exv10w1



 




EXECUTION COPY




ASSET PURCHASE AGREEMENT




between




RESIDENTIAL FUNDING COMPANY, LLC,




EQUITY INVESTMENTS II, LLC




and




GMAC COMMERCIAL FINANCE LLC




August 27, 2007











 




TABLE OF CONTENTS




	 	 	 	 	 	 
	 	 	Page	
	 	 	 	
	
    
    ARTICLE 1. DEFINITIONS; INTERPRETATION

    	 	 	A-1	 
	 	
    
    1.1     Definitions

    	 	 	A-1	 
	 	
    
    1.2     Interpretation

    	 	 	A-5	 
	 
	
    
    ARTICLE 2. PURCHASE AND SALE

    	 	 	A-6	 
	 	
    
    2.1     Purchase and Sale of
    Transferred Assets

    	 	 	A-6	 
	 	
    
    2.2     Assignment of Contracts, Leases
    and Other Assets

    	 	 	A-7	 
	 	
    
    2.3     Excluded Assets

    	 	 	A-7	 
	 	
    
    2.4     Assumed Obligations

    	 	 	A-7	 
	 	
    
    2.5     Excluded Obligations

    	 	 	A-8	 
	 	
    
    2.6     Purchase Price

    	 	 	A-8	 
	 	
    
    2.7     Closing

    	 	 	A-9	 
	 	
    
    2.8     Deliveries of Sellers

    	 	 	A-10	 
	 	
    
    2.9     Deliveries of Purchaser

    	 	 	A-10	 
	 
	
    
    ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF SELLERS

    	 	 	A-10	 
	 	
    
    3.1     Authority of Sellers

    	 	 	A-10	 
	 	
    
    3.2     Title to Assets

    	 	 	A-10	 
	 	
    
    3.3     Consents and Approvals

    	 	 	A-11	 
	 	
    
    3.4     Financial Statements

    	 	 	A-11	 
	 	
    
    3.5     No Material Adverse Change

    	 	 	A-11	 
	 	
    
    3.6     Tax Matters

    	 	 	A-11	 
	 	
    
    3.7     Litigation

    	 	 	A-11	 
	 	
    
    3.8     Contracts

    	 	 	A-11	 
	 	
    
    3.9     Financing Agreements

    	 	 	A-12	 
	 	
    
    3.10   Compliance with Laws

    	 	 	A-12	 
	 	
    
    3.11   Sufficiency of Transferred Assets

    	 	 	A-13	 
	 	
    
    3.12   Real Property

    	 	 	A-13	 
	 	
    
    3.13   Environmental Matters

    	 	 	A-13	 
	 	
    
    3.14   Receivables and Receivables Documents

    	 	 	A-13	 
	 	
    
    3.15   Bank Accounts

    	 	 	A-14	 
	 	
    
    3.16   Insurance

    	 	 	A-14	 
	 	
    
    3.17   Employee Benefits

    	 	 	A-14	 
	 	
    
    3.18   Licenses and Permits

    	 	 	A-14	 
	 	
    
    3.19   Intellectual Property

    	 	 	A-15	 
	 	
    
    3.20   Labor

    	 	 	A-16	 
	 	
    
    3.21   Brokers or Finders

    	 	 	A-16	 
	 
	
    
    ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF PURCHASER

    	 	 	A-16	 
	 	
    
    4.1     Authority of Purchaser

    	 	 	A-16	 
	 	
    
    4.2     Consents and Approvals

    	 	 	A-16	 
	 	
    
    4.3     Financing

    	 	 	A-16	 
	 	
    
    4.4     Brokers and Finders

    	 	 	A-16	 




A-i







 




	 	 	 	 	 	 
	 	 	Page	
	 	 	 	
	
    
    ARTICLE 5. COVENANTS

    	 	 	A-16	 
	 	
    
    5.1     Subsequent Actions

    	 	 	A-16	 
	 	
    
    5.2     Third Party Consents

    	 	 	A-17	 
	 	
    
    5.3     Employee Matters

    	 	 	A-17	 
	 	
    
    5.4     Records; Post-Closing Access to
    Information

    	 	 	A-17	 
	 
	
    
    ARTICLE 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER

    	 	 	A-18	 
	 	
    
    6.1     Warranties True as of Closing
    Date

    	 	 	A-18	 
	 	
    
    6.2     Injunctions

    	 	 	A-18	 
	 	
    
    6.3     Laws

    	 	 	A-18	 
	 	
    
    6.4     Deliveries by Sellers

    	 	 	A-18	 
	 
	
    
    ARTICLE 7. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLERS

    	 	 	A-18	 
	 	
    
    7.1     Warranties True as of Closing
    Date

    	 	 	A-18	 
	 	
    
    7.2     Compliance with Agreements and
    Covenants

    	 	 	A-18	 
	 	
    
    7.3     Injunctions

    	 	 	A-19	 
	 	
    
    7.4     Laws

    	 	 	A-19	 
	 	
    
    7.5     Deliveries by Purchaser

    	 	 	A-19	 
	 
	
    
    ARTICLE 8. [RESERVED]

    	 	 	A-19	 
	 
	
    
    ARTICLE 9. SURVIVAL AND INDEMNIFICATION

    	 	 	A-19	 
	 	
    
    9.1     Survival

    	 	 	A-19	 
	 	
    
    9.2     Indemnification by RFC

    	 	 	A-19	 
	 	
    
    9.3     Indemnification by Purchaser

    	 	 	A-20	 
	 	
    
    9.4     Limitations on Liability

    	 	 	A-20	 
	 	
    
    9.5     Claims

    	 	 	A-21	 
	 	
    
    9.6     Notice of Third Party Claims;
    Assumption of Defense

    	 	 	A-21	 
	 	
    
    9.7     Settlement or Compromise

    	 	 	A-22	 
	 	
    
    9.8     Net Losses; Subrogation;
    Mitigation

    	 	 	A-22	 
	 	
    
    9.9     Special Rule for Fraud

    	 	 	A-22	 
	 
	
    
    ARTICLE 10. TAX MATTERS

    	 	 	A-23	 
	 	
    
    10.1   Transfer Taxes

    	 	 	A-23	 
	 	
    
    10.2   Liability for Taxes and Related Matters

    	 	 	A-23	 
	 	
    
    10.3   Tax Benefits

    	 	 	A-23	 
	 	
    
    10.4   Allocation of Purchase Price

    	 	 	A-24	 
	 
	
    
    ARTICLE 11. MISCELLANEOUS

    	 	 	A-24	 
	 	
    
    11.1   Expenses

    	 	 	A-24	 
	 	
    
    11.2   Amendment

    	 	 	A-24	 
	 	
    
    11.3   Notices

    	 	 	A-24	 
	 	
    
    11.4   Waivers

    	 	 	A-25	 
	 	
    
    11.5   Counterparts

    	 	 	A-25	 
	 	
    
    11.6   Headings

    	 	 	A-25	 
	 	
    
    11.7   Applicable Law

    	 	 	A-25	 
	 	
    
    11.8   Assignment

    	 	 	A-25	 
	 	
    
    11.9   No Third Party Beneficiaries

    	 	 	A-25	 




A-ii







 




	 	 	 	 	 
	 	 	Page	
	 	 	 	
	
    
    11.10  Waiver of Jury Trial

    	 	 	A-25	 
	
    
    11.11  Schedules

    	 	 	A-25	 
	
    
    11.12  Incorporation

    	 	 	A-26	 
	
    
    11.13  Complete Agreement

    	 	 	A-26	 
	
    
    11.14  Disclaimer

    	 	 	A-26	 
	
    
    11.15  Public Announcements

    	 	 	A-26	 
	
    
    11.16  Further Assurances

    	 	 	A-26	 




A-iii






 




Exhibits




	 	 	 
	
    
    Exhibit A

    	 	
    Assignment and Assumption Agreement
	
    
    Exhibit B

    	 	
    Bill of Sale
	
    
    Exhibit C

    	 	
    Transition Services Agreement
	
    
    Exhibit D

    	 	
    Employee Leasing Agreement





Schedules




	 	 	 
	
    
    Schedule 1.1

    	 	
    Sellers’ Knowledge
	
    
    Schedule 2.1(e)

    	 	
    Equipment
	
    
    Schedule 2.1(h)

    	 	
    Financing Agreements and Receivables Documents
	
    
    Schedule 2.2(a)

    	 	
    Real Property Leases
	
    
    Schedule 2.2(c)

    	 	
    Other Transferred Contracts
	
    
    Schedule 2.2(d)

    	 	
    Permits
	
    
    Schedule 2.2(e)

    	 	
    Commitments
	
    
    Schedule 2.3

    	 	
    Excluded Assets
	
    
    Schedule 2.4

    	 	
    Assumed Obligations
	
    
    Schedule 3.2

    	 	
    Title
	
    
    Schedule 3.4

    	 	
    Financial Statements
	
    
    Schedule 3.5

    	 	
    Material Adverse Change
	
    
    Schedule 3.7

    	 	
    Litigation and Other Disputes
	
    
    Schedule 3.9

    	 	
    Financing Agreements
	
    
    Schedule 3.10

    	 	
    Compliance with Laws
	
    
    Schedule 3.11

    	 	
    Sufficiency of Assets
	
    
    Schedule 3.14

    	 	
    Receivables
	
    
    Schedule 3.15

    	 	
    Bank Accounts
	
    
    Schedule 3.16

    	 	
    Insurance
	
    
    Schedule 3.18

    	 	
    Licenses and Permits
	
    
    Schedule 3.19(a)

    	 	
    Transferred IT Assets
	
    
    Schedule 3.19(b)

    	 	
    Transferred Intellectual Property
	
    
    Schedule 3.19(c)

    	 	
    Ownership of Transferred Intellectual Property
	
    
    Schedule 3.19(d)

    	 	
    Development of IT Assets




A-iv







 




ASSET PURCHASE AGREEMENT



     
This ASSET PURCHASE AGREEMENT is entered into on the 27th day of
August, 2007 between Residential Funding Company, LLC, a
Delaware limited liability company (“RFC”),
Equity Investments II, LLC, a Delaware limited liability company
(“Equity Investments” and, together with RFC,
“Sellers”), and GMAC Commercial Finance LLC, a
Delaware limited liability company
(“Purchaser”).



     
WHEREAS, each Seller and Purchaser is a direct or indirect
wholly owned subsidiary of GMAC LLC, a Delaware limited
liability company (“GMAC”);



     
WHEREAS, Sellers own all of the assets and liabilities of
GMAC’s health care finance business (including the related
loan origination and servicing platform), which provides debt
capital to health care providers primarily in the health care
services sector (the “Business”);



     
WHEREAS, each Seller desires to sell, assign and transfer to
Purchaser, and Purchaser desires to purchase and take assignment
and delivery from Sellers, substantially all of the assets used
in the Business, and each Seller desires to assign to Purchaser,
and Purchaser desires to assume from Sellers, certain of the
liabilities related to the Business;



     
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, Sellers and Purchaser agree as
follows:




ARTICLE 1.




Definitions; Interpretation



     
1.1     Definitions. The
following terms shall have the following meanings for the
purposes of this Agreement:






		
	 	     
    “Adjustment Report” shall have the meaning set
    forth in Section 2.6(b)(iv).
	 
	 	     
    “Advances” means any loan or extension of
    credit to or for the benefit of a Borrower under a Financing
    Agreement.
	 
	 	     
    “Affiliate” means any Person controlling,
    controlled by or under common control with another
    “Person”; for purposes of this definition only,
    “control” shall mean the ownership, directly or
    indirectly, of 50% or more of the outstanding common stock or
    other equity interest of a Person.
	 
	 	     
    “Agreement” means this Asset Purchase
    Agreement, including all Appendices, Schedules and Exhibits
    hereto, as it may be amended from time to time in accordance
    with its terms.
	 
	 	     
    “Allocation Schedule” shall have the meaning
    set forth in Section 10.4.
	 
	 	     
    “Assignment and Assumption Agreement” means the
    Assignment and Assumption Agreement between Sellers and
    Purchaser substantially in the form of Exhibit A.
	 
	 	     
    “Assumed Obligations” shall have the meaning
    set forth in Section 2.4.
	 
	 	     
    “Bank Accounts” shall have the meaning set
    forth in Section 2.1(a).
	 
	 	     
    “Basket Amount” shall have the meaning set
    forth in Section 9.4(a).
	 
	 	     
    “Benefit Plan” each “employee benefit
    plan” (as defined in sections 3(3) of ERISA), other than a
    Multiemployer Plan, and each retirement or deferred compensation
    plan, incentive compensation plan, stock plan, retention plan or
    agreement, unemployment compensation plan, vacation pay, change
    in control, severance pay, bonus or benefit arrangement,
    insurance or hospitalization program or any fringe benefit
    arrangements for any employee, director, consultant or agent,
    whether pursuant to contract, arrangement, custom or informal
    understanding which does not constitute an employee benefit
    plan, which is maintained or contributed to by Seller and which
    covers any Employee or in which any Employee participates or is
    eligible to participate.



A-1






 






		
	 	     
    “Bill of Sale” means the Bill of Sale with
    respect to the sale and purchase of the Transferred Assets of
    Sellers substantially in the form of Exhibit B.
	 
	 	     
    “Borrowers” shall have the meaning set forth in
    Section 2.1(h).
	 
	 	     
    “Business” shall have the meaning set forth in
    the recitals.
	 
