**TABLE OF CONTENTS**     ARTICLE I DEFINITIONS AND TERMS  4 Section 1.1 Certain Definitions  4 Section 1.2 Other Terms  7 Section 1.3 Other Definitional Provisions  8 ARTICLE II PURCHASE AND SALE OF INTERESTS  9 Section 2.1 Sale of Interests  9 Section 2.2 Assumed Liabilities; Retained Liabilities; Cancellation of GMAC MHF Note  9 Section 2.3 Purchase Price  9 Section 2.4 Adjustments to the Firm Bid Price  10 Section 2.5 Closing  12 Section 2.6 Deliveries by Seller  12 Section 2.7 Deliveries by Buyer  13 Section 2.8 Closing Costs  14 ARTICLE III REPRESENTATIONS AND WARRANTIES  14 Section 3.1 Representations and Warranties of ResCap and Seller  14 Section 3.2 Representations and Warranties of Buyer  17 ARTICLE IV COVENANTS  18 Section 4.1 Commercially Reasonable Efforts  18 Section 4.2 Additional Covenants  19 Section 4.3 Servicing and Asset Management  19 Section 4.4 Excluded Asset Sales  19 Section 4.5 Tax Matters  20 Section 4.6 Further Assurances  21 ARTICLE V CONDITIONS TO CLOSING  21 Section 5.1 Conditions to the Obligations of each of the Parties  21 Section 5.2 Conditions to the Obligations of ResCap and Seller  22 Section 5.3 Conditions to the Obligations of Buyer  22 ARTICLE VI TERMINATION  23 Section 6.1 Termination  23 Section 6.2 Effect of Termination  23 ARTICLE VII INDEMNIFICATION  23 Section 7.1 Survival of Representations, Warranties and Covenants  23 Section 7.2 Indemnification  23 Section 7.3 Notice of Claim; Defense  24 Section 7.4 Limitations on Indemnification  26 ARTICLE VIII MISCELLANEOUS  28 Section 8.1 Notices  28 Section 8.2 Amendment; Waiver  29 Section 8.3 No Assignment or Benefit to Third Parties  29 Section 8.4 Entire Agreement  29 Section 8.5 Fulfillment of Obligations  29 Section 8.6 Expenses  30 
 

 
     Section 8.7 Governing Law; Submission to Jurisdiction; Selection of Forum; Waiver of Trial by Jury   30 Section 8.8 Counterparts  30 Section 8.9 Headings  30 Section 8.10 Severability  30 Section 8.11 Commitment Regarding Actions of Controlled Affiliates  31 Section 8.12 Specific Performance  31 EXHIBITS   Exhibit A-1 Pool 1 AssetsExhibit A-2 Pool 2 AssetsExhibit B Excluded AssetsExhibit C Buyer’s Valuation of AssetsExhibit D Calculation of Proration AmountExhibit E Servicing AgreementExhibit F Limited Assignment and Assumption AgreementExhibit G Form of Mutual ReleaseExhibit H Form of Purchase and Sale Contract and Deed
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**Exhibit E**PURCHASE AGREEMENT     This PURCHASE AGREEMENT is dated as of September 30, 2008, among Residential Capital, LLC, aDelaware limited liability company (“ResCap”), DOA Holding Properties, LLC, a Delawarelimited liability company and indirect wholly-owned subsidiary of ResCap (“Seller”), DOAProperties IIIB (KB Models), LLC, a Delaware limited liability company and direct wholly-ownedsubsidiary of Seller (“Subsidiary”) and MHPool Holdings LLC, a Delaware limited liabilitycompany (“Buyer”). Each of ResCap, Seller, Subsidiary and Buyer are referred to herein asa “Party” and, collectively, as the “Parties”.RECITALS:     WHEREAS, as of June 30, 2008, Subsidiary was the owner of all of the assets identified inExhibit A-1 hereto (collectively, the “Pool 1 Assets” or “Pool 1”), as towhich Cerberus Capital Management, L.P. submitted a firm bid on July 25, 2008 (the “BidLetter”);     WHEREAS, as of June 30, 2008, DOA Properties III (Models), LLC, a Delaware limited liabilitycompany and an Affiliate of Subsidiary (“DOA Affiliate”), was the owner of all of theassets identified in Exhibit A-2 hereto (collectively, the “Pool 2 Assets” or“Pool 2”, and, together with the Pool 1 Assets, the “Assets” or the“Pools”), as to which Cerberus Capital Management, L.P. also submitted the Bid Letter;     WHEREAS, DOA Affiliate has conveyed title to the Pool 2 Assets (other than the ExcludedAssets, as defined below) to Subsidiary;     WHEREAS, during the period from June 30, 2008 to the date hereof, Subsidiary or (prior to theconveyance of the Pool 2 Assets to Subsidiary) DOA Affiliate, as the case may be, has entered intoa definitive agreement to sell, or has otherwise sold, to a third party a portion of the Assets, alist of which is set forth on Exhibit B hereto (the “Excluded Assets”); and     WHEREAS, Seller desires to sell, and Buyer desires to purchase, all of the Assets other thanthe Excluded Assets (the “Subject Assets”), through a sale and purchase of all of themembership interests of Subsidiary (the “Interests”), as contemplated by the Bid Letter, onthe terms and subject to the conditions set forth herein.
 

 
     NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties,covenants and undertakings contained herein, and for other good and valuable consideration, thereceipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to belegally bound, agree as follows:ARTICLE IDEFINITIONS AND TERMS     Section 1.1 Certain Definitions. As used in this Agreement, the following terms have themeanings set forth below:     “Additional Proceeds Amount” means the aggregate amount of proceeds or other paymentsreceived by ResCap or any of its Affiliates in respect of the Subject Assets in respect of theperiod between 11:59 p.m. (New York City Time) on the Cut-Off Date and 12:01 a.m. (New York CityTime) on the Closing Date, including all payments due after the Cut-Off Date but received on orprior to 11:59 p.m. (New York City Time) on the Cut-Off Date.     “Adjustment Amount” means $18,949,822, which represents the total value ascribed tothe Excluded Assets by Buyer as set forth on Exhibit C hereto.     “Affiliate” means, with respect to any Person, any Person directly or indirectlycontrolling, controlled by, or under common control with, such other Person as of the date onwhich, or at any time during the period for which, the determination of affiliation is being made.For purposes of this definition, the term “control” (including the correlative meanings of theterms “controlled by” and “under common control with”), as used with respect to any Person, meansthe possession, directly or indirectly, of the power to direct or cause the direction of themanagement policies of such Person, whether through the ownership of voting securities or bycontract or otherwise.     “Agreement” means this Purchase Agreement, as the same may be amended or supplementedfrom time to time in accordance with the terms hereof.     “Ancillary Transfer Documents” means those instruments of transfer, assumptions,filings or documents required to be executed and delivered by Seller or Buyer to effect the saleand transfer of the Interests to Buyer pursuant to this Agreement.     “Business Day” means any day other than a Saturday, a Sunday or a day on which banksin New York City are authorized or obligated by Law or executive order to close.     “CERCLA” means the Comprehensive Environmental Response, Compensation and LiabilityAct of 1980, as amended through the Closing.     “Claims” means any and all actions, suits, petitions, appeals, demands, demandletters, claims, notices asserting any right to indemnification, liens, notices of noncompliance orviolation, investigations, proceedings, consent orders or consent agreements.     “Community” means the residential project in which a Model Home is located.
 

 
     “Contract” means any contract, undertaking, commitment, lease, mortgage, indenture,arrangement, plan or other legally binding agreement or understanding.     “Cut-Off Date” means June 30, 2008.     “Encumbrance” means any lien, pledge, charge, claim, encumbrance, restriction,community property interest, security interest, option, mortgage, easement, right of first offer,right of first refusal or claim of any kind and character.     “Environment” means surface waters, ground waters, soil, subsurface strata and ambientair.     “Environmental Laws” means all Laws, now or hereafter in effect and as amended, andany judicial or administrative interpretation thereof, including any judicial or administrativeorder, consent decree or judgment, relating to the Environment, health, safety, natural resourcesor Hazardous Materials, including CERCLA; the Resource Conservation and Recovery Act, 42 U.S.C. §§6901 etseq.; the Hazardous Materials Transportation Act, 49 U.S.C. §§ 6901etseq.; the Clean Water Act, 33 U.S.C. §§ 1251 etseq.; the ToxicSubstances Control Act, 15 U.S.C. §§ 2601 etseq.; the Clean Air Act, 42 U.S.C. §§7401 etseq.; the Safe Drinking Water Act, 42 U.S.C. §§ 300f etseq.; the Atomic Energy Act, 42 U.S.C. §§ 2011 etseq.; the FederalInsecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 136 etseq.; and theFederal Food, Drug and Cosmetic Act, 21 U.S.C. §§ 301 etseq.     “Governmental Entity” means any federal, state or local court, administrative body orother governmental or quasi-governmental entity with competent jurisdiction.     “Guaranty” means the Guaranty, effective as of June 5, 2006, made by ResidentialFunding Corporation (“RFC”) in favor of the Builder (as defined in the Pool 1 MSRA) inconnection with the Pool 1 MSRA.     “Hazardous Materials” means (a) any element, compound or chemical that is defined,listed or otherwise classified as a toxic pollutant, toxic or hazardous substance, extremelyhazardous substance or chemical, hazardous material, hazardous waste or biohazardous or infectiouswaste under applicable Environmental Laws; (b) petroleum, petroleum-based or petroleum-derivedproducts; (c) any substance exhibiting a hazardous waste characteristic including but not limitedto corrosivity, ignitibility, toxicity or reactivity as well as any radioactive or explosivematerials; (d) any substance containing 50 parts per million or more of polychlorinated biphenylsor asbestos that is friable or damaged; and (e) any other wastes, materials, chemicals orsubstances regulated pursuant to any Environmental Law.     “Law” means any law, statute, ordinance, rule, regulation, code, order, judgment,injunction or decree enacted, issued, promulgated, enforced or entered by a Governmental Entity orself-regulatory organization.     “Liabilities” means any and all debts, liabilities, commitments and obligations of anykind, whether fixed, contingent or absolute, matured or unmatured, liquidated or unliquidated,accrued or not accrued, asserted or not asserted, known or unknown, determined, determinable or
 

