EX-10.4






EXHIBIT
10.4



EXECUTION
COPY




 






PURCHASE AGREEMENT




among




RESIDENTIAL CAPITAL, LLC,




DOA HOLDING PROPERTIES, LLC,




DOA PROPERTIES IIIB (KB MODELS), LLC




and




MHPOOL HOLDINGS LLC




Dated as of September 30, 2008




      





 









 





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 Assets
	Exhibit A-2
	 	Pool 2 Assets
	Exhibit B
	 	Excluded Assets
	Exhibit C
	 	Buyer's Valuation of Assets
	Exhibit D
	 	Calculation of Proration Amount
	Exhibit E
	 	Servicing Agreement
	Exhibit F
	 	Limited Assignment and Assumption Agreement
	Exhibit G
	 	Form of Mutual Release
	Exhibit H
	 	Form of Purchase and Sale Contract and Deed






ii




 









 







PURCHASE AGREEMENT




     This PURCHASE AGREEMENT is dated as of September 30, 2008, among Residential Capital, LLC, a
Delaware limited liability company (“ResCap”), DOA Holding Properties, LLC, a Delaware
limited liability company and indirect wholly-owned subsidiary of ResCap (“Seller”), DOA
Properties IIIB (KB Models), LLC, a Delaware limited liability company and direct wholly-owned
subsidiary of Seller (“Subsidiary”) and MHPool Holdings LLC, a Delaware limited liability
company (“Buyer”). Each of ResCap, Seller, Subsidiary and Buyer are referred to herein as
a “Party” and, collectively, as the “Parties”.



RECITALS:




     WHEREAS, as of June 30, 2008, Subsidiary was the owner of all of the assets identified in
Exhibit A-1 hereto (collectively, the “Pool 1 Assets” or “Pool 1”), as to
which Cerberus Capital Management, L.P. submitted a firm bid on July 25, 2008 (the “Bid
Letter”);



     WHEREAS, as of June 30, 2008, DOA Properties III (Models), LLC, a Delaware limited liability
company and an Affiliate of Subsidiary (“DOA Affiliate”), was the owner of all of the
assets 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 Excluded
Assets, as defined below) to Subsidiary;



     WHEREAS, during the period from June 30, 2008 to the date hereof, Subsidiary or (prior to the
conveyance of the Pool 2 Assets to Subsidiary) DOA Affiliate, as the case may be, has entered into
a definitive agreement to sell, or has otherwise sold, to a third party a portion of the Assets, a
list 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 than
the Excluded Assets (the “Subject Assets”), through a sale and purchase of all of the
membership interests of Subsidiary (the “Interests”), as contemplated by the Bid Letter, on
the 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, the
receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be
legally bound, agree as follows:



ARTICLE I




DEFINITIONS AND TERMS




     Section 1.1 Certain Definitions. As used in this Agreement, the following
terms have the meanings set forth below:



     “Additional Proceeds Amount” means the aggregate amount of proceeds or other payments
received by ResCap or any of its Affiliates in respect of the Subject Assets in respect of the
period between 11:59 p.m. (New York City Time) on the Cut-Off Date and 12:01 a.m. (New York City
Time) on the Closing Date, including all payments due after the Cut-Off Date but received on or
prior 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 to
the Excluded Assets by Buyer as set forth on Exhibit C hereto.



     “Affiliate” means, with respect to any Person, any Person directly or indirectly
controlling, controlled by, or under common control with, such other Person as of the date on
which, 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 the
terms “controlled by” and “under common control with”), as used with respect to any Person, means
the possession, directly or indirectly, of the power to direct or cause the direction of the
management policies of such Person, whether through the ownership of voting securities or by
contract or otherwise.



     “Agreement” means this Purchase Agreement, as the same may be amended or supplemented
from 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 sale
and 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 banks
in New York City are authorized or obligated by Law or executive order to close.



     “CERCLA” means the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended through the Closing.



     “Claims” means any and all actions, suits, petitions, appeals, demands, demand
letters, claims, notices asserting any right to indemnification, liens, notices of noncompliance or
violation, 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 ambient
air.