	 	     
    “Business Day” means any day of the year, other
    than (a) any Saturday or Sunday or (b) any other day
    on which banks located in Minneapolis, Minnesota or New York,
    New York generally are closed for business.
	 
	 	     
    “Closing” means the closing of the transactions
    contemplated hereby.
	 
	 	     
    “Closing Date” shall have the meaning set forth
    in Section 2.7.
	 
	 	     
    “Closing Date Purchase Price” shall have the
    meaning set forth in Section 2.6(a).
	 
	 	     
    “Code” means the Internal Revenue Code of 1986,
    as amended.
	 
	 	     
    “Collateral” shall have the meaning set forth
    in Section 2.1(h).
	 
	 	     
    “Commitments” means the outstanding commitment
    letters and letters of intent relating to prospective borrowers
    under financing agreements as set forth on
    Schedule 2.2(e).
	 
	 	     
    “Consents” shall have the meaning set forth in
    Section 5.2.
	 
	 	     
    “Contracts” means any contract, agreement,
    lease or permit to which a Seller is a party.
	 
	 	     
    “Dispute Firm” shall have the meaning set forth
    in Section 2.6(b)(iii).
	 
	 	     
    “Dispute Notice” shall have the meaning set
    forth in Section 2.6(b)(iii).
	 
	 	     
    “Disputing Party” shall have the meaning set
    forth in Section 2.6(b)(iii).
	 
	 	     
    “Employee Leasing Agreement” means the Employee
    Leasing Agreement substantially in the form of
    Exhibit D.
	 
	 	     
    “Employee Leasing Expiration Date” shall have
    the meaning set forth in Section 5.3.
	 
	 	     
    “Employees” shall mean those individuals who,
    as of the Closing Date, are employees of RFC with respect to the
    Business, whether or not such individual is actively at work on
    the Closing Date, including those individuals who are on
    vacation, short-term disability, disability covered by
    worker’s compensation, or approved leave of absence.
	 
	 	     
    “Equipment” shall have the meaning set forth in
    Section 2.1(e).
	 
	 	     
    “Equity Investments” shall have the meaning set
    forth in the recitals.
	 
	 	     
    “ERISA” means the Employee Retirement Income
    Security Act of 1974, as amended.
	 
	 	     
    “Excluded Obligations” shall have the meaning
    set forth in Section 2.5.
	 
	 	     
    “Final Valuation” shall have the meaning set
    forth in Section 2.6(b)(iv).
	 
	 	     
    “Financial Statements” shall have the meaning
    set forth in Section 3.4.
	 
	 	     
    “Financing Agreements” shall have the meaning
    set forth in Section 2.1(h).
	 
	 	     
    “GAAP” means United: States generally accepted
    accounting principles in effect from time to time.
	 
	 	     
    “GMAC” shall have the meaning set forth in the
    recitals.
	 
	 	     
    “Governmental Authority” means any
    U.S. federal, state, provincial or municipal entity, any
    foreign government and any political subdivision or other
    executive, legislative, administrative, judicial, quasi-judicial
    or other governmental department, commission, court, board,
    bureau, agency or instrumentality, domestic or foreign.



A-2







 






		
	 	     
    “Hazardous Materials” shall have the meaning
    set forth in Section 3.13(d).
	 
	 	     
    “Indemnification Cap” shall have the meaning
    set forth in Section 9.4(b).
	 
	 	     
    “Indemnified Person” means the Person or
    Persons entitled to, or claiming a right to, indemnification
    under Article 9.
	 
	 	     
    “Indemnifying Person” means the Person or
    Persons claimed by the Indemnified Person to be obligated to
    provide indemnification under Article 9.
	 
	 	     
    “Initial Notice” shall have the meaning set
    forth in Section 9.6.
	 
	 	     
    “Intellectual Property” means domestic and
    foreign: (a) registered and unregistered trade names,
    trademarks, service marks, applications for trademarks and
    applications for service marks; (b) patent registrations
    and patent applications; (c) trade secrets; and
    (d) copyrights, claims for copyrights, copyright
    registrations and copyright applications that, in each case, are
    owned by or licensed to a Seller.
	 
	 	     
    “Intercompany Borrowings” means any and all
    liabilities of the Business with respect to intercompany
    borrowings as of the Closing Date.
	 
	 	     
    “Law” means any law, statute, regulation,
    ordinance, rule, order, decree, judgment, consent decree or
    governmental requirement enacted, promulgated, entered into,
    agreed to or imposed by any Governmental Authority.
	 
	 	     
    “Lease Real Property” means the real property
    located in Dallas, Texas that is subject to the Real Property
    Lease.
	 
	 	     
    “Lien” means any title defect, conflicting or
    adverse claim of ownership, mortgage, deed of trust,
    hypothecation, security interest, lien, pledge, claim, right of
    first refusal, option, charge, restrictive covenant, lease,
    order, decree, judgment, stipulation, settlement, attachment,
    objection or other encumbrance of any nature whatsoever.
	 
	 	     
    “Loss” or “Losses” means any
    and all damages, losses, actions, proceedings, causes of action,
    obligations, liabilities, claims, Liens, penalties, fines,
    demands, assessments, awards, judgments, settlements, costs and
    expenses, including (a) court costs and similar costs of
    litigation, (b) reasonable attorneys’ and
    consultants’ fees, including those incurred in connection
    with (i) investigating or attempting to avoid the matter
    giving rise to the Losses or (ii) successfully establishing
    a valid right to indemnification for Losses and
    (c) interest awarded as part of a judgment or settlement,
    if any, but in any event shall exclude consequential, punitive,
    special or incidental damages or lost profits claimed, incurred
    or suffered by any Indemnified Person (which exclusion does not
    include any consequential, punitive, special or incidental
    damages or lost profits for which such Indemnified Person is
    liable to a third party).
	 
	 	     
    “Material Adverse Effect” means any condition,
    circumstance, change or effect, that individually or when taken
    together with all other conditions, circumstances, changes or
    effects is materially adverse to the Business or Transferred
    Assets; provided, that, for purposes of this Agreement, a
    Material Adverse Effect shall not include any condition,
    circumstance, change or effect to the Business, the Parent
    Business or Transferred Assets resulting from (a) changes
    to the industry or markets in which the Business, the Parent
    Business or Transferred Assets are operated that are not unique
    to the Business, the Parent Business or Transferred Assets,
    (b) the announcement or disclosure of the transactions
    contemplated herein, (c) general economic, regulatory or
    political conditions or changes in the countries in which the
    Business, the Parent Business or Transferred Assets are
    operated, (d) military action or acts of terrorism,
    (e) changes in Law, or (f) compliance with the terms
    of this Agreement; and provided, further, that in
    the case of each of clauses (a), (c),
    (d), (e) and (f), the Business, the
    Parent Business or Transferred Assets are not materially
    disproportionately affected by such condition, circumstance,
    change or effect compared to other Persons engaged in the
    conduct of businesses similar to the Business.
	 
	 	     
    “Multiemployer Plan” shall mean any
    “multiemployer plan,” as defined III
    section 4001(a)(3) of ERISA.



A-3






 






		
	 	     
    “Notes Receivable” shall have the meaning set
    forth in Section 2.1(h).
	 
	 	     
    “Other Current Assets” shall have the meaning
    set forth in Section 2.1(g).
	 
	 	     
    “Other Transferred Contracts” shall have the
    meaning set forth in Section 2.2(c).
	 
	 	     
    “Parent Business” means the businesses of RFC
    and its parent, ResCap, taken as a whole.
	 
	 	     
    “Payor” means the payor, obligor or other
    Persons obligated to make payments with respect to any
    Receivable, including any seller, transferor or guarantor
    thereof.
	 
	 	     
    “Permits” shall have the meaning set forth in
    Section 2.2(d).
	 
	 	     
    “Permitted Liens” means: (a) Liens arising
    by operation of Law for Taxes not yet due and payable;
    (b) Liens arising under the Financing Agreements; and
    (d) Liens that would not reasonably be expected to have a
    Material Adverse Effect or to adversely affect or impair the
    value of the Business or the Transferred Assets or the use of
    the Transferred Assets in the ordinary course of business.
	 
	 	     
    “Person” means any individual, corporation,
    partnership, association, limited liability company, trust,
    governmental or quasi-governmental authority or body or other
    entity or organization in any jurisdiction.
	 
	 	     
    “Purchase Price” shall have the meaning set
    forth in Section 2.6(a).
	 
	 	     
    “Purchaser” shall have the meaning set forth in
    the preamble.
	 
	 	     
    “Purchaser Indemnified Parties” shall have the
    meaning set forth in Section 9.2.
	 
	 	     
    “Real Property Lease” shall have the meaning
    set forth in Section 2.2(a).
	 
	 	     
    “Receivables” means all owned and serviced
    Notes Receivable, loans and other accounts receivable of
    Sellers.
	 
	 	     
    “Receivables Documents” shall have the meaning
    set forth in Section 2.1(h).
	 
	 	     
    “ResCap” means Residential Capital, LLC, a
    Delaware limited liability company that owns all of the
    outstanding common membership interests in RFC.
	 
	 	     
    “RFC” shall have the meaning set forth in the
    recitals.
	 
	 	     
    “Second Adjustment Report” shall have the
    meaning set forth in Section 2.6(b)(iv).
	 
	 	     
    “Second Dispute Notice” shall have the meaning
    set forth in Section 2.6(b)(iv).
	 
	 	     
    “Second Dispute Report” shall have the meaning
    set forth in Section 2.6(b)(iv).
	 
	 	     
    “Second Disputing Party” shall have the meaning
    set forth in Section 2.6(b)(iv).
	 
	 	     
    “Seller Indemnified Parties” shall have the
    meaning set forth in Section 9.3.
	 
	 	     
    “Sellers” shall have the meaning set forth in
    the preamble.
	 
	 	     
    “Sellers’ Knowledge,” or variations
    thereof, means the actual knowledge of the executive officers
    and directors of Sellers set forth on Schedule 1.1.
	 
	 	     
    “Straddle Period” shall have the meaning set
    forth in Section 10.2(b).
	 
	 	     
    “Straddle Period Taxes” shall have the meaning
    set forth in Section 10.2(b).
	 
	 	     
    “Tax” or “Taxes” mean all
    taxes, charges, fees, duties, levies or other assessments,
    including income, gross receipts, capital stock, net proceeds,
    ad valorem, turnover, real, personal and other property
    (tangible and intangible), goods and services, sales, use,
    franchise, excise, value added, stamp, leasing, lease, user,
    transfer, fuel, excess profits, occupational, interest
    equalization, windfall profits, unitary, severance and
    employees’ income withholding, unemployment and Social
    Security taxes, duties, assessments and charges (including the
    recapture of any tax items such as investment tax credits), which



A-4






 


		
	 	
    are imposed by the United States, Canada or any Governmental
    Authority, including any interest, penalties or additions to tax
    related thereto imposed by any Governmental Authority (including
    any interest or penalties with respect to such Taxes).
	 
	 	     
    “Tax Benefit” means (a) the present value
    of any refund, credit or reduction in otherwise required Tax
    payments including any interest payable thereon, less
    (b) the present value of any required Tax payments, which
    present value shall be computed as of the Closing Date or the
    first date on which the right to the refund, credit or other Tax
    reduction, or such Tax payment, arises or is reasonably
    estimated to be actually utilized or paid, whichever is later,
    (i) using the effective Tax rate of the Indemnified Person
    (which, in the case of an Indemnified Person that is a reporting
    company under the Securities Exchange Act of 1934, as amended,
    shall be as reported in its
    Form 10-K filed
    with the Securities and Exchange Commission) for the Tax Period
    with respect to such Tax under applicable Tax laws on such date
    and (ii) using the interest rate on such date imposed on
    corporate deficiencies paid within 30 days of a notice of
    proposed deficiency under the Code or other applicable Tax laws.
    Any Tax Benefit shall be computed net of any directly related
    Tax detriment, including the present value of a reduction in
    depreciation or amortization deductions as a result of an
    adjustment to the Purchase Price. The amount of any Tax
    detriment shall be computed in the same manner in which Tax
    Benefits are otherwise computed pursuant to this definition.
	 
	 	     
    “Tax Period” or “Taxable
    Period” means any period prescribed by any Governmental
    Authority for which a Tax Return is required to be filed or a
    Tax is required to be paid.
	 
	 	     
    “Tax Return” means all returns and reports of
    or with respect to Taxes required to be filed with any
    Governmental Authority or depository.
	 
	 	     
    “Tax Statute of Limitations Date” with respect
    to a particular Tax means the opening of business on the day
    after the expiration of the applicable statute of limitations
    with respect to such Tax, including any extensions thereof made
    with the consent of the applicable Seller (or if such date is
    not a Business Day, the next Business Day).
	 
	 	     
    “Tax Warranty” means a representation or
    warranty in Section 3.6.
	 
	 	     
    “Title and Authorization Warranty” means a
    representation or warranty in Section 3.1,
    3.2 or 4.1 of this Agreement.
	 
	 	     
    “Transaction Documents” means this Agreement,
    each Assignment and Assumption Agreement, each Bill of Sale, the
    Transition Services Agreement, the Employee Leasing Agreement
    and each other agreement, document and certificate executed and
    delivered in connection with this Agreement.
	 
	 	     
    “Transferred Assets” shall have the meaning set
    forth in Section 2.1.
	 