 
otherwise, whenever or however arising (including, whether arising out of any contract or tortbased on negligence or strict liability) and whether or not the same would be required by GAAP tobe reflected in financial statements or disclosed in the notes thereto.     “Limited Assignment and Assumption Agreement” means that certain Limited Assignmentand Assumption Agreement to be entered into at Closing by RFC, DOA Holdings NoteCo, LLC, KB One,LLC and Buyer in the form annexed hereto as attached hereto as Exhibit F.     “MSRA” means each of the Pool 1 MSRA and Pool 2 MSRA.     “Mutual Release” means that certain mutual release to be entered into at Closing byResCap, on behalf of itself and each of its controlled Affiliates (other than Subsidiary), on theone hand, and Subsidiary, on the other hand, in the form annexed hereto as Exhibit G.     “Note” means the Amended and Restated Note, dated June 5, 2006, issued by KBOne, LLCto KB Home, in connection with the Pool 1 MSRA.     “Permitted Encumbrances” means (i) liens for real property taxes and governmentimprovement assessments not yet due and payable; (ii) covenants, easements, agreements,restrictions and rights of record approved by Buyer that do not materially and adversely affect theinsurability or marketability of title to the Subject Asset or prohibit or interfere with the useof the Subject Asset as a single family residential dwelling; (iii) the standard title insurancepolicy exceptions for the jurisdiction to the extent customarily acceptable to buyers ofresidential property; and (iv) any defects or other matters affecting title that will beirrevocably extinguished by Seller or Subsidiary prior to the Closing.     “Person” means an individual, a corporation, a partnership, an association, a limitedliability company, a Governmental Entity, a trust or other entity or organization.     “Pool 1 MSRA” means the Second Amended and Restated Master Sale and Rental Agreement,dated as of June 5, 2006, by and between Subsidiary, as successor in interest to KB One, LLC and KBHome, as further amended or modified to date.     “Pool 2 MSRA” means the Second Amended and Restated Master Sale and Rental Agreement,dated as of September 10, 2004, by and among Subsidiary, as successor in interest to GMAC ModelHome Finance, Inc., Dominion Homes, Inc. and Dominion Homes of Kentucky, Ltd., as further amendedor modified to date.     “Proration Amount” means the amount determined in accordance with Exhibit D.     “Reference Rate” means the rate per annum equal to the “Prime Rate” for the UnitedStates as published in The Wall Street Journal, Eastern Edition.     “Release” means disposing, discharging, injecting, spilling, leaking, leaching,dumping, emitting, escaping, emptying, seeping, placing and the like into or upon any land or wateror air or otherwise entering into the Environment.
 

 
     “ResCap Disclosure Letters” means the disclosure letters delivered by Seller to Buyerprior to the execution and delivery of this Agreement relating to Pool 1 and Pool 2, respectively.     “ResCap’s Knowledge” means the actual knowledge of those persons identified inSection 1.1 of the ResCap Disclosure Letters.     “Subject Assets” means the Assets other than the Excluded Assets.     “Tax Returns” means all reports, returns, declarations, statements or otherinformation filed, supplied or required to be filed or supplied to any Governmental Entity inconnection with Taxes.     “Taxes” means all taxes, charges, fees, levies or other similar assessments orliabilities, including without limitation income, gross receipts, ad valorem, premium, value-added,excise, real property, personal property, sales, use, services, withholding, employment, payrolland franchise taxes imposed by the United States or any state, local or foreign government, or anyagency thereof, or other political subdivision of the United States or any such government, and anyinterest, fines, penalties, assessments or additions to tax resulting from, attributable to, orincurred in connection with any Tax or any contest or dispute thereof and any interest in respectof such amounts.     “Transaction Documents” means, collectively, this Agreement, the Limited Assignmentand Assumption Agreement, the Ancillary Transfer Documents, the Mutual Release and the ServicingAgreement.     Section 1.2 Other Terms. The following capitalized terms are defined in the followingSections of this Agreement:Term SectionAssumed Liabilities 2.2(a)Bid Letter RECITALSBuyer PREAMBLEBuyer Indemnified Party 7.2(a)Cap 7.4(c)Chosen Courts 8.7Claim Notice 7.3(a)Closing 0Closing Date 0Code 2.6(f)Deductible 7.4(b)Estimated Additional Proceeds Amount 2.4(a)Estimated Adjustments 2.4(a)Estimated Proration Amount 2.4(a)Estimated Purchase Price 2.3(a)Excluded Assets RECITALSFinal Additional Proceeds Amount 2.4(d)
 

 
Term SectionFinal Proration Amount 2.4(d)Firm Bid Price 2.3(a)GMAC MHF Note 2.2(c)Indemnified Party 7.3(a)Indemnifying Party 7.3(a)Independent Accounting Firm 2.4(e)Losses 7.2(a)Model Homes 3.1(e)(ii)Notice of Dispute 2.4(d)Outside Date 6.1(b)Owner 2.6(f)Party PREAMBLEPool RECITALSPost-Closing Statement 2.4(c)Proceeding 7.3(a)Required Seller Consents 3.1(c)ResCap PREAMBLEResCap Indemnified Party 7.2(b)Retained Liabilities 2.2(b)Sale 2.1Seller PREAMBLESeller’s Certificate 2.4(a)Servicing Agreement 4.3Subsidiary PREAMBLESubject Asset RECITALSThird-Party Claim 7.3(a)Transfer Taxes 2.8     Section 1.3 Other Definitional Provisions. Unless the express context otherwise requires:          (a) the words “hereof”, “herein”, and “hereunder” and words of similar import, when used inthis Agreement, shall refer to this Agreement as a whole and not to any particular provision ofthis Agreement;          (b) the terms defined in the singular have a comparable meaning when used in the plural, andvice versa;          (c) the terms “Dollars” and “$” mean United States Dollars;          (d) references herein to a specific Section, Subsection or Exhibit shall refer, respectively,to Sections, Subsections or Exhibits of this Agreement;          (e) wherever the word “include,” “includes,” or “including” is used in this Agreement, itshall be deemed to be followed by the words “without limitation;” and
 

 
          (f) references herein to any gender includes each other gender.ARTICLE IIPURCHASE AND SALE OF INTERESTS     Section 2.1 Sale of Interests. On the terms and subject to the conditions set forthherein, at the Closing, Seller shall sell, convey, transfer, assign and deliver to Buyer, and Buyershall purchase from Seller, all of the right, title and interest of Seller in and to the Interests,free and clear of all Encumbrances (the “Sale”).     Section 2.2 Assumed Liabilities; Retained Liabilities; Cancellation of GMAC MHF Note.          (a) On the terms and subject to the conditions set forth herein and in the Limited Assignmentand Assumption Agreement (to the extent applicable), at the Closing, Subsidiary shall assume orretain, as applicable, perform and discharge when due (i) all Liabilities in respect of the Pool 1MSRA and the Note allocated to Subsidiary pursuant to the Limited Assignment and AssumptionAgreement, (ii) all Liabilities in respect of the Pool 2 MSRA (but only to the extent of theobligations thereunder arising from and after the Closing Date as a result of post-Closingownership and operation of the Subject Assets), and (iii) all Liabilities to the extent, but solelyto the extent, included in the calculation of the Proration Amount in accordance with ExhibitD (collectively, the “Assumed Liabilities”).          (b) From and after the Closing, Seller shall assume or retain, as applicable, perform anddischarge when due all Liabilities that exist, relate to or arise out of (i) all Liabilities inrespect of the Pool 1 MSRA and the Note allocated to Seller pursuant to the Limited Assignment andAssumption Agreement, (ii) the ownership of the Interests or any of the Subject Assets or theoperation of the businesses or assets of Subsidiary or DOA Affiliate (including with respect toobligations and liabilities under the Pool 2 MSRA except to the extent assumed or retained bySubsidiary pursuant to Section 2.2(a)(ii)) prior to or as of the Closing (except to theextent, but solely to the extent, included in the calculation of the Proration Amount in accordancewith Exhibit D), (iii) the Excluded Assets, or (iv) any of the matters specified inSection 2.2 of either of the ResCap Disclosure Letters (the “RetainedLiabilities”). Notwithstanding anything to the contrary herein, neither Buyer nor Subsidiaryshall assume or have any responsibility of any nature with respect to any Retained Liabilities.          (c) Prior to the Closing, ResCap and Buyer shall take, or shall cause their respectivecontrolled Subsidiaries to take, all actions necessary to extinguish that certain loan agreementand revolving note between KBOne, LLC and GMAC MHF referenced in the Note (the “GMAC MHFNote”) in full without any liability to Subsidiary, Buyer, ResCap, Seller, KB One, LLC or GMACMHF.     Section 2.3 Purchase Price.          (a) On the terms and subject to the conditions set forth herein, at the Closing, inconsideration of the sale of the Interests, Buyer shall pay to Seller an amount (the “Estimated
 