     “Environmental Laws” means all Laws, now or hereafter in effect and as amended, and
any judicial or administrative interpretation thereof, including any judicial or administrative
order, consent decree or judgment, relating to the Environment, health, safety, natural resources
or Hazardous Materials, including CERCLA; the Resource Conservation and Recovery Act, 42 U.S.C. §§
6901 et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. §§ 6901
et seq.; the Clean Water Act, 33 U.S.C. §§ 1251 et seq.; the Toxic
Substances Control Act, 15 U.S.C. §§ 2601 et seq.; the Clean Air Act, 42 U.S.C. §§
7401 et seq.; the Safe Drinking Water Act, 42 U.S.C. §§ 300f et
seq.; the Atomic Energy Act, 42 U.S.C. §§ 2011 et seq.; the Federal
Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 136 et seq.; and the
Federal Food, Drug and Cosmetic Act, 21 U.S.C. §§ 301 et seq.



     “Governmental Entity” means any federal, state or local court, administrative body or
other governmental or quasi-governmental entity with competent jurisdiction.



     “Guaranty” means the Guaranty, effective as of June 5, 2006, made by Residential
Funding Corporation (“RFC”) in favor of the Builder (as defined in the Pool 1 MSRA) in
connection 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, extremely
hazardous substance or chemical, hazardous material, hazardous waste or biohazardous or infectious
waste under applicable Environmental Laws; (b) petroleum, petroleum-based or petroleum-derived
products; (c) any substance exhibiting a hazardous waste characteristic including but not limited
to corrosivity, ignitibility, toxicity or reactivity as well as any radioactive or explosive
materials; (d) any substance containing 50 parts per million or more of polychlorinated biphenyls
or asbestos that is friable or damaged; and (e) any other wastes, materials, chemicals or
substances 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 or
self-regulatory organization.



     “Liabilities” means any and all debts, liabilities, commitments and obligations of any
kind, 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 tort
based on negligence or strict liability) and whether or not the same would be required by GAAP to
be reflected in financial statements or disclosed in the notes thereto.



     “Limited Assignment and Assumption Agreement” means that certain Limited Assignment
and 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 by
ResCap, on behalf of itself and each of its controlled Affiliates (other than Subsidiary), on the
one 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, LLC
to KB Home, in connection with the Pool 1 MSRA.



     “Permitted Encumbrances” means (i) liens for real property taxes and government
improvement 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 the
insurability or marketability of title to the Subject Asset or prohibit or interfere with the use
of the Subject Asset as a single family residential dwelling; (iii) the standard title insurance
policy exceptions for the jurisdiction to the extent customarily acceptable to buyers of
residential property; and (iv) any defects or other matters affecting title that will be
irrevocably extinguished by Seller or Subsidiary prior to the Closing.



     “Person” means an individual, a corporation, a partnership, an association, a limited
liability 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 KB
Home, 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 Model
Home Finance, Inc., Dominion Homes, Inc. and Dominion Homes of Kentucky, Ltd., as further amended
or 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 United
States 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 water
or air or otherwise entering into the Environment.



 









 





     “ResCap Disclosure Letters” means the disclosure letters delivered by Seller to Buyer
prior 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 in
Section 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 other
information filed, supplied or required to be filed or supplied to any Governmental Entity in
connection with Taxes.



     “Taxes” means all taxes, charges, fees, levies or other similar assessments or
liabilities, including without limitation income, gross receipts, ad valorem, premium, value-added,
excise, real property, personal property, sales, use, services, withholding, employment, payroll
and franchise taxes imposed by the United States or any state, local or foreign government, or any
agency thereof, or other political subdivision of the United States or any such government, and any
interest, fines, penalties, assessments or additions to tax resulting from, attributable to, or
incurred in connection with any Tax or any contest or dispute thereof and any interest in respect
of such amounts.



     “Transaction Documents” means, collectively, this Agreement, the Limited Assignment
and Assumption Agreement, the Ancillary Transfer Documents, the Mutual Release and the Servicing
Agreement.