	 	     
    “Transferred Intellectual Property” shall have
    the meaning set forth in Section 2.1(b).
	 
	 	     
    “Transferred IT Assets” shall have the meaning
    set forth in Section 2.1(c).
	 
	 	     
    “Transfer Taxes” shall have the meaning set
    forth in Section 10.1.
	 
	 	     
    “Transition Services Agreement” means the
    Transition Services Agreement substantially in the form of
    Exhibit C.
	 
	 	     
    “Valuation” shall mean the assets set forth in
    Section 2.6(b)(i).
	 
	 	     
    “Valuation Expert” means Houlihan, Lokey,
    Howard & Zukin.
	 
	 	     
    “WARN” means the worker Adjustment and
    Retraining Notification Act of 1988, as amended.




     
1.2     Interpretation.
The headings preceding the text of Articles and Sections
included in this Agreement and the headings to Schedules
attached to this Agreement are for convenience only and shall
not be deemed part of this Agreement or be given any effect in
interpreting this Agreement. The use of the masculine, feminine
or neuter gender or the singular or plural form of words herein
shall not limit any provision of this Agreement. The use of the
terms “including” or “include” shall in all
cases herein mean



A-5







 




“including, without limitation” or “include,
without limitation,” respectively. Reference to any Person
includes such Person’s successors and assigns to the extent
such successors and assigns are permitted by the terms of any
applicable agreement. Reference to a Person in a particular
capacity excludes such Person in any other capacity or
individually. Reference to any agreement (including this
Agreement), document or instrument means such agreement,
document or instrument as amended or modified and in effect from
time to time in accordance with the terms thereof and, if
applicable, the terms hereof. Underscored references to
Articles, Sections, paragraphs, clauses, Exhibits or Schedules
shall refer to those portions of this Agreement. The use of the
terms “hereunder,” “hereby,”
“hereof,” “hereto” and words of similar
import shall refer to this Agreement as a whole and not to any
particular Article, Section, paragraph or clause of, or Exhibit
or Schedule to, this Agreement.




ARTICLE 2.




Purchase and Sale



     
2.1     Purchase and Sale of
Transferred Assets. Subject to the terms and conditions
of this Agreement, at the Closing, Sellers shall sell, transfer,
convey, assign and deliver, and, as applicable, shall cause
their Affiliates to sell, transfer, convey, assign and deliver,
to Purchaser, and Purchaser shall purchase, acquire and accept
from Sellers or its Affiliates, as applicable, all of
Sellers’ and each of their Affiliate’s, as applicable,
right, title and interest in and to the business, properties,
assets, rights of whatever kind, whether tangible or intangible,
real, personal or mixed, which are used, held for use or
associated with Sellers’ operation of the Business,
including all of the following assets (the “Transferred
Assets”), in each case free and clear of all Liens,
other than Permitted Liens:






		
	 	     
    (a) all bank accounts, including deposit, escrow and lock
    box accounts, related to the Business, including those accounts
    set forth on Schedule 3.15 (the “Bank
    Accounts”) and all cash and cash equivalents contained
    in the Bank Accounts;
	 
	 	     
    (b) all Intellectual Property owned by a Seller and used
    primarily in connection with or held for use primarily in
    connection with the Business, including such rights to sue and
    recover for past infringement or misappropriation thereof and to
    receive all income, royalties, damages and payments for past and
    future infringements thereof, including those items set forth on
    Schedule 3.19(b) (the “Transferred
    Intellectual Property”);
	 
	 	     
    (c) the information technology assets, systems and networks
    of Sellers that are used or held for use primarily in connection
    with the Business, including those items set forth on
    Schedule 3.19(a) (“Transferred IT
    Assets”);
	 
	 	     
    (d) all office supplies used in connection with the
    Business;
	 
	 	     
    (e) all owned or leased furniture, fixtures, vehicles and
    other tangible personal property owned or leased by Sellers and
    used or held for use in connection with the Business, including
    those items set forth on Schedule 2.1(e)(the
    “Equipment”);
	 
	 	     
    (f) to the extent permitted by Law, all books, records,
    files, invoices, customer lists, supplier lists and other data
    owned, used, held for use or employed by Sellers with respect to
    the Business, including all information with respect to
    Borrowers under the Financing Agreements that is maintained in
    Sellers’ credit files (including financial statements,
    audit reports and due diligence reports);
	 
	 	     
    (g) any and all current assets arising out of or with
    respect to the Business, including prepaid rent, prepaid
    suppliers, advances and other prepaid expenses and deposits
    (“Other Current Assets”);
	 
	 	     
    (h) all legal and equitable right, title and interest of
    Sellers in, to and under the loan and security and credit
    agreements, including all amendments and modifications, by and
    between RFC and any of the borrowers thereunder (the
    “Borrowers”), which agreements are set forth on
    Schedule 2.1(h) (collectively, the
    “Financing Agreements”), all right, title and
    interest in, to and under the Receivables related



A-6







 


		
	 	
    to each of the Financing Agreements, including all promissory
    notes and other instruments executed by the Borrowers to RFC to
    evidence their respective obligations for money loaned to such
    Borrowers by RFC under the Financing Agreements (the
    “Notes Receivable”), all commitments and
    outstanding Advances, all related agency, inter-creditor,
    subordination, bailee and guaranty agreements (the
    “Receivables Documents”). The Receivables
    Documents are also listed on Schedule 2.1(h), and
    include all documents, certificates, filings and agreements
    associated therewith, including all revolving lines of credit,
    term loans, purchase commitments, promissory notes, mortgages
    and deeds of trust, as well as all pledge agreements and other
    security documents, files and all other collateral security
    relating thereto (collectively, the
    “Collateral”);
	 
	 	     
    (i) the warrants to purchase an aggregate of
    37,500 shares of The Schumacher Group of Delaware, Inc.;
	 
	 	     
    (j) all rights and obligations with respect to the equity
    investment made by Equity Investments in SHC Holding,
    Inc.; and
	 
	 	     
    (k) all other assets, properties and rights used or held
    for use primarily in connection with the Business.




     
2.2     Assignment of Contracts,
Leases and Other Assets. On the terms and subject to the
conditions set forth in this Agreement, each Seller will assign
and transfer to the Purchaser (or its designee), effective as of
the Closing Date, all of Sellers’ right, title and interest
in, to and under, and Purchaser (or its Affiliate) will take
assignment of, the following (and all of the following shall be
deemed included in the term “Transferred
Assets” as used herein):






		
	 	     
    (a) all leases, agreements to lease, options to lease and
    licenses of real property, including ground leases, set forth on
    Schedule 2.2(a) (“Real Property
    Leases”);
	 
	 	     
    (b) all Financing Agreements;
	 
	 	     
    (c) the Contracts (other than the Financing Agreements) to
    which any Seller is a party that relate primarily to the conduct
    of the Business, including the Contracts set forth on
    Schedule 2.2(c) (“Other Transferred
    Contracts”);
	 
	 	     
    (d) to the extent permitted by Law, all licenses and
    permits held by Sellers related to the Business or any of the
    Transferred Assets (the “Permits”), including
    those set forth on Schedule 2.2(d);
	 
	 	     
    (e) the Commitments set forth on
    Schedule 2.2(e); and
	 
	 	     
    (f) all non-disclosure, non-competition confidentiality and
    similar obligations owed to any Seller to the extent related to
    the Business.




Anything in this Agreement to the contrary notwithstanding, this
Agreement shall not constitute an assignment or transfer of any
Contract or other Transferred Asset, or any claim or right or
any benefit or obligation thereunder or resulting therefrom, if
an assignment or transfer thereof, without the consent of a
third party thereto or a Governmental Authority, would
constitute a breach or violation thereof or impose any
obligation or liability on a Seller, and if such a consent is
not obtained at or prior to the Closing, which Contract or other
Transferred Asset, claim, right or benefit shall be governed by
Section 5.2.



     
2.3     Excluded Assets.
Notwithstanding the provisions of Section 2.1,
Sellers shall not sell, assign, convey, transfer or deliver to
Purchaser, and Purchaser shall not purchase, acquire or take
assignment or delivery of, the assets or rights of Sellers or
any of their Affiliates set forth on Schedule 2.3,
which assets or rights shall not be included in the term
“Transferred Assets” or any other term defined in
Section 2.1 (the “Excluded Assets”).



     
2.4     Assumed
Obligations. Purchaser shall assume at the Closing, and
shall agree to pay, perform, fulfill and discharge when due all
liabilities and obligations of the Business and the Transferred
Assets relating to any period prior to the Closing that are set
forth on Schedule 2.4, and all liabilities and
obligations, whether



A-7







 




known or unknown, of the Business and the Transferred Assets
relating to the period after the Closing (collectively, the
“Assumed Obligations”).



     
2.5     Excluded
Obligations. Purchaser shall not assume or otherwise
pay, perform, discharge or be liable in respect of any
liability, duty or obligation of the Business and the
Transferred Assets relating to any period prior to the Closing
other than the Assumed Obligations (collectively, the
“Excluded Obligations”), and RFC shall be
solely and exclusively liable with respect to and shall fully
pay, perform and discharge all the Excluded Obligations,
including the following:






		
	 	     
    (a) those litigation matters and other disputes set forth
    on Schedule 3.7;
	 
	 	     
    (b) any Taxes of Sellers other than those Taxes pro-rated
    pursuant to Sections 10.2(b) and 10.3;
	 
	 	     
    (c) the Intercompany Borrowings; and
	 
	 	     
    (d) the Benefit Plans and all rights or liabilities in
    connection with and assets of the Benefit Plans, except as
    otherwise provided in the Employee Leasing Agreement.



     
2.6     Purchase Price.



     
(a) Consideration. On the terms and subject to the
conditions of this Agreement, in consideration for the aforesaid
sale, conveyance, assignment, transfer and delivery of the
Transferred Assets and the assignment and assumption of the
Assumed Obligations, the aggregate purchase price shall be an
amount equal to the fair market value of the Business and the
Transferred Assets as determined pursuant to
Section 2.6(b) (the “Purchase
Price”); provided, however, that in no
event shall the Purchase Price be less than $775,000,000. At the
Closing, Purchaser shall pay Sellers an amount equal to
$775,000,000, less amounts previously deposited by or on behalf
of Purchaser (the “Closing Date Purchase
Price”). After the Closing, Purchaser shall make such
additional payments of the Purchase Price, if any, as set forth
in Section 2.6(b).



     
(b) Transferred Assets Adjustment. The Purchase
Price shall the fair market value of the Business and the
Transferred Assets as of the close of business on the day prior
to the Closing Date, as determined in accordance with the
procedures set forth in this Section 2.6(b).






		
	 	     
    (i) Post-Closing Determination. Within 30
    calendar days following the Closing Date, ResCap and RFC shall
    cause the Valuation Expert (or another mutually agreed-upon
    independent valuation firm retained and paid for by ResCap) to
    perform an independent valuation (the
    “Valuation”) of the fair market value of the
    Business and the Transferred Assets as of the close of business
    on the day prior to the Closing Date and to deliver such
    Valuation to ResCap, RFC and Purchaser, together with detailed
    supporting calculations and assumptions used by the Valuation
    Expert in performing the Valuation.
	 
	 	     
    (ii) Payment. If the Valuation provides that
    the fair market value of the Business and the Transferred Assets
    is greater than $775,000,000, then Purchaser shall pay such
    difference to RFC within two Business Days after the Valuation
    becomes binding as provided in Section 2.6(b)(iii)
    or (iv). All payments pursuant to this
    Section 2.6 shall include interest on any such
    payment from the Closing Date to the date paid at the
    “Prime Rate” as published in the “Money
    Rates” table in The Wall Street Journal on the
    Closing Date or, if no publication occurs on the Closing Date,
    on the first publication date following the Closing Date.
	 
	 	     
    (iii) Objections; Determination Binding.
    Unless Purchaser, on the one hand, or RFC and ResCap, on the
    other hand, gives written notice (the “Disputing
    Party”) to the other party of an objection to all or a
    part of the Valuation (a “Dispute Notice”)
    within 15 days after their receipt of the Valuation, the
    Valuation shall become binding in its entirety at the end of
    such 15-day period. If a Disputing Party delivers a Dispute
    Notice within such 15-day period and the parties are unable to
    agree as to all issues in the Dispute Notice within 15 days
    after the Dispute Notice is delivered by the Disputing Party,
    then the Valuation shall be submitted to an independent
    valuation firm (other than the Valuation Expert) chosen by the
    Disputing Party (the “Dispute Firm”) to resolve
    the issues set forth in the Dispute Notice in accordance with
    Section 2.6(b)(iv). The Disputing Party shall bear
    the costs of the Dispute Firm.