 
Purchase Price”) in cash equal to: (i) $80,070,000 (the “Firm Bid Price”),(ii) as adjusted downward, for the Adjustment Amount, (iii) as adjusted upward or downward, for theEstimated Proration Amount, and (iv) as adjusted downward, for the Estimated Additional ProceedsAmount.          (b) The allocation of the Firm Bid Price among the Subject Assets shall be allocated inproportion to the value ascribed to each Subject Asset as set forth on Exhibit C hereto.The allocation of the Final Proration Amount and Final Additional Proceeds Amount among the SubjectAssets shall be in accordance with a schedule to be prepared in good faith by Buyer and deliveredto Seller within 30 calendar days after the final determinations of the Final Proration Amount andthe Final Additional Proceeds Amount pursuant to Section 2.4 and shall be based on theunderlying Subject Asset directly related thereto. Seller shall have the right to review suchschedule and provide comments thereto which shall be considered in good faith by Buyer.     Section 2.4 Adjustments to the Firm Bid Price.          (a) No later than one Business Day prior to the Closing Date, Seller shall prepare and deliverto Buyer a certificate (the “Seller’s Certificate”) that sets forth Seller’s good faithestimate (together with reasonably detailed back-up data to support such estimate) of (i) theProration Amount (“Estimated Proration Amount”) and (ii) the Additional Proceeds Amount(the “Estimated Additional Proceeds Amount” and, together with the Estimated ProrationAmount, the “Estimated Adjustments”). The calculation of the Estimated Proration Amountshall be prepared in accordance with Exhibit D. The calculation of the Estimated AdditionalProceeds Amount shall be prepared in accordance with the definition of “Additional ProceedsAmount”.          (b) During the preparation and calculation of the Estimated Adjustments, Seller shall, andResCap shall cause Seller to, afford Buyer and its representatives a reasonable opportunity toreview the preparation of Estimated Adjustments; and thereafter, reasonable access to the books andrecords of Seller and Subsidiary to confirm such calculation.          (c) As promptly as practicable, but in no event later than thirty days following the ClosingDate, Seller shall prepare and deliver to Buyer a statement (the “Post-Closing Statement”)that sets forth Seller’s calculation (together with reasonably detailed back-up data to supportsuch calculation) of (i) the Proration Amount and (ii) the Additional Proceeds Amount. Thecalculation of the Proration Amount as set forth on the Post-Closing Statement shall be prepared inaccordance with Exhibit D. The calculation of the Additional Proceeds Amount as set forthon the Post-Closing Statement shall be prepared in accordance with the definition of “AdditionalProceeds Amount”.          (d) Except as set forth below in this Section 2.4, the Post-Closing Statement and thecalculations of the Proration Amount and Additional Proceeds Amount shall be deemed to be and shallbe final, binding and conclusive on the Parties hereto. Both the Post-Closing Statement and thecalculations of Proration Amount and Additional Proceeds thereon shall be deemed final for thepurposes of this Section 2.4 upon the earlier of (i) the failure of Buyer to deliver Sellera Notice of Dispute within thirty days of the receipt of the Post-Closing Statement, (ii) theresolution of all disputes, pursuant to this Section 2.4, by Buyer and Seller, or (iii) the
 

 
resolution of all disputes, pursuant to this Section 2.4, by the IndependentAccounting Firm. “Final Proration Amount” shall mean the Proration Amount as finallydetermined pursuant to this Section 2.4. “Final Additional Proceeds Amount” shallmean the Additional Proceeds Amount as finally determined pursuant to this Section 2.4.“Notice of Dispute” means a written notice from Buyer that disputes Seller’s calculation ofany of the Proration Amount and/or Additional Proceeds Amount as set forth on the Post-ClosingStatement.          (e) In the event a Notice of Dispute is delivered, Buyer and Seller shall cooperate in goodfaith to attempt to reconcile their differences, and any mutually agreed resolution by them as toany disputed amounts shall be final, binding and conclusive on the Parties hereto. If Buyer andSeller are unable to reach such a resolution within thirty days of the delivery of the Notice ofDispute, Buyer and Seller shall submit the items remaining in dispute for resolution to anindependent accounting firm of national reputation mutually acceptable to Seller and Buyer (the“Independent Accounting Firm”). If a Notice of Dispute is not delivered on or before theexpiration of such 30-day period (or if Buyer notifies Seller in writing that there is no suchdispute), the calculations prepared by Seller shall be deemed to be final, binding and conclusive.In the event a Notice of Dispute is timely delivered with respect to only certain of the amounts orcertain portions of the amounts set forth therein but not others, then any undisputed amount orportion thereof shall be deemed to be final, binding and conclusive.          (f) The Independent Accounting Firm shall be instructed to render its written determination assoon as reasonably possible (which the Parties hereto agree should not be later than sixty daysfollowing the date on which the items remaining in dispute are submitted to the IndependentAccounting Firm) to Seller and Buyer. The Independent Accounting Firm may only resolvedisagreements as to matters covered by the Notice of Dispute. All matters not covered by theNotice of Dispute shall be deemed to be final, binding and conclusive. The Independent AccountingFirm’s determination shall be final, binding and conclusive on the Seller and Buyer. Buyer andSeller shall promptly provide their assertions regarding the Proration Amount and AdditionalProceeds Amount, as the case may be, in writing to the Independent Accounting Firm, with a copy toeach other. The Independent Accounting Firm shall conduct its determination activities in a mannerwherein all materials submitted to it are held in confidence and shall not be disclosed to anythird parties (other than any designated authorized representative of a Party). The Parties agreethat judgment may be entered upon the determination of the Independent Accounting Firm in any courthaving jurisdiction over the Party against which such determination is to be enforced. The fees anddisbursements of the Independent Accounting Firm shall be allocated between Seller and Buyer in thesame proportion that the aggregate amount of such remaining disputed items so submitted to theIndependent Accounting Firm that is unsuccessfully disputed by each such Party as finallydetermined by the Independent Accounting Firm bears to the total amount of such remaining disputeditems. In no event may the Independent Accounting Firm’s resolution of any difference be for anamount which is outside the range of disagreement between Buyer’s position and Seller’s position.Buyer and Seller shall provide the Independent Accounting Firm with access to all books and recordsreasonably requested by the Independent Accounting Firm in connection with this Section2.4(f) (subject to the execution of customary access letters, if requested, with respect to thework product of a Party’s independent accountant).
 

 
          (g) Upon final determination of the Final Proration Amount, then:               (A) in the event that the Final Proration Amount exceeds the Estimated Proration Amount, thenSeller shall pay such excess amount to Buyer within three Business Days of such determination; and               (B) in the event that the Final Proration Amount is less than the Estimated Proration Amount,then Buyer shall pay such excess amount to Seller within three Business Days of such determination.          (h) Upon final determination of the Final Additional Proceeds Amount, then:               (A) in the event that the Final Additional Proceeds Amount exceeds the Estimated AdditionalProceeds Amount, then Seller shall pay such excess amount to Buyer within three Business Days ofsuch determination; and               (B) in the event that the Final Additional Proceeds Amount is less than the EstimatedAdditional Proceeds Amount, then Buyer shall pay such excess amount to Seller within three BusinessDays of such determination.          (i) Payment shall be made pursuant to subsections (g) and (h) of thisSection 2.4 as follows: (i) by wire transfer of immediately available funds to the bankaccount designated in writing by the recipient at least two Business Days prior to the expirationof the applicable three-Business Day period referenced in subsections (g) and (h)of this Section 2.4 and (ii) to the extent such payment is not made within the applicablethree-Business Day period, interest shall be due and payable on such payment at an annual rateequal to the Reference Rate from and after the Closing Date to and including the date such paymentis fully made; provided, that such amounts shall be netted to the extent payable by each ofSeller and Buyer to the other Party.     Section 2.5 Closing. Subject to the terms and conditions of this Agreement, theconsummation of the Sale (the “Closing”) shall take place at the offices of Schulte Roth & ZabelLLP, 919 Third Avenue, New York, New York 10022 at 10:00 A.M. New York City time, on September 30,2008, except to the extent any of the conditions set forth in Article V (other than thoseconditions that by their nature are to be satisfied at the Closing but subject to the fulfillmentor waiver of those conditions) have not been satisfied or waived by such date, in which case theClosing shall occur on the second Business Day following the date on which the conditions set forthin Article V (other than those conditions that by their nature are to be satisfied at the Closingbut subject to the fulfillment or waiver of those conditions) have been satisfied or waived, or atsuch other time and place as the Parties hereto may mutually agree. At the Closing, the Partiesshall take all actions required under this Article II and all other actions not previously takenbut required to be taken hereunder at or prior to the Closing. The date on which the Closingoccurs is called the “Closing Date”.     Section 2.6 Deliveries by Seller. At the Closing, Seller shall deliver (or cause to bedelivered) to Buyer:          (a) the certificate required to be delivered pursuant to Section 5.3(d);
 