     Section 1.2 Other Terms



     . The following capitalized terms are defined in the following Sections of this Agreement:



	 	 	 	 	 
	Term	 	Section
	Assumed Liabilities

	 	 	2.2	(a)
	Bid Letter

	 	RECITALS

	Buyer

	 	PREAMBLE

	Buyer Indemnified Party

	 	 	7.2	(a)
	Cap

	 	 	7.4	(c)
	Chosen Courts

	 	 	8.7	 
	Claim Notice

	 	 	7.3	(a)
	Closing

	 	 	0	 
	Closing Date

	 	 	0	 
	Code

	 	 	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

	 	RECITALS

	Final Additional Proceeds Amount

	 	 	2.4	(d)






 









 






	 	 	 	 	 
	Term	 	Section
	Final 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

	 	PREAMBLE

	Pool

	 	RECITALS

	Post-Closing Statement

	 	 	2.4	(c)
	Proceeding

	 	 	7.3	(a)
	Required Seller Consents

	 	 	3.1	(c)
	ResCap

	 	PREAMBLE

	ResCap Indemnified Party

	 	 	7.2	(b)
	Retained Liabilities

	 	 	2.2	(b)
	Sale

	 	 	2.1	 
	Seller

	 	PREAMBLE

	Seller’s Certificate

	 	 	2.4	(a)
	Servicing Agreement

	 	 	4.3	 
	Subsidiary

	 	PREAMBLE

	Subject Asset

	 	RECITALS

	Third-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 in
this Agreement, shall refer to this Agreement as a whole and not to any particular provision of
this Agreement;




     (b) the terms defined in the singular have a comparable meaning when used in the plural, and
vice 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, it
shall be deemed to be followed by the words “without limitation;” and



 









 






     (f) references herein to any gender includes each other gender.



ARTICLE II




PURCHASE AND SALE OF INTERESTS




     Section 2.1 Sale of Interests. On the terms and subject to the conditions set forth
herein, at the Closing, Seller shall sell, convey, transfer, assign and deliver to Buyer, and
Buyer shall 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 Assignment
and Assumption Agreement (to the extent applicable), at the Closing, Subsidiary shall assume or
retain, as applicable, perform and discharge when due (i) all Liabilities in respect of the Pool 1
MSRA and the Note allocated to Subsidiary pursuant to the Limited Assignment and Assumption
Agreement, (ii) all Liabilities in respect of the Pool 2 MSRA (but only to the extent of the
obligations thereunder arising from and after the Closing Date as a result of post-Closing
ownership and operation of the Subject Assets), and (iii) all Liabilities to the extent, but solely
to the extent, included in the calculation of the Proration Amount in accordance with Exhibit
D (collectively, the “Assumed Liabilities”).




          (b) From and after the Closing, Seller shall assume or retain, as applicable, perform and
discharge when due all Liabilities that exist, relate to or arise out of (i) all Liabilities in
respect of the Pool 1 MSRA and the Note allocated to Seller pursuant to the Limited Assignment and
Assumption Agreement, (ii) the ownership of the Interests or any of the Subject Assets or the
operation of the businesses or assets of Subsidiary or DOA Affiliate (including with respect to
obligations and liabilities under the Pool 2 MSRA except to the extent assumed or retained by
Subsidiary pursuant to Section 2.2(a)(ii)) prior to or as of the Closing (except to the
extent, but solely to the extent, included in the calculation of the Proration Amount in accordance
with Exhibit D), (iii) the Excluded Assets, or (iv) any of the matters specified in
Section 2.2 of either of the ResCap Disclosure Letters (the “Retained
Liabilities”). Notwithstanding anything to the contrary herein, neither Buyer nor Subsidiary
shall 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 respective
controlled Subsidiaries to take, all actions necessary to extinguish that certain loan agreement
and revolving note between KBOne, LLC and GMAC MHF referenced in the Note (the “GMAC MHF
Note”) in full without any liability to Subsidiary, Buyer, ResCap, Seller, KB One, LLC or GMAC
MHF.



     Section 2.3 Purchase Price.




          (a) On the terms and subject to the conditions set forth herein, at the Closing, in
consideration 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 the
Estimated Proration Amount, and (iv) as adjusted downward, for the Estimated Additional Proceeds
Amount.