A-8







 






		
	 	     
    (iv) Dispute Resolution. The Dispute Firm
    shall conduct such review of the Valuation, the Dispute Notice
    and any supporting documentation as the Dispute Firm in its sole
    discretion deems necessary (but excluding any documentation
    created by the parties in attempting to resolve any disputes
    relating to this Section 2.6(b)), and the Dispute
    Firm shall hear such presentations by the parties as the Dispute
    Firm in its sole discretion deems necessary, if any. The Dispute
    Firm shall be provided full access to the books and records of
    Sellers and Purchaser as well as the audit work papers of the
    Valuation Expert related to such determination. The Dispute Finn
    shall, as promptly as practicable and in no event later than
    30 days following its receipt of the Dispute Notice,
    deliver to Purchaser, ResCap and RFC a report (the
    “Adjustment Report”), which shall set forth, in
    reasonable detail, the Dispute Firm’s determination with
    respect to the issues specified in the Dispute Notice, and the
    revisions, if any, to be made to the Valuation together with
    supporting calculations. If the difference between the Valuation
    and the valuation of the Business and the Transferred Assets in
    the Adjustment Report is not greater than 10% of the Valuation,
    the Valuation shall be final and binding on the parties, absent
    arithmetical error, and shall be deemed a final arbitration
    award that is enforceable against each of the parties in any
    court of competent jurisdiction and the Purchase Price shall be
    adjusted according to the Valuation and paid in accordance with
    Section 2.6(b)(ii). If the difference between the
    Valuation and the valuation of the Business and the Transferred
    Assets in the Adjustment Report is greater than 10% of the
    Valuation, unless Purchaser, on the one hand, or RFC and ResCap,
    on the other hand, gives written notice (the “Second
    Disputing Party”) to the other party of an objection to
    all or a part of the Adjustment Report (a “Second
    Dispute Notice”) within 15 days after their
    receipt of the Adjustment Report, the Adjustment Report shall
    become binding in its entirety at the end of such 15-day period.
    If a Second Disputing Party delivers a Second Dispute Notice
    within such 15-day period and the parties are unable to agree as
    to all issues in the Adjustment Report within 15 days after
    the Second Dispute Notice is delivered by the Second Disputing
    Party, then the Valuation and the valuation in the Adjustment
    Report shall be submitted to an independent valuation firm
    (other than the Valuation Expert or the Dispute Firm) chosen by
    the Second Disputing Party (the “Second Dispute
    Firm”) to resolve the issues set forth in the Second
    Dispute Notice. The Second Disputing Party shall bear the costs
    of the Second Dispute Firm. The Second Dispute Firm shall
    conduct such review of the Valuation, the Adjustment Report, the
    Second Dispute Notice and any supporting documentation as the
    Second Dispute Firm in its sole discretion deems necessary, and
    the Second Dispute Firm shall hear such presentations by the
    parties as the Second Dispute Firm in its sole discretion deems
    necessary, if any. The Second Dispute Firm shall be provided
    full access to the books and records of Sellers and Purchaser as
    well as the audit work papers of the Valuation Expert and the
    Dispute Firm related to such determination. The Second Dispute
    Firm shall, as promptly as practicable and in no event later
    than 30 days following its receipt of the Second Dispute
    Notice, deliver to Purchaser and Sellers a report (the
    “Second Adjustment Report”), in which the
    Second Dispute Firm shall resolve the disputes set forth in the
    Second Dispute Notice and shall calculate the appropriate
    valuation of the Business and the Transferred Assets. The Second
    Adjustment Report shall set forth, in reasonable detail, the
    Second Dispute Firm’s determination with respect to the
    issues specified in the First Dispute Notice and the Second
    Dispute Notice, and the revisions, if any, to be made to the
    Valuation and the Adjustment Report together with supporting
    calculations. The Second Adjustment Report shall also set forth
    the final and binding valuation of the Business and the
    Transferred Assets (the “Final Valuation”) by
    calculating the average of the valuation of the Business and the
    Transferred Assets contained in the Valuation, the Adjustment
    Report and the Second Adjustment Report. The Final Valuation
    shall be final and binding on the parties, absent arithmetical
    error, and shall be deemed a final arbitration award that is
    enforceable against each of the parties in any court of
    competent jurisdiction and the Purchase Price shall be adjusted
    according to the Final Valuation and paid in accordance with
    Section 2.6(b)(ii).



     
2.7     Closing. The
Closing shall take place at the offices of Mayer, Brown,
Rowe & Maw LLP, 71 South Wacker Drive, Chicago,
Illinois 60606, at 10:00 a.m. central time on
August 27, 2007, or such other place, date and time as is
mutually agreeable to Sellers and Purchaser (the
“Closing Date”).



A-9






 



     
2.8     Deliveries of
Sellers. At the Closing, the applicable Seller shall
deliver to Purchaser:






		
	 	     
    (a) the Transition Services Agreement, duly executed by
    Sellers;
	 
	 	     
    (b) an Assignment and Assumption Agreement, only executed
    by Sellers;
	 
	 	     
    (c) a Bill of Sale, duly executed by Sellers;
	 
	 	     
    (d) the Transferred Assets, by making such Transferred
    Assets available to Purchaser at their present location;
	 
	 	     
    (e) the Employee Leasing Agreement, duly executed by
    Sellers;
	 
	 	     
    (f) all other conveyance documents reasonably requested by
    Purchaser to transfer to Purchaser the Transferred
    Assets; and
	 
	 	     
    (g) any other items to be delivered by Sellers as required
    under the terms and provisions of this Agreement.



     
2.9     Deliveries of
Purchaser. At the Closing, Purchaser shall deliver to
Sellers, as applicable:






		
	 	     
    (a) the Closing Date Purchase Price, in accordance with
    Section 2.6, in immediately available funds by wire
    transfer to an account or accounts that have been designated by
    RFC at least two Business Days prior to the Closing Date;
	 
	 	     
    (b) the Transition Services Agreement, duly executed by
    Purchaser;
	 
	 	     
    (c) an Assignment and Assumption Agreement, duly executed
    by Purchaser;
	 
	 	     
    (d) the Employee Leasing Agreement, duly executed by
    Sellers; and
	 
	 	     
    (e) any other items to be delivered by Purchaser under the
    terms and provisions of this Agreement.




ARTICLE 3.




Representations and Warranties of Sellers



     
Sellers, jointly and severally, represent and warrant to
Purchaser, as of the date hereof, as follows:



     
3.1     Authority of Sellers.
Each Seller is a limited liability company validly existing,
duly organized and in good standing under the laws of the State
of Delaware, and has all requisite limited liability company
power and authority to own, lease and operate its properties and
assets and to carry on its business as now being conducted. Each
Seller has all requisite limited liability company power and
authority to enter into this Agreement and the other Transaction
Documents to which it is a party and to carry out the
transactions contemplated in this Agreement and the other
Transaction Documents to which it is a party. The execution,
delivery and performance by each Seller of this Agreement and
the other Transaction Documents to which it is a party has been
duly authorized by all necessary corporate action. This
Agreement has been, and each other Transaction Document to which
it is a party will be at Closing, duly and validly executed and
delivered by each Seller and this Agreement constitutes, and
each of the other Transaction Documents will constitute, the
legal, valid and binding obligation of each Seller that is a
party thereto, enforceable against each Seller in accordance
with its terms.



     
3.2     Title to Assets.
Except as otherwise set forth herein and except as disclosed in
Schedule 3.2, each Seller, as applicable, has good
and marketable title to, and is the sole and lawful owner of,
all of the Transferred Assets, free and clear of any Lien other
than Permitted Liens. Except as set forth on
Schedule 3.2 and subject to obtaining all applicable
consents and approvals and Section 5.2 hereof,
(a) each Seller, as applicable, has the full right to sell,
convey, transfer, assign and deliver the Transferred Assets to
Purchaser and (b) at the Closing, each Seller, as
applicable, shall convey to Purchaser good and marketable title
to the Transferred Assets, free and clear of any Lien (other
than Permitted Liens).



A-10






 



     
3.3     Consents and
Approvals. No consent of, or declaration, filing or
registration with, any Governmental Authority is required to be
obtained or made, as applicable, by either Seller in connection
with the execution, delivery and performance of this Agreement
and the other Transaction Documents, or the consummation of the
transactions contemplated by this Agreement or by any other
Transaction Document, except for consents, declarations, filings
and registrations the failure to have which, individually or in
the aggregate, would not reasonably be expected to have a
Material Adverse Effect.



     
3.4     Financial
Statements. Schedule 3.4 sets forth the
unaudited balance sheet and statement of income of the Business
as of August 26, 2007 (collectively, the “Financial
Statements”). The Financial Statements were prepared
from the books and records of RFC. The Financial Statements,
subject to normal year-end adjustments and the absence of notes,
fairly present in all material respects the financial condition
and the results of operations of the Business as of the date of
and for the period referred to in such Financial Statements.



     
3.5     No Material Adverse
Change. Except as set forth on
Schedule 3.5, since December 31, 2006 there has
not occurred any change in the Business that had, or could
reasonably be expected to have, a Material Adverse Effect.



     
3.6     Tax
Matters. All Tax Returns with respect to the
Transferred Assets that are required to be filed by RFC before
the Closing Date, have been or will be timely filed. The
information provided on such Tax Returns is or will be complete
and accurate in all material respects, and all Taxes shown to be
due on such Tax Returns have been or will be timely paid in full
(except to the extent that a failure to file such Tax Returns or
pay such Taxes, or an inaccuracy in such Tax Returns would not
result in Purchaser being liable for such Taxes nor give rise to
a Lien on the Transferred Assets).



     
3.7     Litigation.
Except as set forth on Schedule 3.7, there is no
demand, claim, suit, action, arbitration or legal,
administrative or other proceeding pending or, to Sellers’
Knowledge, threatened against RFC or any of its Affiliates,
officers, directors or employees and relating to the Business,
the Transferred Assets or the Assumed Obligations.



     
3.8     Contracts.
Schedule 2.2(c) sets forth a true, accurate and
complete list of all Other Transferred Contracts (other than the
Financing Agreements) of the following types to which RFC is a
party or by which it is bound with respect to the Business, or
to which any of the Transferred Assets is subject:






		
	 	     
    (a) any lease (whether of real or personal property)
    (A) providing for annual rentals of $100,000 or more,
    (B) which has a term that will extend for more than
    12 months after Closing or (C) that is not cancellable
    without cost on 90 days’ or less notice by a Seller;
	 
	 	     
    (b) any Contract for the purchase of materials, supplies,
    goods, services, equipment or other assets (A)(i) providing for
    annual payments by RFC of $100,000 or more or (ii) with a
    party to which aggregate annual payments are made by RFC of
    $100,000 or more, (B) which has a term that will extend for
    more than 12 months after Closing or (C) that is not
    cancellable without cost on 90 days’ or less notice by
    RFC;
	 
	 	     
    (c) any sales, customer or other similar Contract providing
    for the sale by RFC of materials, supplies, goods, services,
    equipment or other assets (A)(i) that provides for annual
    payments to RFC of $100,000 or more or (ii) with a party to
    which aggregate annual payments are made to RFC of $100,000 or
    more, (B) which has a term that will extend for more than
    12 months after Closing or (C) that is not cancellable
    without cost on 90 days’ or less notice by RFC;
	 
	 	     
    (d) any partnership, joint venture or other similar
    agreement or arrangement;
	 
	 	     
    (e) any agreement relating to the acquisition or
    disposition of any business (whether by merger, sale of stock,
    sale of assets or otherwise);
	 
	 	     
    (f) any option, license, franchising or similar contract;
	 
	 	     
    (g) any agency, dealer, sales representative, marketing,
    distribution or other similar agreement;



A-11







 






		
	 	     
    (h) any Contract (other than the Financing Agreements)
    pursuant to which RFC has made or will make loans or advances,
    or has or will become a guarantor or surety or pledged its
    credit on or otherwise become responsible with respect to any
    undertaking of another (except for the negotiation or collection
    of negotiable instruments in transactions in the ordinary course
    of business);
	 
	 	     
    (i) any power of attorney or agency Contract or arrangement
    with any Person pursuant to which such Person is granted the
    authority to act for or on behalf of RFC or RFC is granted the
    authority to act for or on behalf of any Person;
	 
	 	     
    (j) any Contract which relates to the management, operation
    or governance of RFC;
	 
	 	     
    (k) any other Contract for which the full performance
    thereof may extend beyond three months from the Closing Date;
	 
	 	     
    (l) any Contract containing commitments of suretyship,
    guaranty or indemnification by the Business (except for
    guarantees, warranties and indemnities in connection with the
    sale of goods in the ordinary course of business);
	 
	 	     
    (m) any Contract with any employee, officer or director of
    RFC, or with any stockholder or other Affiliate of RFC;
	 
	 	     
    (n) any commission agreements and exclusive sales
    agreements; and
	 
	 	     
    (o) any other contract, commitment, arrangement or plan
    that is material to RFC or the conduct of the Business.




RFC has delivered to Purchaser true, accurate and complete
copies of each document set forth on
Schedule 2.2(c). Each Contract set forth on
Schedule 2.2(c) is legal, valid, binding,
enforceable and in full force and effect in accordance with its
respective terms. RFC is not nor, to Sellers’ Knowledge, is
any other party, in default, violation or breach in any respect
under any such Contract.



     
3.9     Financing
Agreements. Schedule 3.9 sets forth a true
and complete list of all Financing Agreements, including
(i) the name of each Borrower under the Financing
Agreements (to the extent reasonably practicable), (ii) the
principal amount outstanding and total commitment amount
thereunder and (iii) such other items as reasonably
requested by Purchaser. RFC has underwritten and credit
approved, in accordance in all material respects with its
applicable underwriting and credit policies and procedures
(which policies and procedures are contained in the Health
Capital Resource Guide), all transactions that are represented
by the Financing Agreements. Except as set forth on
Schedule 3.9, to Sellers’ Knowledge, there is
no contest, claim, dispute or right of set-off under any
Financing Agreement, nor has RFC taken any action that could
reasonably be expected to give rise to a contest, claim, dispute
or right of set-off under and Financing Agreement. Except as set
forth on Schedule 3.9:






		
	 	     
    (a) Neither RFC nor any of its Affiliates is in breach in
    any respect of any representation or warranty provided under or
    in connection with any of the Financing Agreements;
	 
	 	     
    (b) RFC and its Affiliates have performed in all material
    respects all of the obligations required to be performed by such
    entity under or in connection with the Financing Agreements;
	 
	 	     
    (c) The Financing Agreements constitute the legal, valid
    and binding obligation of the parties thereto, enforceable in
    accordance with their terms; and
	 
	 	     
    (d) To Sellers’ Knowledge, RFC has not received
    written notice that any party to a Financing Agreement disputes
    Sections 3.9(a)-(c).