 
          (b) an executed counterpart to the (i) Servicing Agreement, (ii) Limited Assignment andAssumption Agreement, (iii) the Mutual Release and (iv) the Ancillary Transfer Documents;          (c) the written resignations, effective as of the Closing, of the current officers, managingmember, manager or members of the board of managers or directors, as applicable, of Subsidiary;          (d) all Contracts and other documents in the possession or control of ResCap or any of itscontrolled Affiliates exclusively related to, and copies of all Contracts and other documents inthe possession or control of ResCap or any of its controlled Affiliates primarily related to orotherwise material to, Subsidiary’s ownership or operation of the Subject Assets (including,without limitation, permits, licenses, approvals, certificates of occupancy, plans, specifications,guaranties and warranties);          (e) evidence of extinguishment of the GMAC MHF Note in accordance with Section 2.2(c);          (f) an affidavit sworn by Seller stating, under penalty of perjury, that its sole owner forU.S. Federal tax purposes (that is not disregarded) (the “Owner”) is not a foreign personas defined in Section 1445 of the U.S. Internal Revenue Code (the “Code”) and providingOwner’s United States tax identification number;          (g) any Transfer Tax documentation required to be executed by Seller or Subsidiary inconnection with the payment of any Transfer Taxes, if any;          (h) evidence of the receipt of all Required Seller Consents;          (i) the minute books, the interest ledger, and books and records of Subsidiary and such otherdocuments and instruments of Subsidiary as Buyer may reasonably request related to the ownership oroperation of Subsidiary; and          (j) such other documents and instruments as may be reasonably and customarily required in theapplicable jurisdiction to consummate the Sale pursuant to this Agreement.     Section 2.7 Deliveries by Buyer. At the Closing, Buyer shall deliver (or cause to bedelivered) to Seller:          (a) an amount in cash equal to the Estimated Purchase Price in immediately available funds bywire transfer to an account or accounts that have been designated by ResCap no later than threeBusiness Days prior to the Closing Date;          (b) the certificate required to be delivered pursuant to Section 5.2(c);          (c) an executed counterpart to the (i) Servicing Agreement, (ii) the Limited Assignment andAssumption Agreement, (iii) the Mutual Release and (iv) the Ancillary Transfer Documents; and
 

 
          (d) such other documents and instruments as may be reasonably and customarily required toconsummate the Sale pursuant to this Agreement.     Section 2.8 Closing Costs. Except as otherwise set forth herein, each party shall beresponsible for its respective legal costs. Seller shall pay all excise, sales, use, value added,registration stamp, recording, documentary, conveyancing, franchise, transfer, gains, transactionprivilege tax and similar Taxes, levies, charges and fees (collectively, “Transfer Taxes”) incurredin connection with the Sale pursuant to this Agreement. Buyer shall pay (i) all costs associatedwith its due diligence; and (ii) all title insurance premiums and charges, including endorsements,and all title examination costs for any and all title work Buyer orders. The obligations of theparties to pay applicable closing charges shall survive the termination of this Agreement.ARTICLE IIIREPRESENTATIONS AND WARRANTIES      Section 3.1 Representations and Warranties of ResCap and Seller. ResCap and Seller, jointlyand severally, represent and warrant to Buyer as of the date hereof and as of the Closing Date(except with respect to any representation or warranty made as of a specified date, which shall bemade only as of such date) that:          (a) Due Organization. Each of ResCap, Seller and Subsidiary is duly formed, validlyexisting and in good standing under the laws of its jurisdiction of formation. Each of ResCap andSeller has all requisite limited liability company power and authority to enter into this Agreementand to carry out its respective obligations hereunder and to consummate the transactionscontemplated hereby. Subsidiary has the requisite limited liability company power and authority toown its assets and to carry on its business as presently conducted and is duly qualified to dobusiness and is in good standing (where such concept exists) as a foreign limited liability companyin each jurisdiction in which the nature of its business or the ownership or leasing of itsproperties makes such qualification necessary.          (b) Binding Effect. The execution and delivery of this Agreement, the performance ofits obligations hereunder and the consummation of the transactions contemplated hereby have beenduly authorized by all requisite limited liability company action on the part of each of ResCap,Seller and Subsidiary. This Agreement has been duly executed and delivered by each of ResCap,Seller and Subsidiary. This Agreement, assuming the due authorization, execution and delivery byBuyer, constitutes a legally binding obligation of each of ResCap, Seller and Subsidiary,enforceable against each of ResCap, Seller and Subsidiary in accordance with its terms, subject tobankruptcy, insolvency, receivership, moratorium, reorganization or similar laws affecting therights of creditors generally. As of the Closing Date with respect to the Limited Assignment andAssumption Agreement, Ancillary Transfer Documents, Mutual Release and the Servicing Agreement (i)the execution and delivery of each such Transaction Document, the performance of their respectiveobligations thereunder and the consummation of the transactions contemplated thereby shall havebeen duly authorized by all requisite limited liability company power on the part of each of ResCapand Seller; (ii) each such Transaction Document shall have been duly executed and delivered by eachof ResCap and Seller; and (iii) each such Transaction Document shall constitute a legally bindingobligation of each of ResCap
 

 
and Seller, enforceable against each such entity in accordance with its terms, subject tobankruptcy, insolvency, receivership, moratorium, reorganization or similar laws affecting therights of creditors generally.          (c) Consents and Approvals. No consent, approval, waiver, authorization, notice orfiling is required to be obtained from or made with any Governmental Entity or self-regulatoryorganization or any other Person by ResCap or any of its controlled Affiliates, including Sellerand Subsidiary, in connection with the execution, delivery and performance of any of theTransaction Documents, other than those set forth in Section 3.1(c) of the ResCap DisclosureLetters (the “Required Seller Consents”).          (d) Non-Contravention. Assuming the receipt of the Required Seller Consents, theexecution, delivery and performance of this Agreement by ResCap, Seller and Subsidiary and byResCap, Seller and each of their respective controlled Affiliates of the other TransactionDocuments (to the extent executed and delivered), and the consummation of the transactionscontemplated hereby and thereby, do not and will not (i) violate any provision of theorganizational documents of the applicable entity, (ii) result in the material breach of, orconstitute a material default under, or result in the termination, cancellation, modification oracceleration (whether after the filing of notice or the lapse of time or both) of any materialright or obligation of ResCap or any of its controlled Affiliates, including Seller and Subsidiary,under, or result in a loss of any material benefit to which such Party is entitled under, anymaterial Contract (including the MSRAs), or result in the creation of any Encumbrance upon any ofthe Interests or the Subject Assets, or (iii) violate or result in a breach of or constitute adefault under any Law to which ResCap or any of its controlled Affiliates, including Seller andSubsidiary, is subject.          (e) Subject Assets.          (i) Seller has full right to sell, assign and transfer all of its right, title andinterest in the Interests to Buyer, subject to receipt of the Required Seller Consents.Seller is the owner of the Interests, free and clear of any Encumbrances of any naturewhatsoever (except for any such Encumbrances being released prior to or effective upon theClosing). At the Closing, Seller shall transfer all right, title and interest in theInterests to Buyer, free and clear of any Encumbrances of any kind (other than those imposedby applicable securities Laws), and, except for those Ancillary Transfer Documents executedand delivered to Buyer by Seller at Closing, no novations or assignments shall be necessaryto vest Buyer at the Closing with such right, title and interest. The Interests constituteall of the outstanding membership interests (or other form of equity- or equity-likeinterests) of Subsidiary. Subsidiary has good and valid title to each Subject Asset, freeand clear of any Encumbrances of any nature whatsoever except for Permitted Encumbrances andany other Encumbrances being released prior to or effective upon the Closing. For eachSubject Asset, it was the policy of Subsidiary or Subsidiary’s predecessor in title toobtain a title insurance policy in favor of (A) Subsidiary, or (b) a predecessor-in-title toSubsidiary, and each predecessor-in-title to Subsidiary has transferred the Subject Asset toa subsequent predecessor-in-title to Subsidiary or to Subsidiary using a general warrantydeed. The Services to be performed by ResCap or its controlled Affiliates under theServicing Agreement, shall, at Closing, constitute all
 

 
services necessary to operate the Subject Assets in all material respects as currentlyoperated. The sole business conducted by Subsidiary is and has been the ownership of theSubject Assets, the Excluded Assets and the model homes sold by Subsidiary prior to June 30,2008, and, except for obligations incurred in the ordinary course of business consistentwith past practice, pursuant to the transactions contemplated hereby or as otherwise setforth in Section 3.1(e)(i) of the ResCap Disclosure Letters, Subsidiary has notincurred any Liabilities other than Retained Liabilities, Assumed Liabilities and thoseLiabilities satisfied in full prior to the Closing. None of the Assets have been sold,transferred, conveyed or otherwise disposed of since the Cut-Off Date, other than theExcluded Assets. Subsidiary has no employees.          (ii) Except as set forth in Section 3.1(e)(ii) of the ResCap DisclosureLetters, there are no pending or, to ResCap’s Knowledge, threatened Claims concerningany Subject Asset that constitutes real property (the “Model Homes”) or the MSRAs orthe obligations or rights of ResCap or any of its controlled Affiliates or other Persons inand to the Model Homes or under the MSRAs. Neither ResCap nor any of its controlledAffiliates has received any written notice from any Governmental Entity that there currentlyis any pending condemnation or eminent domain proceeding relating to the Model Homes, orthat any such proceeding is currently contemplated. To ResCap’s Knowledge, except as wouldnot reasonably be expected to result, individually or in the aggregate, in materialliability to Subsidiary or Buyer: (i) each Model Home has been used and occupied only as amodel home and/or as a sales office for the marketing of other homes in the applicableCommunity or for storage of items relating to the applicable Community in accordance withapplicable Laws and for no other purpose, (ii) the construction of the Model Homes and allimprovements in the Communities in which the Model Homes are located (or the phase of theCommunity in which the Model Home is located if the Community is being developed in phases)have been completed in compliance with applicable Law to the extent necessary to allow foruse of the Model Homes as single family residences following Retrofit (as defined in theMSRAs), (iii) except as set forth in Section 3.1(e)(ii) of the ResCap DisclosureLetters, the applicable builder has complied with all state disclosure requirements andcommunity covenants in respect of the Subject Assets and (iv) no property underlying any ofthe Model Homes contains Hazardous Materials in amounts that would violate applicable Law.          (iii) Each MSRA is in full force and effect and, upon the execution and delivery of theLimited Assignment and Assumption Agreement with respect to the Pool 1 MSRA, will be thevalid and binding obligation of Subsidiary to the extent assumed thereby and, to ResCap’sKnowledge, the other parties thereto are in compliance in all material respects with allterms and conditions in the MSRAs and, except as set forth in Section 3.1(e)(iii) of theResCap Disclosure Letters, there does not exist under the MSRAs any material violation,breach or event of default, or alleged material violation, breach or event of default, orevent or condition that, after notice or lapse of time or both, would constitute a materialviolation, breach or event of default thereunder on the part of Subsidiary or, to ResCap’sKnowledge, any other party to the MSRAs. The MSRAs, the Note and the Guaranty constitutethe only Contracts in effect between ResCap or any of its controlled Affiliates, on the onehand, and the applicable builder or any of its
 

