of the power of
eminent domain, Purchaser may, within 10 days after such taking, elect to (a)
terminate this Agreement, in which event the Xxxxxxx Money Deposit, together
with all interest thereon, shall be returned to Purchaser, all obligations of
the parties under this Agreement shall cease, and this Agreement shall have no
further force and effect, or (b) close the transaction contemplated by this
Agreement as scheduled (except that if the Closing Date is less than 10 days
following such taking, the Closing Date shall be delayed until Purchaser makes
such election), in which event all monies that are paid as a result of such
condemnation prior to the Closing Date shall be paid to Seller and applied to
the Purchase Price to the extent of the Purchase Price at the Closing, and any
monies that are paid as a result of such condemnation after the Closing Date
shall be paid to Purchaser.
13. Notices. Any notice, request, demand, instruction or other document
to be given or served hereunder or under any document or instrument executed
pursuant hereto shall be in
writing and shall be delivered personally or by cable or telex, or sent by a
nationally-recognized overnight delivery service, or sent by United States
registered or certified mail, return receipt requested, postage prepaid and
addressed to the parties at their respective addresses set forth below, and the
same shall be effective upon receipt. A party may change its address for receipt
of notices by service of a notice of such change in accordance herewith. All
notices by cable or telex shall be subsequently confirmed by U.S. certified or
registered mail.
If to Seller: CMD Southwest Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Vice President
with a copy to: CMD Corporation
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
If to Purchaser: MicroAge Computer Centers
0000 Xxxxx XxxxxXxx Xxx
Xxxxx, XX 00000-0000
Attn: Vice President Administration
14. Nomination of Buyer. At any time prior to the Closing Date,
Purchaser may nominate and assign this Agreement or any of its rights hereunder
to any person, partnership, corporation, trust or other entity, in which case
such assignee shall be fully substituted as Purchaser herein. Upon written
assumption by Assignee of this Agreement and all of its obligations contained
herein, such assignment shall relieve Purchaser of further obligations under
this Agreement with the exception of Purchaser's indemnification as defined in
to Section 6 of this Agreement. Such Assignment shall be made by delivering to
Seller and Escrow Agent written instructions signed by Purchaser assigning
Purchaser's interest herein.
15. Entire Agreement, Amendments and Waivers. This Agreement contains
the entire agreement and understanding of the parties in respect to the subject
matter hereof, and the same may not be amended, modified or discharged nor may
any of its terms be waived except by an instrument in writing signed by the
party to be bound thereby.
16. No Third Party Benefits. This Agreement is for the sole and
exclusive benefit of the parties hereto and their respective successors and
assigns, and no third party is intended to or shall have any rights hereunder.
17. Governing Laws. This Agreement shall be governed by and construed
in accordance with the laws of the State of Arizona.
18. Time. Time is of the essence of each and every term of this
Agreement.
19. Interpretation.
(a) The headings and captions herein are inserted for
convenient reference only and the same shall not limit or construe the
paragraphs or sections to which they apply or otherwise affect the
interpretation hereof.
(b) The terms "hereby," "hereof," "hereto," "herein,"
"hereunder" and any similar terms shall refer to this Agreement, and
the term "hereafter" shall mean after, and the term "heretofore" shall
mean before, the Effective Date.
(c) Words of the masculine, feminine or neuter gender
shall mean and include the correlative words of other genders, and
words importing the singular number shall mean and include the plural
number and vice versa.
(d) Words importing persons shall include firms,
associations, partnerships (including limited partnerships), trusts,
corporations and other legal entities, including public bodies, as well
as natural persons.
(e) The terms "include," "including" and similar
terms shall be construed as if followed by the phrase "without being
limited to."
(f) This Agreement and any document or instrument
executed pursuant hereto may be executed in any number of counterparts
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
(g) Whenever under the terms of this Agreement the
time for performance of a covenant or condition falls upon a Saturday,
Sunday or holiday, such time for performance shall be extended to the
next business day. Otherwise all references herein to "days" shall mean
calendar days.
SELLER:
CMD SOUTHWEST INC.,
an Arizona corporation
By:\s\ D. Xxxxx Xxxxxx
------------------------------
D. Xxxxx Xxxxxx
Its: Vice President
Dated: August 8, 1996
---------------------------
PURCHASER:
MICROAGE COMPUTER CENTERS, INC.
By: Xxxx X. Xxxxx
-----------------------------------------
Its: V.P. Human Resources and Administration
----------------------------------------
Dated: August 5, 1996
--------------------------------------
EXHIBIT A
REAL PROPERTY
Lots 29, 30 and 31 and the West 100.0 feet
of Lot 24, except the North 67.49 feet thereof, of BROADWAY
INDUSTRIAL PARK UNIT FOUR, a subdivision recorded in book 210
of Maps, Page 48, records of Maricopa County, Arizona; said
parcel containing an area of 380,929 square feet (+/-) or
8.7449 acres, more or less.