     
3.10     Compliance with
Laws. Except as set forth on Schedule 3.10,
RFC is, in all material respects, in compliance with all
applicable Laws applicable to the Business, and RFC is not in
default with respect to any judgment, order, injunction,
settlement agreement or decree of any Governmental Authority (it
being understood that the representation contained in this
Section 3.10 shall not apply to Tax matters, as the
sole and exclusive representations and warranties with respect
to Tax matters are set forth in Section 3.6).



A-12







 



     
3.11     Sufficiency of
Transferred Assets. Except as set forth on
Schedule 3.11, the Transferred Assets, whether real
or personal, tangible or intangible, (a) comprise all of
the assets, properties and rights that are necessary to conduct
the Business as it is currently conducted consistent with past
practice and (b) comprise all of the assets, properties and
rights that are currently used by RFC and its Affiliates to
conduct the Business.



     
3.12     Real
Property. RFC does not own any real property that
is used in the conduct of the Business. RFC has delivered true,
correct and complete copies of all Real Property Leases, and any
amendments, supplements, schedules or exhibits thereto.



     
3.13     Environmental
Matters. To Sellers’ Knowledge:






		
	 	     
    (a) No Hazardous Materials (as defined in clause (d)
    below) have been used, stored or otherwise handled in any manner
    on, under, in, from or affecting the Leased Real Property, and
    no Hazardous Materials have at any time been released into,
    stored or deposited over, upon or below the Leased Real Property.
	 
	 	     
    (b) RFC has not received any notice of any violations (nor
    are they aware of any existing violations) of any applicable
    laws governing the use, storage, treatment, transportation,
    manufacture, refinement, handling, production or disposal of
    Hazardous Materials on, under, in, from or affecting the Leased
    Real Property and there are no legal actions or proceedings
    pending or threatened by any person with respect to any such
    violations.
	 
	 	     
    (c) The Leased Real Property is currently being, and as in
    the past been, operated by RFC in all material respects in
    accordance with, and in all material respects in compliance
    with, all applicable Environmental Laws.
	 
	 	     
    (d) “Hazardous Materials” are any
    hazardous materials, hazardous wastes, hazardous constituents,
    hazardous or toxic substances or petroleum products (including
    gasoline, crude oil or any fraction thereof), defined or
    regulated as such in or under any Environmental Law, including,
    without limitation, asbestos, polychlorinated biphenyls and urea
    formaldehyde insulation. “Environmental Laws”
    are any and all federal, state, local or municipal laws, rules,
    orders, regulations, statutes, ordinances, codes, decrees,
    requirements of any governmental authority or other requirements
    of law (including common law) regulating, relating to or
    imposing liability or standards of conduct concerning protection
    of human health or the environment.



     
3.14     Receivables and
Receivables Documents.



     
(a) The Receivables represent legal, valid and binding
obligations arising from financing transactions actually made in
the ordinary course of the Business. No Receivable or
Receivables Document contravenes any Law applicable thereto, and
neither RFC nor, to Sellers’ Knowledge, any other party to
any such Receivables Document is in violation in any material
respect with any Law applicable thereto. Except as set forth on
Schedule 3.14, the Receivables are current and the
amounts due and payable thereunder are not delinquent or past
due in accordance with the terms of the applicable Financing
Agreement. Schedule 3.14 sets forth a true and
complete list of loan losses, foreclosures, delinquencies and
charge-offs of RFC in connection with the Business since
September 1, 2006. Except as set forth on
Schedule 3.14, to Sellers’ Knowledge, there is
no contest, claim or right of set-off under any Receivable with
any Payor relating to the amount or validity of such
Receivables, nor has RFC taken any action or failed to take any
action that could reasonably be expected to give rise to a
contest, claim or right of set-off under any Receivable. Except
as set forth on Schedule 3.14, RFC has no
Receivables from any Affiliate or from any of its directors,
officers, employees, stockholders or members.



     
(b) Except as set forth on Schedule 3.14, RFC
owns all right, title and interest in and to each Receivable and
has a valid security interest in the Collateral securing or
purporting to secure such Receivable. Each Receivable and
Receivables Document is a valid, binding and legally enforceable
obligation of RFC and, to Sellers’ Knowledge, each other
party thereto. RFC has fulfilled in all material respects its
respective obligations under each Receivable and Receivables
Document.



A-13







 



     
(c) Except as set forth on Schedule 3.14, no
Person has a participation in or other right to receive any
payments under any Receivable, and RFC has not taken any action
to convey any right to any Person that would result in such
Person having a right to any payments received with respect to
any Receivable.



     
(d) All material filings and other actions required to be
made, taken or performed by any Person in any jurisdiction to
give RFC a first priority perfected ownership or security
interest in any and all collateral required by the related
Receivables Documents to secure any Receivable (including any
chattel paper or accounts receivables, general intangibles or
instruments underlying any Receivable) have been made, taken or
performed, except that where the failure to have made such
filings or taken such actions would not materially impair the
collectibility of such Receivables.



     
(e) RFC has complied in all material respects with its
established policies and procedures in establishing loan loss
reserves for the Receivables and any other transactions arising
out of the Financing Agreements.



     
3.15     Bank
Accounts. Schedule 3.15 constitutes a
full and complete list of all the Bank Accounts of RFC used in
connection with the Business. Except as set forth on
Schedule 3.15, all cash in such accounts is held in
demand deposits and is not subject to any restriction or
limitation as to withdrawal. The JPMorgan Bank Account of RFC
(Account #: 1099829, Account Name: GMAC RFC Health Capital) is
reconciled on a timely basis, is fully funded and, to
Sellers’ Knowledge, is free from errors.



     
3.16     Insurance.
Schedule 3.16 constitutes a full and complete list
of all policies of insurance to which RFC is a party or is a
beneficiary or named insured relating to the Business. RFC has
in full force and effect, with all premiums due thereon paid,
the policies of insurance set forth therein. No notice of
cancellation or termination has been received with respect to
any insurance policy set forth on Schedule 3.16. RFC
carries insurance covering the Business in amounts and types of
coverage that are adequate and customary in the industry and
against risks and losses that are usually insured against by
persons holding or operating similar properties and similar
businesses to the Business. Except as set forth on
Schedule 3.16, no claims have been asserted by RFC
under any of the insurance policies of RFC or relating to its
properties, assets or operations.



     
3.17     Employee
Benefits.



     
(a) Sellers do not maintain, sponsor nor have any
obligation to contribute to any “employee benefit
plan” (within the meaning of section 3(3) of ERISA) or
any plan which is not an employee benefit plan, with the
exception of the Benefit Plans.



     
(b) All Benefit Plans comply and have been administered in
form and in operation in all material respects with all
applicable requirements of Law and no notice has been issued by
any governmental authority questioning or challenging such
compliance. Each Benefit Plan which is intended to be qualified
under section 401(a) of the Code has received a favorable
determination letter from the IRS. None of the Benefit Plans is
subject to title IV of ERISA.



     
(c) Sellers do not contribute to or have any obligation to
contribute to any Multiemployer Plan with respect to any
Employees.



     
3.18     Licenses and
Permits. Except as set forth on
Schedule 3.18, RFC has obtained, and is in
compliance with, all necessary licenses, permits, consents,
approvals, orders, certificates, authorizations, declarations
and filings (collectively, “Permits,” a
complete list of which is set forth on
Schedule 3.18) required by and all federal, state,
local and other governmental or regulatory authorities and all
courts and other tribunals for the conduct of the Business as
currently conducted. To Sellers’ Knowledge, there are no
proceedings pending or threatened that may result in the
revocation, cancellation or suspension, or any adverse
modification of any such Permits. To Sellers’ Knowledge,
there are no disciplinary actions under any such Permits pending
or threatened, no prior proceeding or disciplinary action has
resulted in adverse action against RFC.



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3.19     Intellectual
Property. To Sellers’ Knowledge:






		
	 	     
    (a) Schedule 3.19(a) sets forth a true and
    complete list of all Transferred IT Assets and
    Schedule 3.19(b) sets forth a true and complete list
    of all Transferred Intellectual Property as of the date hereof.
	 
	 	     
    (b) Except as set forth on Schedule 3.19(b),
    all registrations and applications for the Transferred
    Intellectual Property (including registrations with, filed in or
    issued by, as the case may be, the United States Patent and
    Trademark Office or such other filing offices, domestic or
    foreign) that are owned by RFC and that are used in and are
    material to the conduct of the Business as currently conducted
    are (i) valid, subsisting, in proper form and enforceable,
    and have been duly maintained, including the submission of all
    necessary filings and fees in accordance with the legal and
    administrative requirements of the appropriate jurisdictions,
    and (ii) have not lapsed, expired or been abandoned, and no
    Transferred Intellectual Property or any registration or
    application therefore is the subject of any opposition,
    interference, cancellation proceeding or other legal proceeding
    (including litigation) or governmental proceeding before any
    Governmental Authority in any jurisdiction, or of any
    outstanding Order, judgment, decree or agreement adversely
    affecting the ownership, validity, registrability or
    enforceability of the Intellectual Property of RFC’s use
    thereof or rights thereto.
	 
	 	     
    (c) Except as set forth on Schedule 3.19(c),
    with respect to the Transferred Intellectual Property:
    (i) RFC owns and possesses all right, title and interest in
    and to such Transferred Intellectual Property; (ii) no
    claim by any third party contesting the validity,
    enforceability, use or ownership of any of the Transferred
    Intellectual Property has been made or is threatened;
    (iii) to Sellers’ Knowledge, none of the Transferred
    Intellectual Property is being infringed upon or violated by any
    other person; (iv) RFC has not received any notices of any
    infringement or misappropriation by any third party with respect
    to the Transferred Intellectual Property; and (v) to
    Sellers’ Knowledge, RFC has not infringed, misappropriated
    or otherwise conflicted with any proprietary rights of any third
    parties.
	 
	 	     
    (d) Except as set forth on Schedule 3.19(d),
    each of the Transferred IT Assets used by RFC in the conduct of
    the Business was either: (i) developed by employees of RFC
    within the scope of their employment, or (ii) developed on
    behalf of RFC by a third party, and all ownership rights therein
    have been assigned or otherwise transferred to or vested in RFC,
    as the case may be, pursuant to written agreements; or with
    respect to all software contracts identified as licenses, from
    third parties in Schedule 3.19(a). RFC has obtained
    the right and license to use the third-party programming and
    materials contained in the software programs and the technical
    documentation. RFC has not received any notices of any
    infringement or misappropriation by any third party licensor
    with respect to any Transferred IT Assets. RFC has the legal
    power to convey to Purchaser the Transferred IT Assets under
    this Agreement. RFC shall promptly execute, acknowledge and
    deliver any other assurances or documents or instruments of
    transfer reasonably requested by Purchaser and necessary for the
    transfer or assignment of such Transferred IT Assets to
    Purchaser.
	 
	 	     
    (e) RFC has taken all reasonable measures to protect the
    secrecy, confidentiality and value of all trade secrets required
    for, related to and used in the Business. No employee has any
    patents issued or applications pending for any device, process,
    design or invention of any kind now used or needed by RFC in the
    furtherance of the Business that have not been assigned to RFC.
	 
	 	     
    (f) RFC is not in breach in any material respect of any
    (i) software contract, or (ii) any license, sublicense
    or other agreement relating to the Transferred IT Assets or
    Transferred Intellectual Property, and, except as set forth on
    Schedule 3.19(c), the execution and delivery of this
    Agreement, or the performance of its obligations hereunder will
    not result in the breach of, or give rise to the termination,
    cancellation or acceleration (whether after the filing of notice
    or the lapse of time or both) of any right of RFC under, or a
    loss of any benefit to which RFC is entitled under, or the
    imposition of any obligation under, or a Lien on, any Software
    Contract, or license, sublicense or other agreement relating to
    the Transferred IT Assets or Transferred Intellectual Property.



A-15







 



     
3.20     Labor.



     
(a) There are no labor controversies pending or, to
Sellers’ Knowledge, threatened against RFC that could
reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on the Business.



     
(b) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not
constitute “plant closings” or “mass
layoffs” (each as defined in the WARN Act or otherwise
require notification to employees under WARN.



     
3.21     Brokers or
Finders. Except for the Valuation Expert, RFC has not
incurred, nor will it incur, directly or indirectly, any
liability for brokerage or finders’ fees or agents’
commissions or any similar charges in connection with this
Agreement or the transactions contemplated hereby.




ARTICLE 4.