 
Affiliates, on the other hand, concerning the Subject Assets. As of the Closing, otherthan the MSRAs, the Note and the Guaranty, there are no Contracts or indebtedness to whichResCap or any of its controlled Affiliates is a party with respect to which the SubjectAssets are bound.          (f) Liabilities. Except for those items included as a reduction to the purchase pricein the calculation of the Proration Amount in accordance with Exhibit D, all liabilitiesrequired to be paid prior to or as of 12:01 a.m. (New York City Time) on the Closing Date by ResCapor any of its controlled Affiliates, including Subsidiary, in respect of any of the Interests orSubject Assets (including under the MSRAs, the Note or the Guaranty) have been fully paid by ResCapor the applicable controlled Affiliate. Without limiting the generality of the previous sentence,(i) since its formation, Subsidiary has always been and is an entity disregarded from its soleowner for U.S. Federal tax purposes and no deficiency for any Taxes has been asserted or assessedwith respect to any of the Interests or Subject Assets that has not been satisfied by payment,settled or withdrawn, (ii) there is no audit, claim or controversy currently asserted or threatenedin writing with respect to the any of the Interests or Subject Assets in respect of any Taxes and(iii) there are no Encumbrances or security interests on any of the Interests or Subject Assetsthat arose in connection with any failure to pay any Taxes.          (g) Brokers/Finders. No broker, investment banker, financial advisor or other Personis entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission inconnection with the Interests (or the transfer of control of any of the Subject Assets as a resultthereof) pursuant to this Agreement based upon arrangements made by or on behalf of ResCap or anyof its controlled Affiliates with respect to which Buyer or Subsidiary has any obligation orliability.          (h) Non-Foreign Person. Seller’s sole owner for U.S. Federal tax purposes is not a“foreign person” for purposes of Section 1445 of the Code.          (i) No Other Representations or Warranties. Except for the representations andwarranties contained in this Section 3.1, neither ResCap or any of its controlledAffiliates or other Persons makes any express or implied representation or warranty on behalf ofResCap or Seller or with respect to the Interests or Assets.     Section 3.2 Representations and Warranties of Buyer. Buyer represents and warrants toResCap as of the date hereof and as of the Closing Date (except with respect to any representationor warranty made as of a specified date, which shall be made only as of such date) that:          (a) Due Organization. Buyer is duly organized, validly existing and in good standingunder the laws of its jurisdiction of formation and has all requisite limited liability companypower and authority to enter into this Agreement and to carry out its obligations hereunder andthereunder and to consummate the transactions contemplated hereby and thereby.          (b) Binding Effect. The execution and delivery of this Agreement, the performance ofits obligations hereunder and the consummation of the transactions contemplated hereby have beenduly authorized by all requisite limited liability company action of Buyer.
 

 
This Agreement has been duly executed and delivered by Buyer. This Agreement, assuming thedue authorization, execution and delivery by ResCap, Seller and Subsidiary, constitutes a legallybinding obligation of Buyer, enforceable against Buyer in accordance with its terms, subject tobankruptcy, insolvency, receivership, moratorium, reorganization or similar laws affecting therights of creditors generally. As of the Closing Date with respect to the Limited Assignment andAssumption Agreement, Ancillary Transfer Documents, Mutual Release and the Servicing Agreement, (i)the execution and delivery of each such Transaction Document, the performance of Buyer’sobligations thereunder and the consummation of the transactions contemplated thereby shall havebeen duly authorized by all requisite limited liability company or corporate power, as applicable,on the part of Buyer; (ii) each such Transaction Document shall have been duly executed anddelivered by Buyer; and (iii) each such Transaction Document shall constitute a legally bindingobligation of Buyer, enforceable against Buyer in accordance with its terms, subject to bankruptcy,insolvency, receivership, moratorium, reorganization or similar laws affecting the rights ofcreditors generally.          (c) Consents and Approvals. No consent, approval, waiver, authorization, notice orfiling is required to be obtained from or made with any Governmental Entity or self-regulatoryorganization or any other Person, by Buyer in connection with the execution, delivery andperformance of any of the Transaction Documents.          (d) Non-Contravention. The execution, delivery and performance by Buyer of each ofthe Transaction Documents, and the consummation of the transactions contemplated hereby andthereby, do not and will not (i) violate any provision of the organizational documents of Buyer,(ii) result in the material breach of, or constitute a material default under, or result in thetermination, cancellation, modification or acceleration (whether after the filing of notice or thelapse of time or both) of any material right or obligation of Buyer under, or result in a loss ofany material benefit to which Buyer is entitled under, any material Contract, or result in thecreation of any Encumbrance upon any of assets of Buyer, or (iii) violate or result in a breach ofor constitute a default under any Law to which Buyer is subject.          (e) Brokers/Finders. No broker, investment banker, financial advisor or other Personis entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission inconnection with the transfer of Interests (or the transfer of control of any of the Subject Assetsas a result thereof) pursuant to this Agreement based upon arrangements made by or on behalf ofBuyer with respect to which ResCap or any of its controlled Affiliates has any obligation orliability.          (f) No Other Representations or Warranties. Except for the representations andwarranties contained in this Section 3.2, neither Buyer nor any of its Affiliates or otherPersons makes any express or implied representation or warranty on behalf of Buyer.ARTICLE IVCOVENANTS      Section 4.1 Commercially Reasonable Efforts.
 

 
          (a) Each of the Parties shall cooperate and use commercially reasonable efforts to take, orcause to be taken, all actions and to do, or cause to be done, and assist and cooperate with theother Parties to this Agreement in doing, all things necessary or desirable under applicable Law toconsummate, in the most expeditious manner practicable, the transactions contemplated by thisAgreement. Without limiting the generality of the foregoing, ResCap shall use commerciallyreasonable efforts to obtain, prior to the Closing Date, all Required Seller Consents;provided, that, ResCap shall not have any obligation to pay any material fee to any Personfor the purpose of obtaining any Required Seller Consent or any material costs and expenses of anyPerson resulting from the process of obtaining any Required Seller Consent. Neither Buyer nor anyof its Affiliates shall have any obligation to obtain any Required Seller Consents;provided, that, Buyer shall, and shall cause its Affiliates to, provide reasonablecooperation in connection with ResCap’s efforts to obtain such Required Seller Consents. Inconnection with seeking or obtaining any Required Seller Consent, neither ResCap nor any of itscontrolled Affiliates shall consent to the imposition of any limitations, restrictions orconditions applicable to Buyer, Subsidiary or any of the Subject Assets (including any modificationof the MSRAs).     Section 4.2 Additional Covenants.          (a) From the date of this Agreement through the Closing, (i) Seller shall not, directly orindirectly, sell or enter into any definitive agreement to sell any of the Interests or the SubjectAssets, and (ii) neither Seller nor any of its Affiliates shall, directly or indirectly, terminate,amend or modify the MSRAs.          (b) From the date of this Agreement through the period ending 60 days after the Closing,Seller shall use its reasonable best efforts to perform its obligation set forth in Section4.2(b) of the ResCap Disclosure Letters and, if it fails to satisfy such obligations duringthat period, Buyer and Subsidiary shall have the rights described therein.     Section 4.3 Servicing and Asset Management. At the Closing, Buyer, Subsidiary and ResCapshall enter into the servicing agreement attached hereto as Exhibit E (the “Servicing Agreement”).From and after the Closing, ResCap shall direct the applicable builder to pay to Buyer inaccordance with Buyer’s payment instructions all amounts due to “Owner” with respect to the SubjectAssets under the MSRAs, except as otherwise requested in writing by Buyer in connection withResCap’s performance of services pursuant to the Servicing Agreement. If at any time after theClosing, ResCap or any of its controlled Affiliates receives proceeds or other payments in respectof any of the Subject Assets, ResCap shall, or shall cause its controlled Affiliate to (ifapplicable), (i) accept and hold such proceeds or payments in trust for the account and solebenefit of Buyer and have no equitable or beneficial interest in any such proceeds or payments and(ii) deliver such proceeds and payments (free of any withholding, setoff, recoupment or deductionof any kind) promptly (but in any event no later than three Business Days after the date on whichsuch Person receives such proceeds or payment) to Buyer or at Buyer’s request, to Subsidiary.     Section 4.4 Excluded Asset Sales. Buyer acknowledges that ResCap and Seller shall retainall beneficial ownership interest in any Excluded Assets that are not sold to a third party beforeClosing, notwithstanding Subsidiary’s continuing record ownership of such Excluded
 