          (b) The allocation of the Firm Bid Price among the Subject Assets shall be allocated in
proportion 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 Subject
Assets shall be in accordance with a schedule to be prepared in good faith by Buyer and delivered
to Seller within 30 calendar days after the final determinations of the Final Proration Amount and
the Final Additional Proceeds Amount pursuant to Section 2.4 and shall be based on the
underlying Subject Asset directly related thereto. Seller shall have the right to review such
schedule 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 deliver
to Buyer a certificate (the “Seller’s Certificate”) that sets forth Seller’s good faith
estimate (together with reasonably detailed back-up data to support such estimate) of (i) the
Proration Amount (“Estimated Proration Amount”) and (ii) the Additional Proceeds Amount
(the “Estimated Additional Proceeds Amount” and, together with the Estimated Proration
Amount, the “Estimated Adjustments”). The calculation of the Estimated Proration Amount
shall be prepared in accordance with Exhibit D. The calculation of the Estimated Additional
Proceeds Amount shall be prepared in accordance with the definition of “Additional Proceeds
Amount”.




          (b) During the preparation and calculation of the Estimated Adjustments, Seller shall, and
ResCap shall cause Seller to, afford Buyer and its representatives a reasonable opportunity to
review the preparation of Estimated Adjustments; and thereafter, reasonable access to the books and
records of Seller and Subsidiary to confirm such calculation.




          (c) As promptly as practicable, but in no event later than thirty days following the Closing
Date, 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 support
such calculation) of (i) the Proration Amount and (ii) the Additional Proceeds Amount. The
calculation of the Proration Amount as set forth on the Post-Closing Statement shall be prepared in
accordance with Exhibit D. The calculation of the Additional Proceeds Amount as set forth
on the Post-Closing Statement shall be prepared in accordance with the definition of “Additional
Proceeds Amount”.




          (d) Except as set forth below in this Section 2.4, the Post-Closing Statement and the
calculations of the Proration Amount and Additional Proceeds Amount shall be deemed to be and shall
be final, binding and conclusive on the Parties hereto. Both the Post-Closing
Statement and the calculations of Proration Amount and Additional Proceeds thereon shall be
deemed final for the purposes of this Section 2.4 upon the earlier of (i) the failure of
Buyer to deliver Seller a Notice of Dispute within thirty days of the receipt of the Post-Closing
Statement, (ii) the resolution 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
Independent Accounting Firm. “Final Proration Amount” shall mean the Proration Amount as
finally determined pursuant to this Section 2.4. “Final Additional Proceeds
Amount” shall mean 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 of any of the Proration Amount and/or Additional Proceeds Amount as set forth
on the Post-Closing Statement.




          (e) In the event a Notice of Dispute is delivered, Buyer and Seller shall cooperate in good
faith to attempt to reconcile their differences, and any mutually agreed resolution by them as to
any disputed amounts shall be final, binding and conclusive on the Parties hereto. If Buyer and
Seller are unable to reach such a resolution within thirty days of the delivery of the Notice of
Dispute, Buyer and Seller shall submit the items remaining in dispute for resolution to an
independent 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 the
expiration of such 30-day period (or if Buyer notifies Seller in writing that there is no such
dispute), 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 or
certain portions of the amounts set forth therein but not others, then any undisputed amount or
portion thereof shall be deemed to be final, binding and conclusive.




          (f) The Independent Accounting Firm shall be instructed to render its written determination as
soon as reasonably possible (which the Parties hereto agree should not be later than sixty days
following the date on which the items remaining in dispute are submitted to the Independent
Accounting Firm) to Seller and Buyer. The Independent Accounting Firm may only resolve
disagreements as to matters covered by the Notice of Dispute. All matters not covered by the
Notice of Dispute shall be deemed to be final, binding and conclusive. The Independent Accounting
Firm’s determination shall be final, binding and conclusive on the Seller and Buyer. Buyer and
Seller shall promptly provide their assertions regarding the Proration Amount and Additional
Proceeds Amount, as the case may be, in writing to the Independent Accounting Firm, with a copy to
each other. The Independent Accounting Firm shall conduct its determination activities in a manner
wherein all materials submitted to it are held in confidence and shall not be disclosed to any
third parties (other than any designated authorized representative of a Party). The Parties agree
that judgment may be entered upon the determination of the Independent Accounting Firm in any court
having jurisdiction over the Party against which such determination is to be enforced. The fees and
disbursements of the Independent Accounting Firm shall be allocated between Seller and Buyer in the
same proportion that the aggregate amount of such remaining disputed items so submitted to the
Independent Accounting Firm that is unsuccessfully disputed by each such Party as finally
determined by the Independent Accounting Firm bears to the total amount of such remaining disputed
items. In no event may the Independent Accounting Firm’s resolution of any difference be for an
amount 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 records
reasonably requested by the Independent Accounting Firm in connection
with this Section 2.4(f) (subject to the execution of customary access letters, if
requested, with respect to the work 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, then
Seller 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 Additional
Proceeds Amount, then Seller shall pay such excess amount to Buyer within three Business Days of
such determination; and