Representations and Warranties of Purchaser



     
Purchaser represents and warrants to Sellers as follows:



     
4.1     Authority of
Purchaser. Purchaser is a limited liability company
validly existing, duly organized and in good standing under the
laws of Delaware, with all requisite limited liability company
power and authority to own, lease and operate its properties and
to carryon its business as now being conducted. Purchaser has
all requisite limited liability company power to enter into this
Agreement and lo carry out its obligations under this Agreement
and the other Transaction Documents to which it is a party. The
execution, delivery and performance of this Agreement and the
other Transaction Documents to which it is a party by Purchaser
has been duly authorized by all necessary corporate action. This
Agreement and the other Transaction Documents to which it is a
party have been duly and validly executed and delivered by
Purchaser and constitutes the legal, valid and binding
obligation of Purchaser enforceable against Purchaser in
accordance with their terms.



     
4.2     Consents and
Approvals. The execution and delivery of this Agreement
by Purchaser does not, and the consummation of the transactions
contemplated hereby and performance by Purchaser of its
obligations hereunder will not, violate or conflict with any
provision of any material agreement, lease, instrument,
mortgage, license or franchise to which Purchaser is a party or
by which any of its properties is bound or any Law applicable to
Purchaser and which violation or conflict would reasonably be
expected to have a material adverse effect on the financial
condition of Purchaser. The failure of any Person not a party
hereto to authorize or approve this Agreement or the
transactions contemplated hereby will not give any Person a
right to enjoin, rescind or otherwise prevent or impede the
purchase or assumption, as applicable, of the Transferred Assets
or the Assumed Obligations by Purchaser in accordance with the
terms of this Agreement or to obtain damages from, or any other
judicial relief against, any Seller or Purchaser as a result of
any transactions carried out in accordance with the provisions
of this Agreement.



     
4.3     Financing.
Purchaser shall have all necessary financial resources available
to consummate the transactions contemplated hereby.



     
4.4     Brokers and
Finders. Purchaser has not incurred, nor will it incur,
directly or indirectly, any liability for brokerage or
finders’ fees or agents’ commissions or any similar
charges in connection with this Agreement or the transactions
contemplated hereby.




ARTICLE 5.




Covenants



     
5.1     Subsequent
Actions. Each of the parties shall use commercially
reasonable efforts to take, or cause to be taken, all
appropriate action to do, or cause to be done, all things
necessary, proper or advisable under applicable Law or otherwise
to consummate and make effective the transactions contemplated
by this



A-16







 




Agreement as promptly as practicable. If at any time after the
Closing, Purchaser shall consider or be advised that any deeds,
bills of sale, instruments of conveyance, assignments,
assurances or any other actions or things are necessary or
desirable (a) to vest, perfect or confirm ownership (of
record or otherwise) in Purchaser or its Affiliate, as
applicable, its right, title or interest in, to or under any or
all of the Transferred Assets or (b) otherwise to carry out
this Agreement, RFC shall use commercially reasonable efforts to
execute and deliver all deeds, bills of sale, installments of
conveyance, powers of attorney, assignments and assurances and
take and do all such other actions and things as may be
reasonably requested by Purchaser in order to vest, perfect or
confirm any and all right, title and interest in, to and under
such rights, properties or assets in Purchaser or its Affiliate,
as applicable.



     
5.2     Third Party
Consents. RFC shall use commercially reasonable efforts
to obtain and to cooperate with Purchaser in the effort to
obtain, as soon as reasonably practicable, all permits,
authorizations, consents, waivers and approvals (collectively
“Consents”) from third parties or Governmental
Authorities necessary to consummate this Agreement and the
transactions contemplated hereby. This Agreement shall not
operate to assign any Contract, or any claim, right or benefit
arising thereunder or resulting therefrom, if an attempted
assignment thereof, without the Consent of a third party
thereto, would constitute a breach, default or other
contravention thereof or in any way adversely the rights of RFC
or Purchaser thereunder. If a Consent required to assign any
Contract (including a Financing Agreement) is not obtained on or
prior to the Closing Date then, to the extent permitted by Law
(until such time as such Consent is obtained and the assignment
of such Contract to Purchaser is effected to Purchaser’s
reasonable satisfaction): (a) RFC shall use commercially
reasonable efforts, at its sole expense, to (i) provide to
Purchaser the benefits of the applicable Contract,
(ii) cooperate in any reasonable and lawful arrangement
designed to provide the benefits of the applicable Contract to
Purchaser, including entering into subcontracts for performance
and (iii) enforce at the request of Purchaser and for the
account of Purchaser any rights of RFC arising from any such
Contract; and (b) Purchaser shall use its commercially
reasonable efforts to the extent permitted under the applicable
Contract, to provide for the performance of the obligations of
RFC on any reasonable and lawful basis. Until such time as any
required Consent is obtained and the assignment of the
applicable Contract to Purchaser is effected to Purchaser’s
reasonable satisfaction, such Contract shall not be an Assumed
Contract and shall be deemed to be an Excluded Asset.



     
5.3     Employee Matters.
RFC shall continue to employ the Employees after the Closing
Date, and shall make the services of the Employees available to
Purchaser pursuant to the terms of the Employee Leasing
Agreement. Prior to the expiration of the Employee Leasing
Agreement, Purchaser shall offer employment, to be effective
immediately upon the expiration of the Employee Leasing
Agreement (the “Employee Leasing Expiration
Date”), to those Employees who are providing services
to Purchaser under the Employee Leasing Agreement immediately
prior to the Employee Leasing Expiration Date, upon such terms
and conditions as Purchaser and RFC shall mutually agree prior
to the Employee Leasing Expiration Date.



     
5.4     Records: Post-Closing
Access to Information.



     
(a) Purchaser shall preserve and retain, and shall cause
its Affiliates in accordance with the document retention policy
of Purchaser, as amended from time to time, to preserve and
retain, all agreements, documents, books, records and files
(including any documents relating to any governmental or
non-governmental actions, suits, proceedings or investigations)
relating to the Transferred Assets or the Assumed Obligations
prior to the Closing Date.



     
(b) From and after the Closing Date, Purchaser shall, and
shall cause its Affiliates to, afford Sellers and their
respective counsel, accountants and other authorized
representatives, with five Business Days’ prior notice,
reasonable access during normal business hours to the respective
premises, properties, personnel, books and records related to
the Transferred Assets, Assumed Obligations and any other assets
or information that Sellers reasonably deem necessary, including
in connection with the preparation of the Valuation and any
report or Tax Return required to be filed by Sellers under
applicable Law (but so as not to unduly disrupt the normal
course of operations of Purchaser), including preparing or
defending any Tax Return and any interim or annual report or
other accounting statements.



A-17







 



     
(c) If and for so long as any party hereto is contesting or
defending against any third-party charge, complaint, action,
suit, proceeding, hearing, investigation, claim or demand in
connection with (i) any transaction contemplated under this
Agreement or (ii) any fact, situation, circumstance,
status, condition, activity, practice, plan, occurrence, event,
incident, action, failure to act, or transaction on or prior to
the Closing Date involving the Business or Transferred Assets,
each other party hereto shall (x) fully cooperate with it
and its counsel in, and assist it and its counsel with, the
contest or defense, (y) make available its personnel
(including for purposes of fact finding, consultation,
interviews, depositions and, if required, as witnesses) and
(z) provide such information, testimony and access to its
books and records, in each case as shall be reasonably requested
in connection with the contest or defense, all at the sole cost
and expense (not including employee compensation and benefits
costs) of the contesting or defending party (unless the
contesting or defending party is entitled to indemnification
therefore under Article 9). For the avoidance of
doubt, this Section 5.4(c) shall not apply with
respect to disputes between the parties hereto.




ARTICLE 6.




Conditions Precedent to Obligations of Purchaser



     
The obligation of Purchaser to execute this Agreement and
consummate the transactions contemplated hereby is, at the
option of Purchaser, subject to satisfaction of each of the
following conditions precedent on or before the Closing Date:



     
6.1     Warranties True as of
Closing Date. The representations and warranties of
Sellers contained herein shall be accurate, true and correct in
all material respects on and as of the date hereof.



     
6.2     Injunctions. No
court or other Governmental Authority shall have issued an
order, decree or ruling which shall then be in effect enjoining,
restraining or prohibiting the completion of the transactions
contemplated hereby and no suit, action or proceeding shall have
been instituted by a Governmental Authority with at least a
reasonable possibility of success seeking to enjoin, restrain,
prohibit or otherwise challenge the transactions contemplated by
this Agreement, or that would be reasonably likely to prevent or
make illegal the consummation of the transactions contemplated
by this Agreement, and no Government Authority shall have
notified Purchaser or Sellers in writing that this Agreement or
the consummation of the transactions contemplated by this
Agreement, this Agreement would in any manner constitute a
violation of any law, rule, or regulation and that it intends to
commence any suit, action, or proceeding to restrain, enjoin or,
prohibit the transaction contemplated by this Agreement.



     
6.3     Laws. There shall
not be any Law restraining, enjoining or prohibiting the
consummation of the transaction contemplated by this Agreement.



     
6.4     Deliveries by
Sellers. Sellers shall have effected the deliveries
required pursuant to Section 2.8.




ARTICLE 7.




Conditions Precedent to Obligations of Sellers



     
The obligation of Sellers to execute this Agreement and
consummate the transactions contemplated hereby is, at the
option of Sellers, subject to the satisfaction of each of the
following conditions precedent on or before the Closing Date:



     
7.1     Warranties True as of
Closing Date. The representations and warranties of
Purchaser contained herein shall be accurate, true and correct
in all material respects on and as of the date hereof.



     
7.2     Compliance with
Agreements and Covenants. Purchaser shall in all
material respects have performed and complied with all of its
covenants and obligations contained in this Agreement to be
performed and complied with by it on or prior to the Closing
Date.



A-18







 



     
7.3     Injunctions. No
court or other Governmental Authority shall have issued an
order, decree or ruling which shall then be in effect enjoining,
restraining or prohibiting the completion of the transactions
contemplated hereby and no suit, action or proceeding shall have
been instituted by a Governmental Authority with at least a
reasonable possibility of success seeking to enjoin, restrain,
prohibit or otherwise challenge the transactions contemplated by
this Agreement, or that would be reasonably likely to prevent or
make illegal the consummation of the transactions contemplated
by this Agreement, and no Government Authority shall have
notified Purchaser or Sellers in writing that this Agreement or
the consummation of the transactions contemplated by this
Agreement would in any manner constitute a violation of any law,
rule or regulation and that it intends to commence any suit,
action, or proceeding to restrain, enjoin or prohibit the
transactions contemplated by this Agreement.



     
7.4     Laws. There shall
not be any Law restraining, enjoining, or prohibiting the
consummation of the transaction contemplated by this Agreement.



     
7.5     Deliveries by
Purchaser. Purchaser shall have effected the deliveries
required pursuant to Section 2.9.




ARTICLE 8.




[RESERVED]




ARTICLE 9.




Survival and Indemnification



     
9.1     Survival. The
representations and warranties of the parties hereto contained
herein shall survive the Closing for a period of 24 months,
except that (a) Tax Warranties in respect of a particular
Tax shall survive until the Tax Statute of Limitations Date for
such Tax and (b) Title and Authorization Warranties shall
survive forever. Neither Purchaser nor any Seller shall have any
liability with respect to claims first asserted in connection
with any representation or warranty after the survival period
specified therefore in this Section 9.1.



     
9.2     Indemnification by
RFC. Subject to the following sentence and
Section 9.4, RFC agrees to indemnify Purchaser, its
Affiliates and its officers, directors, employees, successors
and permitted assigns (the “Purchaser Indemnified
Parties”) after the Closing against and in respect of,
and agree to hold the Purchaser Indemnified Parties harmless
from, any and all Losses asserted against, imposed on, incurred
by or suffered by any Purchaser Indemnified Party arising out of
or resulting from any of the following:






		
	 	     
    (a) any breach of or any inaccuracy in any representation
    or warranty made by RFC in this Agreement; provided, that
    RFC shall not have any liability under this
    Section 9.2(a) for any breach of or inaccuracy in
    any representation or warranty unless (i) in the case of
    all representations and warranties, except Tax Warranties and
    Title and Authorization Warranties, a notice of the Purchaser
    Indemnified Party’s claim’ is given to RFC not later
    than 5:30 p.m. central time on the
    24-month anniversary of
    the Closing Date, (ii) in the case of Tax Warranties, a
    notice of the Purchaser Indemnified Party’s claim is given
    to RFC not later than 5:30 p.m. Chicago time on the Tax
    Statute of Limitations Date for the particular Tax in question
    and (iii) in the case of Title and Authorization
    Warranties, a notice of the Purchaser Indemnified Party’s
    claim is given to RFC at any time in the future;
	 
	 	     
    (b) any breach of or failure by (excluding any breach or
    inaccuracy covered by Section 9.2(a) above) RFC to
    perform any agreement, covenant, obligation or undertaking of
    RFC set out in this Agreement delivered at the Closing;
    provided, that RFC shall not have any liability under
    this Section 9.2(b) for any breach or failure
    occurring on or prior to the Closing Date unless a notice of the
    Purchaser Indemnified Party’s claim is given to RFC, not
    later than 5:30 p.m. Chicago time on the
    24-month anniversary of
    the Closing Date; or
	 
	 	     
    (c) the Excluded Obligations.