 
Assets after the Closing. In accordance therewith, Subsidiary shall, and Buyer shall causeSubsidiary to, (a) sell, transfer or otherwise dispose of the Excluded Assets, including completionof any sale pursuant to any outstanding contract of sale or, if any such contract of saleterminates, transfer to Seller or any of its Affiliates or any third Person at Seller’s expense allright, title and interest in such Excluded Asset, in each case in accordance with the writteninstructions of ResCap or Seller, and (b) to collect for the account of ResCap and/or Seller allpayments and other benefits under the MSRAs or the Note relating to such Excluded Assets, includingany lease payments with respect to such Excluded Assets pursuant to the MSRAs or any proceedsreceived upon the sale of any Excluded Asset. If at any time after the Closing, Subsidiary, Buyeror any of their respective controlled Affiliates receives proceeds or other payments in respect ofany of the Excluded Assets, Buyer and Subsidiary shall, or shall cause the controlled Affiliate to(if applicable), (i) accept and hold such proceeds or payments in trust for the account and solebenefit of ResCap and have no equitable or beneficial interest in any such proceeds or payments and(ii) deliver such proceeds and payments (free of any withholding, setoff, recoupment or deductionof any kind) promptly (but in any event no later than three Business Days after the date on whichsuch Person receives such proceeds or payment) to ResCap. From and after the Closing, Subsidiaryshall not, and Buyer shall cause Subsidiary not to, cause or permit any Excluded Asset to becomesubject to any Encumbrance prior to the sale thereof pursuant to this Section 4.4.Notwithstanding anything to the contrary set forth in this Section 4.4, (i) Subsidiary shall beunder no obligation to (x) take any action that would be in violation of applicable Law or anycontract with respect to which Subsidiary is bound or subject or (y) except as set forth in thoseContracts executed and delivered to Buyer prior to the date hereof, or in any other Contract(including deeds) substantially in the form attached hereto as Exhibit H, make any representationsor warranties or provide any indemnification in respect of any of the Excluded Assets or otherwiserelating to any sale or transfer thereof, and (ii) any Liability incurred by Subsidiary inconnection with any sale, transfer, assignment or other disposition of any Excluded Assets orotherwise arising from Subsidiary’s compliance with this Section 4.4 shall constitute “RetainedLiabilities” for purposes of Section 7.2(a)(iii).     Section 4.5 Tax Matters.          (a) Seller shall be liable for and Seller shall pay, or cause to be paid, any and all Taxesapplicable to the Interests or Subject Assets attributable to periods (or portions thereof) endingon or before the Closing Date. Buyer shall be liable for and shall pay all Taxes applicable to theInterests or Subject Assets attributable to periods (or portions thereof) beginning on the dayafter the Closing Date.          (b) Except with respect to Taxes included in the calculation of the Proration Amounthereunder, Seller or Buyer, as the case may be, shall promptly reimburse any Tax paid by the otherparty all or a portion of which Tax is the responsibility of Seller or Buyer in accordance with theterms of this Section 4.4. Within a reasonable time prior to the payment of any such Tax,the party paying such Tax shall give notice to the other party of the Tax payable and the portionthat is the liability of each party, although failure to do so shall not relieve the other partyfrom its liability hereunder except to the extent that it is materially prejudiced by such delay.
 

 
          (c) After the Closing, Seller and Buyer shall, as reasonably requested by the other, (i)assist the other party in preparing any Tax Returns relating to the Interests or Subject Assetswhich such other party is responsible for preparing and filing; (ii) cooperate fully in preparingfor any audit of, or dispute with taxing authorities regarding, and any judicial or administrativeproceeding relating to, liability for Taxes, in the preparation or conduct of litigation orinvestigation of claims, and in connection with the preparation of financial statements or otherdocuments to be filed with any taxing authority, in each case with respect to the Interests orSubject Assets; (iii) make available to the other and to any taxing authority as reasonablyrequested all information, records, and documents relating to Taxes relating to the Interests orSubject Assets; (iv) provide timely notice to the other party in writing of any pending orthreatened Tax audits or assessments relating to the Interests or Subject Assets for taxableperiods for which the other party is responsible under this Section 4.4; and (v) furnishthe other party with copies of all correspondence received from any taxing authority in connectionwith any taxable audit or information request with respect to any Tax periods for which the otheris responsible under this Section 4.4. Until the seventh anniversary of the Closing Date,Seller will, to the extent necessary in connection with any Taxes (including the tax basis of anyacquired asset) or other matters relating to the Interests or Subject Assets for any period endingat or prior to the Closing, and without charge to Buyer, retain all original books, records andother documents and all electronically archived data not deliverable to Buyer at Closing related tothe Interests or Subject Assets. Any information obtained pursuant to this Section 4.4 orpursuant to any other Section hereof providing for the sharing of information or review of any TaxReturn or other schedule relating to Taxes shall be kept confidential by the Parties, except to theextent such information is required to be disclosed by Law, regulation or judicial order.          (d) Seller shall prepare and file, and Buyer shall cooperate in the preparation and filing of,all Tax Returns, if any, relating to any Transfer Taxes that become payable in connection with thetransactions contemplated by this Agreement.     Section 4.6 Further Assurances. From time to time after the Closing, each Party heretoshall, and shall cause its Affiliates, promptly to execute, acknowledge and deliver any otherassurances or documents or instruments of transfer reasonably requested by the other Party heretoand necessary for the requesting Party to satisfy obligations hereunder or to obtain the benefitsof the transactions contemplated hereby.ARTICLE VCONDITIONS TO CLOSING     Section 5.1 Conditions to the Obligations of each of the Parties. The obligations of theParties hereto to effect the Closing are subject to the satisfaction of the following conditions:          (a) No Injunctions or Restraints; Illegality. No judgment, order, injunction or decreeissued by any court or agency of competent jurisdiction or other legal restraint or prohibitionpreventing the transactions contemplated by this Agreement or the other Transaction Documents shallbe in effect and no statute, rule, regulation, order, injunction or decree shall have been enacted,promulgated or enforced by any Governmental Entity that prohibits or makes
 

 
illegal the consummation of the transactions contemplated by this Agreement or the otherTransaction Documents.     Section 5.2 Conditions to the Obligations of ResCap and Seller. The obligations of ResCapand Seller to effect the Closing are subject to the satisfaction of the following conditions:          (a) Representations and Warranties. The representations and warranties of Buyercontained in this Agreement shall be true and correct (without giving effect to any qualificationsas to materiality or similar qualifications therein) in all material respects as of the date hereofand at and as of the Closing, as if made at and as of such time (or if made as of a specific date,at and as of such date); provided, that the representations and warranties set forth inSections 3.2(a), 3.2(b) and 3.2(e) shall be true and correct in allrespects.          (b) Covenants. Buyer shall have performed in all material respects all of itsobligations hereunder required to be performed by Buyer at or prior to the Closing Date and shallhave delivered all documentation required to be delivered by Buyer pursuant to Section 2.7.          (c) Certificate. Buyer shall have delivered to ResCap a certificate, signed by a dulyauthorized representative of Buyer and dated the Closing Date, to the effect that the conditionsset forth in Sections 5.2(a) and 5.2(b) have been satisfied.     Section 5.3 Conditions to the Obligations of Buyer. The obligations of Buyer to effect theClosing are subject to the satisfaction of the following conditions:          (a) Representations and Warranties. The representations and warranties of ResCap andSeller contained in this Agreement shall be true and correct (without giving effect to anyqualifications as to materiality or similar qualifications therein) in all material respects as ofthe date hereof and at and as of the Closing, as if made at and as of such time (or if made as of aspecific date, at and as of such date); provided, that the representations and warrantiesset forth in Sections 3.1(a), 3.1(b), 3.1(e)(i), 3.1(f) and3.1(g) shall be true and correct in all respects.          (b) Covenants. ResCap and Seller shall have, and shall have caused each of theirrespective controlled Affiliates to have, performed in all material respects all of theirrespective obligations hereunder required to be performed by such Person at or prior to the ClosingDate and shall have delivered all documentation required to be delivered by ResCap or Sellerpursuant to Section 2.6.          (c) Consents and Approvals. All Required Seller Consents shall have been obtained ormade (without the imposition of any limitations, restrictions or conditions applicable to Buyer,Subsidiary, the Interests or the Subject Assets (including any modification of the MSRAs or theNote)).          (d) Certificate. ResCap and Seller shall have delivered to Buyer a certificate,signed by a duly authorized officer of ResCap and dated the Closing Date, to the effect that theconditions set forth in Sections 5.3(a) through (c) have been satisfied.
 

 
ARTICLE VITERMINATION     Section 6.1 Termination. This Agreement may be terminated at any time prior to theClosing:          (a) by written agreement of ResCap and Buyer;          (b) by any Party, upon written notice to the other Parties, in the event that the Closing doesnot occur on or before 5:00 p.m. (New York City Time) on October 6, 2008 (the “OutsideDate”); or          (c) by any Party, upon written notice to the other Parties, in the event that any Law shall beenacted or any Governmental Entity shall have issued any order, decree or injunction or taken anyother action restraining, enjoining or prohibiting any of the transactions contemplated by thisAgreement or the other Transaction Documents, and such order, decree, injunction or other actionshall have become final and nonappealable.     Section 6.2 Effect of Termination. In the event of any termination of this Agreement asprovided in Section 6.1, this Agreement (other than this Section 6.2 and Sections 8.1 through 8.11,which shall remain in full force and effect) shall forthwith become wholly void and of no furtherforce and effect.ARTICLE VIIINDEMNIFICATION      Section 7.1 Survival of Representations, Warranties and Covenants. The representations andwarranties set forth in Article III of this Agreement shall survive the Closing until the secondanniversary of the Closing Date, except that the representations and warranties set forth inSections 3.1(a), 3.1(b), 3.1(e)(i), 3.1(g), 3.2(a), 3.2(b) and 3.2(e) shall survive the Closinguntil the expiration of the applicable statute of limitations. The covenants in this Agreementshall survive the Closing in accordance with their terms.     Section 7.2 Indemnification.          (a) From and after the Closing, ResCap shall indemnify and defend Buyer, its Affiliates(including, for the avoidance of doubt, Subsidiary), managing member, officers, directors,employees, agents, successors and assigns (each a “Buyer Indemnified Party”) from andagainst any and all actions, suits, claims, proceedings, damages, losses, deficiencies,liabilities, penalties, fines, interest, costs, damages, judgments, amounts paid in settlement andexpenses (including, without limitation, the cost and expenses of any litigations, actions,judgments and settlements related thereto, and the reasonable costs and expenses of attorneys andaccountants incurred in the investigation or defense thereof or the enforcement of rightshereunder) (collectively, “Losses”) related to or arising out of any one or more of thefollowing:
 