     (B) in the event that the Final Additional Proceeds Amount is less than the Estimated
Additional Proceeds Amount, then Buyer shall pay such excess amount to Seller within three Business
Days of such determination.




          (i) Payment shall be made pursuant to subsections (g) and (h) of this
Section 2.4 as follows: (i) by wire transfer of immediately available funds to the bank
account designated in writing by the recipient at least two Business Days prior to the expiration
of 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 applicable
three-Business Day period, interest shall be due and payable on such payment at an annual rate
equal to the Reference Rate from and after the Closing Date to and including the date such payment
is fully made; provided, that such amounts shall be netted to the extent payable by each of
Seller and Buyer to the other Party.



     Section 2.5 Closing. Subject to the terms and conditions of this Agreement,
the consummation of the Sale (the
“Closing”) shall take place at the offices of Schulte Roth & Zabel LLP, 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 those conditions that by their nature are to be
satisfied at the Closing but subject to the fulfillment or waiver of those conditions) have not
been satisfied or waived by such date, in which case the Closing shall occur on the second Business
Day following the date on which the conditions set forth in Article V (other than those conditions
that by their nature are to be satisfied at the Closing but subject to the fulfillment or waiver of
those conditions) have been satisfied or waived, or at such other time and place as the Parties
hereto may mutually agree. At the Closing, the Parties shall take all actions required under this
Article II and all other actions not previously taken but required to be taken hereunder at or
prior to the Closing. The date on which the Closing occurs is called the “Closing Date”.



     Section 2.6 Deliveries by Seller. At the Closing, Seller shall deliver (or cause to be delivered) 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 and
Assumption Agreement, (iii) the Mutual Release and (iv) the Ancillary Transfer Documents;




          (c) the written resignations, effective as of the Closing, of the current officers, managing
member, 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 its
controlled Affiliates exclusively related to, and copies of all Contracts and other documents in
the possession or control of ResCap or any of its controlled Affiliates primarily related to or
otherwise 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 for
U.S. Federal tax purposes (that is not disregarded) (the “Owner”) is not a foreign person
as defined in Section 1445 of the U.S. Internal Revenue Code (the “Code”) and providing
Owner’s United States tax identification number;




          (g) any Transfer Tax documentation required to be executed by Seller or Subsidiary in
connection 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 other
documents and instruments of Subsidiary as Buyer may reasonably request related to the ownership or
operation of Subsidiary; and




          (j) such other documents and instruments as may be reasonably and customarily required in the
applicable jurisdiction to consummate the Sale pursuant to this Agreement.



     Section 2.7 Deliveries by Buyer. At the Closing, Buyer shall deliver (or cause to be delivered) to Seller:




          (a) an amount in cash equal to the Estimated Purchase Price in immediately available funds by
wire transfer to an account or accounts that have been designated by ResCap no later than three
Business 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 and
Assumption 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 to
consummate the Sale pursuant to this Agreement.



     Section 2.8 Closing Costs. Except as otherwise set forth herein, each party shall be responsible for its respective legal
costs. Seller shall pay all excise, sales, use, value added, registration stamp, recording,
documentary, conveyancing, franchise, transfer, gains, transaction privilege tax and similar Taxes,
levies, charges and fees (collectively, “Transfer Taxes”) incurred in connection with the Sale
pursuant to this Agreement. Buyer shall pay (i) all costs associated with 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 the parties to pay applicable
closing charges shall survive the termination of this Agreement.