EXHIBIT B
XXXXXXX MONEY ESCROW AGREEMENT
DEED
When recorded, return to:
CMD Corporation
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
SPECIAL WARRANTY DEED
---------------------
For the consideration of Ten Dollars ($10.00) and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, CMD SOUTHWEST, INC., an Arizona corporation ("Grantor"), hereby
conveys to MICROAGE COMPUTER CENTERS, INC., a Delaware corporation ("Grantee"),
the following real property situated in Maricopa County, Arizona, together with
all rights and privileges appurtenant thereto:
Lots 29, 30 and 31 and the West 100.0 feet
of Lot 24, except the North 67.49 feet thereof, of BROADWAY
INDUSTRAIL PARK UNIT FOUR, a subdivsion recorded in book 210
of Maps, Page 48, records of Maicopa County, Arizona; said
parcel containing an area of 380,929 square feet (+/-) or
8.7449 acres, more or less
SUBJECT only to covenants, conditions and restrictions of record;
private, public and utility easements and roads and highways, if any; special
taxes or assessments for improvements not yet completed; general taxes not yet
due and payable and those matters identified in Exhibit A attached hereto.
TO HAVE AND TO HOLD the same unto Grantee and Grantee's successors and
assigns forever.
SUBJECT to the foregoing, the Grantor hereby binds itself and its
successors to warrant and defend the title against all acts of Grantor and none
other.
Executed by Grantor as of the day of , 1996.
------- -----------------
CMD SOUTHWEST INC.
By:
--------------------------------
Its:
--------------------------------
STATE OF ARIZONA )
) SS:
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me this ______ day of
__________________ , 1996, by __________________________________, the
___________________ of CMD SOUTHWEST INC., an Arizona corporation, on behalf of
the corporation.
--------------------------------
Notary Public
My Commission Expires:
---------------------------
EXHIBIT A
SUBJECT TO:
1. All plans and specifications for any improvement or alteration
to the Property, including, but not limited to, the construction of a
building or an addition to any existing building on the Property,
landscaping, any exterior signs and color schemes for exterior
painting, but specifically excluding any interior improvements or
alterations which do not affect the exterior portions of the buildings
or the parking and landscaping areas on the Property, shall be
submitted to Grantor at 0000 Xxxxxx Xxxxxx; Xxxxx 000, Xxxxxxxxx, XX
00000, or to such other address for Grantor as shown on a duly recorded
notice of change of address, for Grantor's prior written approval,
which approval shall not be unreasonably withheld. Grantor's approval
shall be for the purpose of assuring aesthetic harmony of the proposed
improvements with other improvements, whether proposed or existing,
within the Broadway Business Park, and such approval shall not be a
warranty that the improvements comply with applicable governmental
regulations are structurally sound or are otherwise free from defects.
If Grantor fails to give a written response to submitted plans and
specifications within thirty (30) days after the same have been mailed
or hand-delivered to Grantor at Grantor's address of record as provided
above, the improvement or alterations shall be deemed approved. During
the course of construction of any improvement or alteration, Grantor
shall be entitled to enter upon the Property to inspect the improvement
or alteration in order to insure compliance by Grantee with the terms
of these Restrictions. Notwithstanding anything contained herein to the
contrary, as long as the City of Tempe maintains a Design Review Board
whose purpose is, among other things, to assure the aesthetic harmony
of proposed improvements with other improvements, Grantee shall not be
required to submit plans and specifications for any improvement or
alteration to the property, provided, however, all such improvements or
alterations shall comply with all applicable governmental requirements
including the City of Tempe Design Review Board.
2. Grantee shall maintain the existing landscaping in a neat and
orderly manner and shall keep areas not currently landscaped free of
weeds.
3. No metal-clad buildings or metal-clad alterations, additions
or improvements to existing buildings on the Property shall be
permitted.
4. Outside storage of all goods, waste products and other
materials of any kind whatsoever, shall be substantially screened from
street view by a concrete block wall, which shall be stuccoed and
painted to match the existing building.
5. These restrictions shall be deemed covenants running with the
land and are binding on Grantee and Grantee's successors and assigns
for the benefit of Grantor's property located within the Broadway
Business Park. These Restrictions shall be deemed
terminated and forever thereafter of no force or effect whatsoever
fifty (50) years following the date of recordation of this Deed, or at
such time as Grantor no longer owns any property within the Broadway
Business Park, whichever first occurs.
6. Grantor shall be entitled to enforce these Restrictions by
appropriate court proceeding, including the seeking and obtaining of
injunctive relief. Grantee agrees to pay all costs of enforcement,
including reasonable attorneys' fees.
7. Grantor shall have the right, but not the obligation, to take
such action as may be necessary to secure compliance with or to correct
non-compliance with the terms of these Restrictions, and any amounts
expended by Grantor in connection therewith shall be repaid to Grantor
by Grantee immediately upon demand therefor, together with interest
thereon from the date of expenditure by Grantor until paid at a rate
equal to 2 percentage points added to the prime interest rate as
published by the Wall Street Journal, as it varies from time to time.
In the event that The Wall Street Journal ceases either to exist or
announce a prime interest rate, the aforementioned interest shall be
calculated by adding 2 percentage points to the prime interest rate of
the lending institution in Maricopa County, Arizona that, at the time
such calculation is made, has the greatest asset value.
8. Notwithstanding anything contained herein to the contrary,
prior to exercising any of Grantor's rights to enforce any of these
Restrictions or to secure Grantee's compliance with or to correct
non-compliance with the terms of these Restrictions, Grantor shall send
to Grantee at the Property a written notice informing Grantee of the
breach of these Restrictions and permitting Grantee a sixty day period
in which to cure such breach (or if such breach cannot be cured within
said sixty day period despite Grantee's diligent and continuous efforts
to do so, said sixty day period shall be extended for so long as
Grantee is diligently and continuously pursuing such cure but in no
event longer than an additional sixty days).