 
          (i) any breach of any representation or warranty made by ResCap or any of itscontrolled Affiliates in this Agreement (without giving effect to any qualifications as tomateriality or similar qualifications contained in such representations or warranties);          (ii) any breach by ResCap or Seller of any covenant to be performed or complied with byResCap or Seller under this Agreement; or          (iii) the Retained Liabilities.          (b) From and after the Closing, Buyer shall indemnify and defend ResCap, its Affiliates,managing member, officers, directors, employees, agents, successors and assigns (each a “ResCapIndemnified Party”) from and against any and all Losses related to or arising out of any one ormore of the following:          (i) any breach of any representation or warranty made by Buyer in this Agreement(without giving effect to any qualifications as to materiality or similar qualificationscontained in such representations or warranties);          (ii) any breach by Buyer of any covenant to be performed or complied with by Buyerunder this Agreement;          (iii) the Assumed Liabilities; or          (iv) the ownership or use of the Subject Assets after the Closing, except to the extentsuch Losses constitute Retained Liabilities.     Section 7.3 Notice of Claim; Defense.          (a) If any third party institutes or asserts any claim, demand, investigation, action orproceeding (each of the foregoing, a “Proceeding”) against any Person entitled toindemnification under this Agreement (an “Indemnified Party”) that may give rise to Lossesfor which a party (an “Indemnifying Party”) may be liable for indemnification under thisArticle VII (a “Third-Party Claim”), then the Indemnified Party shall promptly sendto the Indemnifying Party a written notice specifying (to the extent such information is reasonableavailable) the nature of such claim and, if available, the estimated amount of all relatedLiabilities, which estimate shall be subject to change (a “Claim Notice”). TheIndemnifying Party shall be relieved of its indemnification obligations under this ArticleVII to the extent that it is materially prejudiced by the failure of the Indemnified Parties toprovide a timely and adequate Claim Notice. If a Claim Notice has been given prior to theexpiration of the applicable representations and warranties, then the relevant representation andwarranties shall survive as to such claim until such claim has been finally resolved.          (b) The Indemnifying Party will have 20 days (or such lesser number of days as set forth inthe Claim Notice as may be required by court proceeding in the event of a litigation matter) afterreceipt of the Claim Notice to notify the Indemnified Party that it desires to assume andthereafter conduct the defense of the Third-Party Claim with counsel of its choice
 

 
reasonably satisfactory to the Indemnified Party, unless the Indemnified Party has notifiedthe Indemnifying Party that it has determined in good faith that (i) there is a reasonableprobability that such claim may materially and adversely affect it or its Affiliates other than asa result of money damages, (ii) a conflict of interest exists in respect of such claim, or (iii)there are specific defenses available to the Indemnified Party that are different from oradditional to those available to the Indemnifying Party and that could be adverse to theIndemnifying Party. If the Indemnifying Party assumes the defense of the Third Party Claim, itshall have conclusively established its obligation to indemnify the Indemnified Party with respectto such Third Party Claim. The Indemnified Parties may participate, at their own expense andthrough legal counsel of their choice, in any such Proceeding; provided, that theIndemnified Parties and their counsel shall reasonably cooperate with the Indemnifying Party andits counsel in connection with such Proceeding. The Indemnifying Party shall not (i) consent to,or enter into, any compromise or settlement which commits the Indemnified Party to take, or toforbear to take, any action or does not provide for a full and complete written release by suchthird party of the Indemnified Party, (ii) consent to, or enter into, any compromise or settlement,consent to the entry of any judgment, or admit any liability or wrongdoing with respect to anyThird-Party Claim unless it involves only the payment of money damages all of which will be borneby the Indemnifying Party in accordance with its indemnification obligations hereunder and does notimpose an injunction or other equitable relief upon the Indemnified Party or otherwise involve anyadmission of liability or wrongdoing by the Indemnified Party, in each case, without theIndemnified Party’s prior written consent, which shall not be unreasonably withheld, conditioned ordelayed. Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel andassume control of such defense or if both the Indemnifying Party and any Indemnified Party areparties to or subjects of such Proceeding and conflicts of interests exist between the IndemnifyingParty and such Indemnified Party, then the Indemnified Parties shall retain counsel reasonablyacceptable to the Indemnifying Party in connection with such Proceeding and assume control of thedefense in connection with such Proceeding, and, to the extent the Indemnified Party is entitled toindemnification hereunder in connection with such Proceeding, the fees, charges and disbursementsof not more than one firm as such counsel per jurisdiction selected by the Indemnified Partiesshall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Partyhave any liability in connection with any settlement of any Proceeding that is entered into withoutits prior written consent (which shall not be unreasonably withheld, conditioned or delayed).          (c) From and after the delivery of a Claim Notice, at the reasonable request of theIndemnifying Party, each Indemnified Party shall (i) reasonably cooperate with the IndemnifyingParty in connection with the defense of any Third-Party Claim and (ii) grant the Indemnifying Partyand its counsel, experts and representatives reasonable access, during normal business hours, tothe books, records, personnel (including as witnesses or deponents at trial and during thediscovery process) and properties of the Indemnified Party to the extent reasonably related to theClaim Notice, in the case of each of clauses (i) and (ii) of this sentence, at nocost to the Indemnifying Party (other than for reasonable out of pocket expenses of the IndemnifiedParties).          (d) From and after the Closing, except in the case of fraud, the indemnification obligationsset forth in this Article VII are the exclusive remedy of the
 

 
Indemnified Parties (a) for any inaccuracy in any of the representations or any breach of anyof the warranties or covenants contained herein or (b) otherwise with respect to this Agreement andthe transactions contemplated by this Agreement and matters arising out of, relating to orresulting from the subject matter of this Agreement, whether based on statute, contract, tort,property or otherwise, and whether or not arising from the relevant Party’s sole, joint orconcurrent negligence, strict liability or other fault.     Section 7.4 Limitations on Indemnification.          (a) To the extent that a Party hereto shall have any obligation to indemnify and hold harmlessany other Person hereunder, such obligation shall not include lost profits or other consequential,special, punitive, incidental or indirect damages (and the injured Party shall not recover for suchamounts), except to the extent such amounts are required to be paid to a third party other than anIndemnified Party or a Person affiliated therewith.          (b) Except in the case of fraud or intentional misrepresentation, ResCap shall not have anyobligation to indemnify any Buyer Indemnified Party pursuant to Section 7.2(a)(i) relatingto or arising out of a breach of any of the representations and warranties made by ResCap andSeller pursuant to Section 3.1(e)(ii) or (iii) unless and until the aggregateamount of all Losses subject to indemnification thereunder shall exceed 0.5% of the Firm Bid Price,as adjusted pursuant to Sections 2.3 and 2.4 (the “Deductible”), and oncethe Deductible is exceeded, ResCap shall be liable for only those Losses in excess of theDeductible.          (c) Except in the case of fraud or intentional misrepresentation, in no event shall theaggregate liability of ResCap for Losses pursuant to Section 7.2(a)(i) relating to orarising out of a breach of any of the representations and warranties made by ResCap and Sellerpursuant to Section 3.1(e)(ii) or (iii) exceed an amount equal to the Firm BidPrice, as adjusted pursuant to Sections 2.3 and 2.4 (the “Cap”).          (d) Notwithstanding anything to the contrary in this Agreement, the Parties agree that neitherthe Deductible nor the Cap shall apply with respect to any Losses pursuant to which any BuyerIndemnified Party is entitled to indemnification pursuant to Section 7.2(a)(iii).          (e) Notwithstanding anything contained herein to the contrary, the amount of any Lossesincurred or suffered by an Indemnified Person shall be calculated after giving effect to (i) anyinsurance proceeds actually received by the Indemnified Person (or any of its controlled Affiliatesthat are Indemnified Persons) with respect to such Losses and (ii) any other recoveries pursuant toindemnification rights directly relating to such Loss obtained by the Indemnified Person (or any ofits controlled Affiliates that are Indemnified Persons) from any other third party, less, in thecase of each of clauses (i) and (ii) of this sentence, all Losses related to thepursuing and receipt of such recoveries and any related recoveries. If any such net proceeds orrecoveries are actually received by an Indemnified Person (or any of its controlled Affiliates thatare Indemnified Persons) with respect to any Losses after an Indemnifying Person has made a paymentto the Indemnified Person with respect thereto, the Indemnified Person (or such Affiliate) shallpay to the Indemnifying Person the amount of such net proceeds or recoveries (up to the amount ofthe Indemnifying Person’s payment).
 