ARTICLE III




REPRESENTATIONS AND WARRANTIES 




     Section 3.1 Representations and Warranties of ResCap and Seller. ResCap and Seller, jointly and 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 be made only as of such date) that:




          (a) Due Organization. Each of ResCap, Seller and Subsidiary is duly formed, validly
existing and in good standing under the laws of its jurisdiction of formation. Each of ResCap and
Seller has all requisite limited liability company power and authority to enter into this Agreement
and to carry out its respective obligations hereunder and to consummate the transactions
contemplated hereby. Subsidiary has the requisite limited liability company power and authority to
own its assets and to carry on its business as presently conducted and is duly qualified to do
business and is in good standing (where such concept exists) as a foreign limited liability company
in each jurisdiction in which the nature of its business or the ownership or leasing of its
properties makes such qualification necessary.




          (b) Binding Effect. The execution and delivery of this Agreement, the performance of
its obligations hereunder and the consummation of the transactions contemplated hereby have been
duly 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 by Buyer, 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 to bankruptcy, insolvency, receivership, moratorium, reorganization or similar laws
affecting the rights of creditors generally. As of the Closing Date with respect to the Limited
Assignment and Assumption Agreement, Ancillary Transfer Documents, Mutual Release and the Servicing
Agreement (i) the execution and delivery of each such Transaction Document, the performance of
their respective obligations thereunder and the consummation of the transactions contemplated
thereby shall have been duly authorized by all requisite limited liability company power on the
part of each of ResCap and Seller; (ii) each such Transaction Document shall have been duly
executed and delivered by each of ResCap and Seller; and (iii) each such Transaction Document shall
constitute a legally binding obligation of each of ResCap



 









 






and Seller, enforceable against each such
entity in accordance with its terms, subject to bankruptcy, insolvency, receivership, moratorium,
reorganization or similar laws affecting the rights of creditors generally.




          (c) Consents and Approvals. No consent, approval, waiver, authorization, notice or
filing is required to be obtained from or made with any Governmental Entity or self-regulatory
organization or any other Person by ResCap or any of its controlled Affiliates, including Seller
and Subsidiary, in connection with the execution, delivery and performance of any of the
Transaction Documents, other than those set forth in Section 3.1(c) of the ResCap Disclosure
Letters (the “Required Seller Consents”).




          (d) Non-Contravention. Assuming the receipt of the Required Seller Consents, the
execution, delivery and performance of this Agreement by ResCap, Seller and Subsidiary and by
ResCap, Seller and each of their respective controlled Affiliates of the other Transaction
Documents (to the extent executed and delivered), and the consummation of the transactions
contemplated hereby and thereby, do not and will not (i) violate any provision of the
organizational documents of the applicable entity, (ii) result in the material breach of, or
constitute a material default under, or result in the termination, cancellation, modification or
acceleration (whether after the filing of notice or the lapse of time or both) of any material
right 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, any
material Contract (including the MSRAs), or result in the creation of any Encumbrance upon any of
the Interests or the Subject Assets, or (iii) violate or result in a breach of or constitute a
default under any Law to which ResCap or any of its controlled Affiliates, including Seller and
Subsidiary, is subject.




          (e) Subject Assets.




     (i) Seller has full right to sell, assign and transfer all of its right, title and
interest 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 nature
whatsoever (except for any such Encumbrances being released prior to or effective upon the
Closing). At the Closing, Seller shall transfer all right, title and interest in the
Interests to Buyer, free and clear of any Encumbrances of any kind (other than those imposed
by applicable securities Laws), and, except for those Ancillary Transfer Documents executed
and delivered to Buyer by Seller at Closing, no novations or assignments shall be
necessary to vest Buyer at the Closing with such right, title and interest. The Interests
constitute all of the outstanding membership interests (or other form of equity- or
equity-like interests) of Subsidiary. Subsidiary has good and valid title to each Subject
Asset, free and clear of any Encumbrances of any nature whatsoever except for Permitted
Encumbrances and any other Encumbrances being released prior to or effective upon the
Closing. For each Subject Asset, it was the policy of Subsidiary or Subsidiary’s
predecessor in title to obtain a title insurance policy in favor of (A) Subsidiary, or (b) a
predecessor-in-title to Subsidiary, and each predecessor-in-title to Subsidiary has
transferred the Subject Asset to a subsequent predecessor-in-title to Subsidiary or to
Subsidiary using a general warranty deed. The Services to be performed by ResCap or its
controlled Affiliates under the Servicing Agreement, shall, at Closing, constitute all



 









 






services necessary to operate the Subject Assets in all material respects as currently
operated. The sole business conducted by Subsidiary is and has been the ownership of the
Subject 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 consistent
with past practice, pursuant to the transactions contemplated hereby or as otherwise set
forth in Section 3.1(e)(i) of the ResCap Disclosure Letters, Subsidiary has not
incurred any Liabilities other than Retained Liabilities, Assumed Liabilities and those
Liabilities 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 the
Excluded Assets. Subsidiary has no employees.