A-19







 



     
9.3     Indemnification by
Purchaser. Subject to the following sentence and
Section 9.4, Purchaser agrees to indemnify RFC, its
Affiliates, officers, directors, employees, successors and
permitted assigns (the “Seller Indemnified
Parties”) after the Closing against and in respect of,
and agree to hold the Seller Indemnified Parties harmless from,
any and all Losses asserted against, imposed on, incurred by or
suffered by any Seller Indemnified Party arising out of or
resulting from any of the following:






		
	 	     
    (a) any breach of or any inaccuracy in any representation
    or warranty made by Purchaser in this Agreement;
    provided, that Purchaser shall not have any liability
    under this Section 9.3(a) for any breach of or
    inaccuracy in any representation or warranty unless, (i) in
    the case of all representations and warranties, except for Title
    and Authorization Warranties, a notice of the Seller Indemnified
    Party’s claim is given to Purchaser, as applicable, not
    later than 5:30 p.m. Chicago time on the
    24-month anniversary of
    the Closing Date and (Ii) in the case of Title and Authorization
    Warranties, a notice of the Seller Indemnified Party’s
    claim is given to Purchaser at anytime in the future;
	 
	 	     
    (b) any breach of or failure by (excluding any breach or
    inaccuracy covered by Section 9.3(a) above)
    Purchaser to perform any agreement, covenant, obligation or
    undertaking of Purchaser set out in this Agreement;
    provided, that Purchaser shall not have any liability
    under this Section 9.3(b) for any breach or failure
    occurring on or prior to the Closing, unless a notice of the
    Seller Indemnified Party’s claim is given to Purchaser, as
    applicable, not later than 5:30 p.m. Chicago time on the
    24-month anniversary of
    the Closing Date;
	 
	 	     
    (c) any event or condition occurring after the Closing Date
    with respect to the Transferred Assets and the Assumed
    Obligations; or
	 
	 	     
    (d) the Assumed Obligations.



     
9.4     Limitations on
Liability. Notwithstanding any other provision of this
Agreement (other than Section 9.12):






		
	 	     
    (a) Other than for liability under Section 3.6,
    Section 9.2(c), Section 9.3,
    Section 9.9 or Article 10, for which, in
    each case, this Section 9.4(a) shall not be
    applicable (with the effect that indemnification for any such
    Losses for any such breach shall not be subject to this
    Section 9.4(a)), RFC shall not have any obligation
    to indemnify the Purchaser Indemnified Parties unless the
    aggregate amount of Losses subject to indemnification pursuant
    to Section 9.2 shall exceed I% of the Purchase Price
    (the “Basket Amount”), and once such amount is
    exceeded, RFC shall indemnify the Purchaser Indemnified Parties
    for, and shall be liable for, the full amount of all Losses
    subject to indemnification pursuant to Section 9.2
    (subject to the other limitations on indemnification expressly
    set forth in this Agreement), without reduction for the Basket
    Amount.
	 
	 	     
    (b) Other than for liability under Section 3.6
    and Article X, in no event shall the aggregate
    liability of RFC for Losses incurred or suffered by the
    Purchaser Indemnified Parties exceed the amount equal to 25% of
    the Purchase Price (the “Indemnification Cap”).
	 
	 	     
    (c) Other than for liability under Section 9.9
    or Article 10, for which, in each case, this
    Section 9.4(c) shall not be applicable (with the
    effect that indemnification for any such Losses for any such
    breach shall not be subject to this Section 94(c)),
    Purchaser shall not have any obligation to indemnify the Seller
    Indemnified Parties unless the aggregate amount of Losses
    subject to indemnification pursuant to Section 9.2
    shall exceed the Basket Amount, and once such amount is
    exceeded, Purchaser shall indemnify the Seller Indemnified
    Parties for, and shall be liable for, the full amount of all
    Losses subject to indemnification pursuant to
    Section 9.3 (subject to the other limitations on
    indemnification expressly set forth in this Agreement), without
    reduction for the Basket Amount.
	 
	 	     
    (d) In no event shall the aggregate liability of Purchaser
    for Losses incurred or suffered by the Seller Indemnified
    Parties exceed the Indemnification Cap.
	 
	 	     
    (e) The sole and exclusive liability and responsibility of
    Sellers to the Purchaser Indemnified Parties under or in
    connection with this Agreement or the transactions contemplated
    hereby, other than the Transition Services Agreement and the
    Employee Leasing Agreement (including for any breach of or



A-20







 


		
	 	
    inaccuracy in any representation or warranty or for any breach
    of any covenant or obligation), and the sole and exclusive
    remedy of the Purchaser Indemnified Parties with respect to any
    of the foregoing, shall be as set forth in Article 9
    and Article 10.
	 
	 	     
    (f) The sole and exclusive liability and responsibility of
    Purchaser to the Seller Indemnified Parties under or in
    connection with this Agreement or the transactions contemplated
    hereby, other than the Transition Services Agreement and the
    Employee Leasing Agreement (including for any breach of or
    inaccuracy in any representation or warranty or for any breach
    of any covenant or obligation), and the sole and exclusive
    remedy of the Seller Indemnified Parties with respect to any of
    the foregoing, shall be as set forth in Article 9
    and Article 10.




     
9.5     Claims. As
promptly as is reasonably practicable after knowledge of a claim
for indemnification under this Agreement that does not involve a
third party claim, or the commencement of any suit, action or
proceeding of the type described in Section 9.6,
becomes within the knowledge of Purchaser or Sellers, as the
case may be, the Indemnified Person shall give written notice to
the Indemnifying Person of such claim, which notice shall
specify in reasonable detail the nature of such claim and the
estimated amount (if then susceptible to estimation) that the
Indemnified Person at the time plans to seek hereunder from the
Indemnifying Person, together with such reasonably available
information (if not already available to the Indemnifying
Person) as may be necessary for the Indemnifying Person to
determine that the limitations in Section 9.4 have
been satisfied or do not apply; provided, that failure of
the Indemnified Person to give such notice of any such claim
shall not release, waive or otherwise affect the obligations
under this Article 9 of the Indemnifying Person with
respect thereto except to the extent that it is materially
prejudiced by the failure or delay in giving such notice.



     
9.6     Notice of Third Party
Claims; Assumption of Defense. The Indemnified Person
shall give written notice (the “Initial
Notice”) as promptly as is reasonably practicable, but
in any event no later than ten Business Days after receiving
notice thereof, to the Indemnifying Person of the written
assertion of any claim, or the commencement of any suit, action
or proceeding, by any Person not a party hereto in respect of
which indemnity is to be sought under this Agreement (which
notice shall specify in reasonable detail the nature of such
claim and the estimated amount (if then susceptible to
estimation) that the Indemnified Person at that time plans to
seek hereunder from the Indemnifying Person, together with such
reasonably available information (if not already available to
the Indemnifying Person) as may be necessary for the
Indemnifying Person to determine that the limitations in
Section 9.4 have been satisfied or do not apply);
provided, that failure of the Indemnified Person to give
such notice of any such claim or commencement shall not release,
waive or otherwise affect the obligations under this
Article 9 of the Indemnifying Person with respect
thereto except to the extent that it is materially prejudiced by
the failure or delay in giving such notice. The Indemnifying
Person may, at its own expense, (a) participate in the
defense of any such claim, suit, action or proceeding and
(b) upon notice to the Indemnified Person within ten
Business Days after the receipt of the Initial Notice from the
Indemnified Person of the claim, suit, action or proceeding,
assume the defense thereof with counsel of its own choice
reasonably acceptable to the Indemnified Person, and in the
event of such assumption, shall have the exclusive right,
subject to compliance by the Indemnifying Person with
clauses (i) and (iii) of
Section 9.7, to settle or compromise such claim,
suit, action or proceeding. If the Indemnifying Persons do not
so elect to assume such defense in accordance with the terms of
this Section 9.6, the Indemnified Person may defend
such claim, suit, action or proceeding in such manner as the
Indemnified Person may deem appropriate, including settling such
claim or action or proceeding (after giving notice of the same
to each of the Indemnifying Persons) on such terms as the
Indemnified Person may deem appropriate, and the Indemnifying
Persons shall assist and cooperate fully with such defense as
reasonably requested by the Indemnified Person and shall
promptly indemnify the Indemnified Person in accordance with the
provisions of Section 9.2 or 9.3, as
applicable. If the Indemnifying Person so assumes such defense,
the Indemnified Person shall have the right (but not the duty)
to participate in the defense thereof and to employ counsel
separate from the counsel employed by the Indemnifying Person;
provided, that the expense of separate counsel so
employed shall be borne by the Indemnified Person unless there
exists actual or potential conflicting interests between the
Indemnifying Persons and the Indemnified Person. Whether or not
the Indemnifying Person chooses to defend or prosecute any such
claim, suit, action or proceeding, all of the parties hereto
shall cooperate in the defense or prosecution thereof.



A-21







 



     
9.7     Settlement or
Compromise. Any settlement or compromise made or caused
to be made by the Indemnified Person (unless the Indemnifying
Person has the exclusive right to settle or compromise under
Section 9.6) or the Indemnifying Person, as the case
may be, of any such claim, suit, action or proceeding of the
kind referred to in Section 9.6 shall also be
binding upon the Indemnifying Person or the Indemnified Person,
as the case may be, in the same manner as if a final judgment or
decree had been entered by a court of competent jurisdiction in
the amount of such settlement or compromise; provided
that (i) no obligation, restriction or Loss shall be
imposed on the Indemnified Person as a result of any settlement
or compromise without its prior written consent, which consent
shall not be unreasonably withheld or delayed, (ii) if the
Indemnifying Person has assumed the defense of a claim, suit,
action or proceeding pursuant to Section 9.6, the
Indemnified Person shall not compromise or settle such claim,
suit, action or proceeding without the prior written consent of
the Indemnifying Person, which consent shall not be unreasonably
withheld or delayed, and (iii) such settlement shall not
contain any finding or admission of any violation of Law or any
fault on the part of the Indemnified Person, and shall not have
any effect on any other claims that may be made by the
Indemnified Person against the third party bringing the claim,
suit, action or proceeding.



     
9.8     Net Losses: Subrogation:
Mitigation.



     
(a) Notwithstanding anything contained herein to the
contrary, the amount of any Losses incurred or suffered by an
Indemnified Person shall be calculated after giving effect to
(i) any insurance proceeds received by the Indemnified
Person (or any of its Affiliates) with respect to such Losses,
but only if the insurance premium relating to such proceeds has
not been paid for by the Indemnified Person, (ii) any Tax
Benefit realized by the Indemnified Person (or any of its
Affiliates) arising from the facts or circumstances giving rise
to such Losses and from the payment of any amounts to the
Indemnified Person (or any of its Affiliates) on account of any
Losses and (iii) any other recoveries directly relating to
such Loss obtained by the Indemnified Person (or any of its
Affiliates) from any other third party, less all Losses related
to the pursuing and receipt of such recoveries and any related
recoveries. Each Indemnified Person shall exercise commercially
reasonable efforts to obtain such proceeds, benefits and
recoveries; provided, that no party shall be required to
use such efforts if they would be detrimental in any material
respect to such party. If any such net proceeds, benefits or
recoveries are received by an Indemnified Person (or any of its
Affiliates) with respect to any Losses after an Indemnifying
Person has made a payment to the Indemnified Person with respect
thereto, the Indemnified Person (or such Affiliate) shall pay to
the Indemnifying Person the amount of such net proceeds,
benefits or recoveries (up to the amount of the Indemnifying
Person’s payment).



     
(b) Upon making any payment to an Indemnified Person in
respect of any Losses, the Indemnifying Person shall, to the
extent of such payment, be subrogated to all rights of the
Indemnified Person (and its Affiliates) against any insurance
company or any other third party from which the Indemnified
Person (and its Affiliates) has contractual indemnity rights, in
respect of the Losses to which such payment relates. Such
Indemnified Person (and its Affiliates) and Indemnifying Person
shall execute upon request all instruments reasonably necessary
to evidence or further perfect such subrogation rights.



     
(c) Purchaser and Sellers shall use commercially reasonable
efforts to mitigate any Losses, whether by asserting claims
against a third party or by otherwise qualifying for a benefit
that would reduce or eliminate an indemnified matter;
provided, that no party shall be required to use such
efforts if they would be detrimental in any material respect to
such party.



     
9.9     Special Rule for
Fraud. Notwithstanding anything in this
Article 9 or elsewhere in this Agreement to the
contrary, in the event of a breach of a representation or
warranty by any party to this Agreement that constitutes fraud
or intentional deception, the representation or warranty that
has been breached will survive the execution and delivery of
this Agreement and the consummation of the transactions
contemplated hereby (regardless of any investigation made by any
party to this Agreement or on its behalf) and will continue in
full force and effect for perpetuity, and any Losses from any
such breach shall not be subject to the indemnification basket,
cap or other limitations contained in this Article 9.



A-22







 




ARTICLE 10.




Tax Matters



     
10.1     Transfer Taxes.
All excise, goods and services, sales (including bulk sales),
use, value added, registration, recording, documentary,
conveyancing, property, and transfer taxes incurred with the
transactions contemplated by this Agreement (“Transfer
Taxes”) shall be borne equally (50/50) by Purchaser and
Sellers. Sellers and Purchaser shall cooperate to timely
prepare, and Sellers shall file or cause to be filed any returns
or other filings relating to such Transfer Taxes (unless
Purchaser is required by applicable Law to file the return),
including any claim for exemption or exclusion from the
application or imposition of any Transfer Taxes. With respect to
any such returns or filings required to be filed by Sellers,
Sellers shall provide Purchaser with a copy of such return or
other filing and a copy of a receipt showing payment of any such
Transfer Tax.