 
          (f) Upon making any payment to an Indemnified Person in respect of any Losses, theIndemnifying Person shall, to the extent of such payment, be subrogated to all rights of theIndemnified Person (and its Affiliates) against any insurance company from which the IndemnifiedPerson (and its controlled Affiliates that are Indemnified Persons) has insurance in respect of theLosses to which such payment relates. Such Indemnified Person (and its controlled Affiliates thatare Indemnified Persons) and Indemnifying Person shall execute upon request all instrumentsreasonably necessary to evidence or further perfect such subrogation rights. To the extent theexercise of rights under this Section 7.4(f) directly results in higher insurance premiumsfor the Indemnified Person, the incremental cost of such higher premiums shall constitute “Losses.”          (g) If (i) the Indemnifying Party has expressly confirmed in writing its obligation toindemnify an Indemnified Party for a Third Party Claim (or been deemed to have confirmed itsobligation to indemnify by assuming the defense of such Third Party Claim) and (ii) the IndemnifiedParty is entitled to indemnification from a third party unaffiliated with such Indemnified Party,then, promptly at the written request of the Indemnifying Party, the Indemnified Party shall usecommercially reasonable efforts to enforce its rights in respect of such third partyindemnification; provided, that (x) any out-of-pocket costs or expenses incurred by theIndemnified Party in connection with such efforts shall constitute Losses hereunder and (y) theIndemnified Party shall not be required to bring any action or pursue any claim under arbitrationor mediation to enforce its rights or otherwise take any action that the Indemnified Partydetermines in its reasonable judgment would be detrimental in any material respect to any ongoingbusiness relationship with such third party. Notwithstanding anything to the contrary in thisSection 7.4, ResCap shall not have any right, directly or indirectly, to pursue anyindemnification rights of Buyer or Subsidiary under the MSRAs or otherwise, except to the extentdirected in writing by Buyer pursuant to the Servicing Agreement.          (h) Each Indemnified Party shall use commercially reasonable efforts to mitigate any Losses,whether by asserting claims against a third party (subject to clause (g) above) or byotherwise qualifying for a benefit that would reduce or eliminate an indemnified matter;provided, that no party shall be required to use such efforts if such efforts (i) wouldrequire such party to pay any out-of-pocket amount; provided, however, that if anIndemnified Party has actual knowledge of an opportunity to mitigate any Loss that involves payingan out-of-pocket amount, then such Indemnified Party shall provide reasonable notification to theIndemnifying Party of such opportunity and if, after receipt of such notification, the IndemnifyingParty elects to provide an Indemnified Party with immediately available funds with instructions touse such funds to mitigate any Losses, such Indemnified Party shall use such funds for purposes ofsatisfying its obligations under this subsection (h) in accordance with the reasonableinstructions of the Indemnifying Party (it being understood and agreed that funds supplied by anIndemnifying Party to an Indemnified Party and used to mitigate Losses shall not represent paymentby the Indemnifying Party to the Indemnified Party for reimbursement of indemnified Losses);provided, further, that failure by the Indemnified Party to provide any such notification shall notrelieve the Indemnifying Party of any of its indemnification obligations hereunder except to theextent, and solely to the extent, the Indemnified Party fails to use commercially reasonableefforts to notify the Indemnifying Party of an opportunity to mitigate any Loss as contemplatedhereby and the Indemnifying Party is materially prejudiced by such
 

 
failure, or (ii) otherwise would be detrimental in any material respect to any ongoingbusiness relationship of the Indemnified Party with any third party.ARTICLE VIIIMISCELLANEOUS     Section 8.1 Notices. All notices, requests, claims, demands and other communicationshereunder shall be in writing and shall be given (and shall be deemed to have been duly given uponreceipt) by delivery in person, by overnight courier or by facsimile (with confirmation copiesdelivered personally or by courier on or before the third Business Day after such facsimiledelivery) to the respective Parties at the following addresses (or at such other address for aParty as shall be specified by like notice):   If to Seller, Subsidiary (prior to Closing), Residential Funding Company, LLCor ResCap: One Meridian Crossings  Suite 100  Minneapolis, MN 55423  Attention:    President                      Business Capital Group     Telephone No.: (952) 857-6958  Telecopier No.: (952) 857-6943   With a copy to: Residential Funding Company, LLC  One Meridian Crossings  Suite 100  Minneapolis, MN 55423  Attention:    Chief Counsel                      Business Capital Group  Telephone No.: (952) 857-6911  Telecopier No.: (952) 857-6949     and     Skadden, Arps, Slate, Meagher & Flom LLP  One Rodney Square  Wilmington, DE 19801  Attention: Allison Land  Facsimile: 888-329-3021
 

 
   If to Buyer or Subsidiary Cerberus Capital Management, L.P.(after the Closing): 299 Park Avenue  New York, NY 10171  Attention: Mark A. Neporent  Facsimile: (212) 891-1540   With a copy to: Schulte Roth & Zabel LLP  919 Third Avenue  New York, New York 10022  Attention:     John M. Pollack  Facsimile:     (212) 593-5955     Copies to be sent as indicated above shall be courtesy copies and failure to deliver any suchcourtesy copies shall not invalidate any notice properly delivered to ResCap or Buyer as set forthabove.     Section 8.2 Amendment; Waiver. Any provision of this Agreement may be amended or waivedif, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, byResCap and Buyer, or in the case of a waiver, by the Party against whom the waiver is to beeffective. No failure or delay by any Party in exercising any right, power or privilege hereundershall operate as a waiver thereof nor shall any single or partial exercise thereof preclude anyother or further exercise thereof or the exercise of any other right, power or privilege.     Section 8.3 No Assignment or Benefit to Third Parties. This Agreement shall be bindingupon and inure to the benefit of the Parties hereto and their respective successors, legalrepresentatives and permitted assigns. No Party to this Agreement may assign any of its rights ordelegate any of its obligations under this Agreement, by operation of Law or otherwise, without theprior written consent of the other Parties hereto. Nothing in this Agreement, express or implied,is intended to confer upon any Person other than ResCap, Seller, Buyer and Subsidiary and each oftheir respective successors, legal representatives and permitted assigns, any rights or remediesunder or by reason of this Agreement; provided, that, the Buyer Indemnified Parties (solely withrespect to their indemnification rights pursuant to this Agreement) and the ResCap IndemnifiedParties (solely with respect to their indemnification rights pursuant to this Agreement) shall bethird party beneficiaries of such Sections of this Agreement, entitled to enforce those specifiedprovisions hereof.     Section 8.4 Entire Agreement. This Agreement (including the Exhibits, the ResCapDisclosure Letters hereto and any certificate or document required to be executed and delivered inconnection with the execution of this Agreement or the consummation of the transactionscontemplated hereby), the other Transaction Documents contain the entire agreement between theParties hereto with respect to the subject matter hereof and thereof and supersedes all prioragreements and understandings, oral or written, with respect to such matters.     Section 8.5 Fulfillment of Obligations. Any obligation of any Party to any other Partyunder this Agreement, which obligation is performed, satisfied or fulfilled completely by an
 

 
Affiliate of such Party, shall be deemed to have been performed, satisfied or fulfilled by suchParty.     Section 8.6 Expenses. Except as otherwise specified in this Agreement, all costs andexpenses, including fees and disbursements of counsel, financial advisors and accountants, incurredin connection with this Agreement and the transactions contemplated hereby and thereby shall bepaid by the Party incurring such costs and expenses, whether or not the Closing shall haveoccurred.     Section 8.7 Governing Law; Submission to Jurisdiction; Selection of Forum; Waiver of Trial byJury. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THESTATE OF DELAWARE WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. Any action or proceeding inrespect of any claim arising out of or related to this Agreement or the transactions contained inor contemplated hereby against any Party hereto shall be brought in the Chancery Court of the Stateof Delaware, any other state court of the State of Delaware or the United States District Court forthe District of Delaware (the “Chosen Courts”), and solely in connection with claims arising underthis Agreement or the transactions that are the subject of this Agreement, each Party: (i)irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any objectionto laying venue in any such action or proceeding in the Chosen Courts, (iii) waives any objectionthat the Chosen Courts are an inconvenient forum or do not have jurisdiction over any Party heretoand (iv) agrees that service of process upon such Party in any such action or proceeding shall beeffective if notice is given in accordance with Section 8.1 of this Agreement. Each Party heretoirrevocably waives any and all right to trial by jury in any legal proceeding arising out of orrelating to this Agreement or the transactions contemplated hereby.     Section 8.8 Counterparts. This Agreement may be executed in one or more counterparts, eachof which shall be deemed an original, and all of which shall constitute one and the same Agreement.Executed signature pages to this Agreement may be delivered by facsimile and such facsimiles willbe deemed as sufficient as if actual signature pages had been delivered.     Section 8.9 Headings. The heading references herein and the table of contents hereof arefor convenience purposes only, and shall not be deemed to limit or affect any of the provisionshereof.     Section 8.10 Severability. The provisions of this Agreement shall be deemed severable andthe invalidity or unenforceability of any provision shall not affect the validity or enforceabilityof the other provisions hereof. If any provision of this Agreement, or the application thereof toany Person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provisionshall be substituted therefor in order to carry out, so far as may be valid and enforceable, theintent and purpose of such invalid or unenforceable provision and (b) the remainder of thisAgreement and the application of such provision to other Persons or circumstances shall not beaffected by such invalidity or unenforceability, nor shall such invalidity or unenforceabilityaffect the validity or enforceability of such provision, or the application thereof, in any otherjurisdiction.
 

 
     Section 8.11 Commitment Regarding Actions of Controlled Affiliates. With respect to anycovenant requiring any controlled Party or controlled Affiliate of a Party to take an action oromit to take an action, such Party shall cause such controlled Affiliate to comply with suchcovenant. Any failure by any Party’s controlled Affiliates to do so shall also constitute a breachof such covenant by such Party.     Section 8.12 Specific Performance. Each Party acknowledges that money damages would beboth incalculable and an insufficient remedy for any breach of this Agreement by such Party andthat any such breach would cause the other Party hereto irreparable harm. Accordingly, each Partyhereto also agrees that, in the event of any breach or threatened breach of the provisions of thisAgreement by such Party, the other Party hereto shall be entitled to equitable relief without therequirement of posting a bond or other security, including in the form of injunctions and ordersfor specific performance.[*Signature page follows.*]
 

 
     IN WITNESS WHEREOF, each of the Parties has executed or caused this Agreement to be executedas of the date first written above.      RESIDENTIAL CAPITAL, LLC