     (ii) Except as set forth in Section 3.1(e)(ii) of the ResCap Disclosure
Letters, there are no pending or, to ResCap’s Knowledge, threatened Claims concerning
any Subject Asset that constitutes real property (the “Model Homes”) or the MSRAs or
the obligations or rights of ResCap or any of its controlled Affiliates or other Persons in
and to the Model Homes or under the MSRAs. Neither ResCap nor any of its controlled
Affiliates has received any written notice from any Governmental Entity that there currently
is any pending condemnation or eminent domain proceeding relating to the Model Homes, or
that any such proceeding is currently contemplated. To ResCap’s Knowledge, except as would
not reasonably be expected to result, individually or in the aggregate, in material
liability to Subsidiary or Buyer: (i) each Model Home has been used and occupied only as a
model home and/or as a sales office for the marketing of other homes in the applicable
Community or for storage of items relating to the applicable Community in accordance with
applicable Laws and for no other purpose, (ii) the construction of the Model Homes and all
improvements in the Communities in which the Model Homes are located (or the phase of the
Community 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 for
use of the Model Homes as single family residences following Retrofit (as defined in the
MSRAs), (iii) except as set forth in Section 3.1(e)(ii) of the ResCap Disclosure
Letters, the applicable builder has complied with all state disclosure requirements and
community covenants in respect of the Subject Assets and (iv) no property underlying any of
the 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 the
Limited Assignment and Assumption Agreement with respect to the Pool 1 MSRA, will be the
valid and binding obligation of Subsidiary to the extent assumed thereby and, to ResCap’s
Knowledge, the other parties thereto are in compliance in all material respects with all
terms and conditions in the MSRAs and, except as set forth in Section 3.1(e)(iii) of the
ResCap 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, or
event or condition that, after notice or lapse of time or both, would constitute a material
violation, breach or event of default thereunder on the part of Subsidiary or, to ResCap’s
Knowledge, any other party to the MSRAs. The MSRAs, the Note and the Guaranty constitute
the only Contracts in effect between ResCap or any of its controlled Affiliates, on the one
hand, and the applicable builder or any of its



 









 






Affiliates, on the other hand, concerning the
Subject Assets. As of the Closing, other than the MSRAs, the Note and the Guaranty, there
are no Contracts or indebtedness to which ResCap or any of its controlled Affiliates is a
party with respect to which the Subject Assets are bound.




          (f) Liabilities. Except for those items included as a reduction to the purchase price
in the calculation of the Proration Amount in accordance with Exhibit D, all liabilities
required to be paid prior to or as of 12:01 a.m. (New York City Time) on the Closing Date by ResCap
or any of its controlled Affiliates, including Subsidiary, in respect of any of the Interests or
Subject Assets (including under the MSRAs, the Note or the Guaranty) have been fully paid by ResCap
or 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 sole
owner for U.S. Federal tax purposes and no deficiency for any Taxes has been asserted or assessed
with 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 threatened
in 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 Assets
that arose in connection with any failure to pay any Taxes.




          (g) Brokers/Finders. No broker, investment banker, financial advisor or other Person
is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in
connection with the Interests (or the transfer of control of any of the Subject Assets as a result
thereof) pursuant to this Agreement based upon arrangements made by or on behalf of ResCap or any
of its controlled Affiliates with respect to which Buyer or Subsidiary has any obligation or
liability.




          (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 and
warranties contained in this Section 3.1, neither ResCap or any of its controlled
Affiliates or other Persons makes any express or implied representation or warranty on behalf of
ResCap or Seller or with respect to the Interests or Assets.