     
10.2     Liability for Taxes and
Related Matters.



     
(a) Sellers shall prepare or cause to be prepared all Tax
Returns relating to the Transferred Assets for periods ending on
or prior to the Closing Date.



     
(b) Purchaser shall prepare and file all Tax Returns
relating to all real property Taxes, personal property Taxes or
similar ad valorem obligations levied with respect to the
Transferred Assets for any taxable period beginning on or before
and ending after the Closing Date (a “Straddle
Period,” and such Taxes, “Straddle Period
Taxes”), whether imposed or assessed before or after
the Closing Date. The liability for payment of each such
Straddle Period Tax shall be pro-rated between Purchaser and
Sellers at the Closing Date based on 100% of the amount of such
Straddle Period Tax imposed for the prior taxable period. The
portion of each such Straddle Period Tax that is allocable to
Sellers shall be the product of (i) 100% of the amount of
such tax for the prior taxable period and (ii) a fraction,
the numerator of which is the number of days in the Tax period
ending on the Closing Date and the denominator of which is the
number of days in the entire Tax period. The amount of Tax
allocable to Sellers pursuant to this
Section 10.2(b) shall be withheld from the Purchase
Price, and Purchaser shall be responsible for remitting all
Straddle Period Taxes to the appropriate taxing authority when
due.



     
(c) Cooperation. Purchaser and Sellers agree
to furnish or cause their Affiliates to furnish to each other
upon request, as promptly as practicable, such information and
assistance relating to the Transferred Assets (including access
to books and records) as is reasonably necessary for the filing
of all Tax Returns and other Tax filings, the making of any
election related to Taxes, the preparation for any audit by any
taxing authority, and the prosecution or defense of any claim,
suit or proceeding relating to any Tax Return. Purchaser and
Sellers shall cooperate, or cause their Affiliates to cooperate,
with each other in the conduct of any audit or other proceeding
related to Taxes and each shall execute and deliver such other
documents as are necessary to carry out the intent of this
Section 10.2. Purchaser and Sellers shall provide,
or cause their Affiliates to provide, timely notice to each
other in writing of any pending or threatened Tax audits,
assessments or litigation with respect to the Transferred Assets
or the Business for any taxable period for which the other party
may have liability under this Agreement. Purchaser and Sellers
shall furnish, or cause their respective Affiliates to furnish,
to each other copies of all correspondence received from any
taxing authority in connection with any Tax audit or information
request with respect to any taxable period for which the other
party or its Affiliates may have liability under this Agreement.



     
10.3     Tax Benefits.
Except as otherwise required by applicable Law, the parties
agree that any indemnity payments hereunder shall be treated as
an adjustment to the Purchase Price for income Tax purposes. The
amount of Taxes for which indemnification is provided hereunder
shall be increased to take account of any Tax cost incurred
(including any loss of deduction) by the indemnified party as a
result of the receipt of such indemnity payments, and shall be
reduced to take account of any Tax benefit realized by the
indemnified party arising from such Loss; provided, however,
that, in the case of any Tax benefit that is not recognized
until a subsequent taxable period, the amount of the reduction
under this Section 10.3 shall be the net present
value of such Tax benefit as determined by the parties in good
faith.



A-23







 



     
10.4     Allocation of Purchase
Price. Within 60 days after the Closing Date,
Purchaser shall deliver to Sellers a schedule allocating the
Purchase Price and Assumed Obligations among the Transferred
Assets in accordance with section 1060 of the Code and the
regulations thereunder (the “Allocation
Schedule”). The Allocation Schedule shall include a
breakdown by Governmental Authority and shall in all other
material respects contain sufficient detail to enable Purchaser
and Sellers to determine Taxes applicable to the transactions
contemplated by this Agreement. Sellers have 30 days from
the date of receipt of the Allocation Schedule to notify
Purchaser in writing that Sellers dispute one or more items
reflected on the Allocation Schedule as having no reasonable
basis for the allocation set forth in the Allocation Schedule,
which notice shall include a detailed explanation of the basis
for the dispute. If Sellers do not provide such notice to
Purchaser, Sellers shall be deemed to have accepted the
Allocation Schedule as submitted by Purchaser. If Sellers do
provide such notice, Sellers and Purchaser shall negotiate in
good faith to resolve such dispute. If Sellers and Purchaser
fail to resolve any such dispute within 30 days of
Purchaser’s receipt of Sellers’ notice, the
Arbitrating Accounting Firm shall be engaged for resolution of
the dispute with respect to the allocation of the Purchase Price
and Assumed Obligations to the extent such allocation is in
dispute. The determination of the Arbitrating Accounting Firm
shall be final and binding on all parties. The parties agree not
to take any position inconsistent with the Allocation Schedule
for Tax reporting purposes. The fees and expenses of the
Arbitrating Accounting Firm in connection with the resolution of
any dispute shall be paid equally by Purchaser and Sellers.




ARTICLE 11.




Miscellaneous



     
11.1     Expenses. Each
party hereto shall bear its own expenses with respect to this
transaction.



     
11.2     Amendment. This
Agreement may be amended, modified or supplemented only in
writing signed by each of the parties hereto.



     
11.3     Notices. Any
written notice to be given hereunder shall be deemed given:
(a) when received if given in person or by nationally
recognized courier; (b) on the date of transmission if sent
by telecopy, e-mail or
other wire transmission (receipt confirmed); (c) three
Business Days after being deposited in the US mail, certified or
registered mail, postage prepaid; and (d) if sent by an
internationally recognized overnight delivery service, the
second Business Day following the date given to such overnight
delivery service (specified for overnight delivery and receipt
confirmed). All notices shall be addressed as follows:



     
If to any Seller, addressed as follows:






		
	 	
    Residential Funding Company, LLC
	 	
    or
	 	
    Equity Investments II, LLC
	 	
    c/o Residential Capital Corporation, LLC
	 	
    8400 Normandale Lake Boulevard
	 	
    Minneapolis, Minnesota 55437
	 	
    Attention: General Counsel
	 	
    Telephone: (952) 857-6955
	 	
    Facsimile: (952) 857-6960
	 
	 	
    with a copy to:
	 
	 	
    Mayer, Brown, Rowe & Maw LLP
	 	
    71 South Wacker Drive
	 	
    Chicago, Illinois 60606
	 	
    Attention: Elizabeth A. Raymond, Esq.
	 	
    Telephone: (312) 701-7322
	 	
    Facsimile: (312) 701-7711



A-24







 






		
	 	
    If to Purchaser, addressed as follows:
	 
	 	
    GMAC Commercial Finance LLC
	 	
    1290 Avenue of the Americas
	 	
    3rd Floor
	 	
    New York, NY 10104
	 	
    Attn: General Counsel
	 	
    Telephone: (212) 884-7272
	 	
    Facsimile: (212) 884-7372
	 
	 	
    with a copy to:
	 
	 	
    GMAC LLC
	 	
    200 Renaissance Center
	 	
    Mail Code 482-B09-B11
	 	
    Detroit, Michigan 48265
	 	
    Attn: General Counsel
	 	
    Telephone: (313) 656-6128
	 	
    Facsimile: (313) 566-0390



     
11.4     Waivers. The
failure of a party to require performance of any provision
hereof shall not affect its right at a later time to enforce the
same. No waiver by a party of any term, covenant, representation
or warranty contained herein shall be effective unless in
writing. No such waiver in any one instance shall be deemed a
further or continuing waiver of any such term, covenant,
representation or warranty in any other instance.



     
11.5     Counterparts.
This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall
constitute one and the same instrument.



     
11.6     Headings. The
headings preceding the text of Articles and Sections of this
Agreement and the Schedules and Exhibits thereto are for
convenience only and shall not be deemed part of this Agreement.



     
11.7     Applicable Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS (BOTH SUBSTANTIVE
AND PROCEDURAL), AND NOT THE CONFLICT OF LAWS PRINCIPLES OF THE
STATE OF DELAWARE.



     
11.8     Assignment. This
Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and permitted assigns;
provided, that no assignment of either party’s
rights or obligations may be made without the written consent of
the other party, which consent shall not be unreasonably
withheld or delayed, other than an assignment to an Affiliate of
either party, including in connection with any financing
transactions entered into by Purchaser.



     
11.9     No Third Party
Beneficiaries. This Agreement is solely for the benefit
of the parties hereto and, solely with respect to
Article 9 and Article 10, any
Indemnified Person hereunder, and, except as aforesaid, no
provision of this Agreement shall be deemed to confer any
remedy, claim or right upon any third party, including any
employee or former employee of Sellers or any participant or
beneficiary in any benefit plan, program or arrangement.



     
11.10     Waiver of Jury
Trial. EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY
TRIAL IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING BROUGHT
BY SUCH PARTY AGAINST THE OTHER IN CONNECTION WITH OR ARISING
FROM THIS AGREEMENT.



     
11.11     Schedules.
Neither the specification of any dollar amount in any
representation or warranty contained in this Agreement nor the
inclusion of any specific item in any Schedule hereto is
intended to imply that such amount, or higher or lower amounts,
or the item so included or other items, are or are not material,
and no party shall use the fact of the setting forth of any such
amount or the inclusion of any such item in any dispute or
controversy between the parties as to whether any obligation,
item or matter not described herein or



A-25







 




included in any Schedule is or is not material for purposes of
this Agreement. Unless this Agreement specifically provides
otherwise, neither the specification of any item or matter in
any representation or warranty contained in this Agreement nor
the inclusion of any specific item in any Schedule hereto is
intended to imply that such item or matter, or other items or
matters, are or are not in the ordinary course of business, and
no party shall use the fact of the setting forth or the
inclusion of any such item or matter in any dispute or
controversy between the parties as to whether any obligation,
item or matter not described herein or included in any Schedule
is or is not in the ordinary course of business for purposes of
this Agreement.



     
11.12     Incorporation.
The respective Schedules, Exhibits and
Appendices attached hereto and referred to herein are
incorporated into and form a part of this Agreement.



     
11.13     Complete
Agreement. This Agreement constitutes the complete
agreement of the parties with respect to the subject matter
hereof and supersede all prior discussions, negotiations and
understandings.



     
11.14     Disclaimer.
Sellers disclaim any representations or warranties except as
specifically set forth in this Agreement (or any agreement or
document referred to in this Agreement or delivered in
connection with the transactions contemplated by this Agreement).



     
11.15     Public
Announcements. Sellers and Purchaser each agree that
they and their Affiliates shall not issue any press release or
otherwise make any public statement or respond to any media
inquiry with respect to this Agreement or the transactions
contemplated hereby without the prior approval of the other
parties, which shall not be unreasonably withheld or delayed,
except as may be required by Law or by any stock exchanges
having jurisdiction over Sellers, Purchaser or their Affiliates.



     
11.16     Further
Assurances. At any time and from time to time after the
Closing, at Purchaser’s reasonable request and without
further consideration, each Seller shall execute and deliver,
and cause its Affiliates, as appropriate, to execute and
deliver, such other instruments of sale, transfer, conveyance,
assignment and confirmation and take such further actions as
Purchaser may reasonably deem necessary or desirable in order to
more effectively transfer, convey and assign to Purchaser (or
any successor or permitted assign of Purchaser), and to confirm
Purchaser’s (and any such successor’s and
assign’s) title to the Transferred Assets, to put Purchaser
(and any such successors and assigns) in actual possession and
operating control thereof and to assist Purchaser (and any such
successors and assigns) in exercising all rights, title and
interests with respect thereto.



A-26







 



     
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered on August 27, 2007.






		
	 	
    RESIDENTIAL FUNDING COMPANY, LLC






			
	 	By: 	
    /s/ James G. Jones



		
	 	
     

	 	
    Name: James G. Jones
	 	
    Title:   Chief Executive Officer
	 
	 	
    EQUITY INVESTMENTS II, LLC






			
	 	By: 	
     



		
	 	
     

	 	
    Name: 
	 	
    Title:
	 
	 	
    GMAC COMMERCIAL FINANCE LLC






			
	 	By: 	
     



		
	 	
     

	 	
    Name: 
	 	
    Title:



A-27






 



     
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered on August 27, 2007.






		
	 	
    RESIDENTIAL FUNDING COMPANY, LLC






			
	 	By: 	
     



		
	 	
     

	 	
    Name: 
	 	
    Title:
	 
	 	
    EQUITY INVESTMENTS II, LLC






			
	 	By: 	
    /s/ David Flavin



		
	 	
     

	 	
    Name: David Flavin
	 	
    Title:   CFO
	 
	 	
    GMAC COMMERCIAL FINANCE LLC






			
	 	By: 	
     



		
	 	
     

	 	
    Name: 
	 	
    Title:



A-28







 



     
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered on August 27, 2007.






		
	 	
    RESIDENTIAL FUNDING COMPANY, LLC






			
	 	By: 	
     



		
	 	
     

	 	
    Name: 
	 	
    Title:
	 
	 	
    EQUITY INVESTMENTS II, LLC






			
	 	By: 	
     



		
	 	
     

	 	
    Name: 
	 	
    Title:
	 
	 	
    GMAC COMMERCIAL FINANCE LLC






			
	 	By: 	
    /s/ William C. Hall, Jr.



		
	 	
     

	 	
    Name: William C. Hall, Jr.



			
	 	Title:	
    President and C.E.O.



A-29