Molina Medicaid Solutions - DHHR

exv10w27and the Closing.9.3 Seller Default. If, at the Closing, (i) Seller is in default of any of its obligations hereunder, or (ii) any of Seller’s representations orwarranties set forth in Section 11.1 are untrue, inaccurate or incorrect when given, in any material respect, or (iii) the Closing otherwise fails tooccur by reason of Seller’s failure or refusal to perform its obligations hereunder in a prompt and timely manner, and any such circumstancedescribed in any of clauses (i), (ii) or (iii) continues for five (5) business days after written notice from Buyer to Seller, which written notice shalldetail such default, untruth or failure, as applicable, then Buyer shall have the right, to elect, as its sole and exclusive remedy, to (a) terminate thisAgreement by written notice to Seller, promptly after which (A) the Deposit and all interest earned thereon shall be returned to Buyer, and(B) Seller shall pay to Buyer any title, escrow, legal and inspection fees incurred by Buyer and any other expenses incurred by Buyer in connectionwith its review of the Property, and the negotiation, documentation and performance of this Agreement (including, without limitation, the fees andexpenses of environmental and engineering consultants, legal and accounting fees and expenses, and other out-of-pocket third party charges relatedto the transactions contemplated by this Agreement and their consummation), subject to a cap of $125,000 (collectively, “Buyer’s Costs”), inwhich case, the parties shall have no further rights or obligations hereunder except for obligations which expressly survive the termination of thisAgreement, or (b) waive the condition and proceed to Closing, or (c) seek specific performance- 13 -of this Agreement by Seller. As a condition precedent to Buyer exercising any right it may have to bring an action for specific performancehereunder, Buyer must commence such an action within ninety (90) days after the occurrence of Seller’s default. Buyer agrees that its failure totimely commence such an action for specific performance within such ninety (90) day period shall be deemed a waiver by it of its right tocommence an action for specific performance as well as a waiver by it of any right it may have to file or record a notice of lis pendens or notice ofpendency of action or similar notice against any portion of the Property. Notwithstanding the foregoing, if by Seller’s affirmative acts the remedy ofspecific performance has been rendered unavailable to Buyer, Buyer shall have and may assert against Seller as a result of Seller’s default underthis Agreement, any and all rights available at law and in equity, without imposition of the limitations in this Agreement on Buyer’s rights,remedies or damages.10. Closing.10.1 Closing Date. The consummation of the purchase and sale of the Property (the “Closing”) shall be held at the offices of the Title Company(or at such other location as the parties may agree) on January 19, 2011 (the “Closing Date”). Buyer acknowledges that Seller is required todefease the existing securitized loan that is currently secured by a deed of trust on the Property (the “Existing Loan”) in order to deliver title to theProperty free and clear of the lien of such deed of trust (the “Existing Deed of Trust”). In connection with such defeasance, Buyer agrees tocooperate in good faith with all usual and customary requirements imposed by the master loan servicer, bond trustee and ratings agency for suchdefeasance transaction so long as Buyer is not required to incur any additional liability or expense in so doing. The parties acknowledge that, inlight of the defeasance, the Grant Deed (as defined below) will be recorded, and the Seller’s proceeds will be disbursed, one day after the ClosingDate. Seller may extend the Closing Date by up to three (3) business days to accommodate such defeasance. Seller shall be solely responsible forany and all costs, fees and expenses in connection with such defeasance, and any yield maintenance or other premiums or payments required inconnection with such defeasance. The defeasance of the Existing Loan shall not be a condition to Seller’s obligation to close the Escrow.10.2 Seller’s Deposits Into Escrow. Seller shall deposit the following documents and items into escrow at least one (1) business day prior to theClosing Date:(a) a duly executed and acknowledged grant deed conveying the Property and Improvements to Buyer in the form of the attached Exhibit F,together with a separate transfer tax affidavit (the “Grant Deed”);(b) a duly executed bill of sale and general assignment, in the form of the attached Exhibit G (the “Assignment”), transferring the PersonalProperty, Leases, Service Contracts, Approvals, Warranties and Intangible Property to Buyer;(c) an affidavit in the form of the attached Exhibit H stating that Seller is not a “foreign person” under IRC Section 1445(f)(3);- 14 -(d) tenant notice letters for all tenants at the Property informing them of the sale of the Property and assignment of the Leases to Buyer, in theform of attached Exhibit I;(e) a duly executed affidavit in the form required by the California Franchise Tax Board certifying that no withholding of any amount of thePurchase Price is required in connection with the Closing;http://sec.gov/Archives/edgar/data/1179929/000095012311023069/a58840exv10w27.htm[1/6/2012 11:09:22 AM]