     Section 3.2 Representations and Warranties of Buyer. Buyer represents and warrants to ResCap 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 be made
only as of such date) that:




          (a) Due Organization. Buyer is duly organized, validly existing and in good standing
under the laws of its jurisdiction of formation and has all requisite limited liability company
power and authority to enter into this Agreement and to carry out its obligations hereunder and
thereunder and to consummate the transactions contemplated hereby and thereby.




          (b) Binding Effect. The execution and delivery of this Agreement, the performance of
its obligations hereunder and the consummation of the transactions contemplated hereby have been
duly authorized by all requisite limited liability company action of Buyer.



 









 






This Agreement has
been duly executed and delivered by Buyer. This Agreement, assuming the due authorization,
execution and delivery by ResCap, Seller and Subsidiary, constitutes a legally binding obligation
of Buyer, enforceable against Buyer in accordance with its terms, subject to bankruptcy,
insolvency, receivership, moratorium, reorganization or similar laws affecting the rights of
creditors generally. As of the Closing Date with respect to the Limited Assignment and Assumption
Agreement, Ancillary Transfer Documents, Mutual Release and the Servicing Agreement, (i) the
execution and delivery of each such Transaction Document, the performance of Buyer’s obligations
thereunder and the consummation of the transactions contemplated thereby shall have been 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 and delivered by
Buyer; and (iii) each such Transaction Document shall constitute a legally binding obligation of
Buyer, enforceable against Buyer in accordance with its terms, subject to bankruptcy, insolvency,
receivership, moratorium, reorganization or similar laws affecting the rights of creditors
generally.




          (c) Consents and Approvals. No consent, approval, waiver, authorization, notice or
filing is required to be obtained from or made with any Governmental Entity or self-regulatory
organization or any other Person, by Buyer in connection with the execution, delivery and
performance of any of the Transaction Documents.




          (d) Non-Contravention. The execution, delivery and performance by Buyer of each of
the Transaction Documents, and the consummation of the transactions contemplated hereby and
thereby, 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 the
termination, cancellation, modification or acceleration (whether after the filing of notice or the
lapse of time or both) of any material right or obligation of Buyer under, or result in a loss of
any material benefit to which Buyer is entitled under, any material Contract, or result in the
creation of any Encumbrance upon any of assets of Buyer, or (iii) violate or result in a breach of
or constitute a default under any Law to which Buyer is subject.




          (e) Brokers/Finders. No broker, investment banker, financial advisor or other Person
is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in
connection with the transfer of Interests (or the transfer of control of any of the Subject Assets
as a result thereof) pursuant to this Agreement based upon arrangements made by or on behalf of
Buyer with respect to which ResCap or any of its controlled Affiliates has any obligation or
liability.




          (f) No Other Representations or Warranties. Except for the representations and
warranties contained in this Section 3.2, neither Buyer nor any of its Affiliates or other
Persons makes any express or implied representation or warranty on behalf of Buyer.



ARTICLE IV




COVENANTS 




     Section 4.1 Commercially Reasonable Efforts.



 









 






          (a) Each of the Parties shall cooperate and use commercially reasonable efforts to take, or
cause to be taken, all actions and to do, or cause to be done, and assist and cooperate with the
other Parties to this Agreement in doing, all things necessary or desirable under applicable Law to
consummate, in the most expeditious manner practicable, the transactions contemplated by this
Agreement. Without limiting the generality of the foregoing, ResCap shall use commercially
reasonable 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 Person
for the purpose of obtaining any Required Seller Consent or any material costs and expenses of any
Person resulting from the process of obtaining any Required Seller Consent. Neither Buyer nor any
of its Affiliates shall have any obligation to obtain any Required Seller Consents;
provided, that, Buyer shall, and shall cause its Affiliates to, provide reasonable
cooperation in connection with ResCap’s efforts to obtain such Required Seller Consents. In
connection with seeking or obtaining any Required Seller Consent, neither ResCap nor any of its
controlled Affiliates shall consent to the imposition of any limitations, restrictions or
conditions applicable to Buyer, Subsidiary or any of the Subject Assets (including any modification
of the MSRAs).



     Section 4.2 Additional Covenants.




          (a) From the date of this Agreement through the Closing, (i) Seller shall not, directly or
indirectly, sell or enter into any definitive agreement to sell any of the Interests or the Subject
Assets, 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 Section
4.2(b) of the ResCap Disclosure Letters and, if it fails to satisfy such obligations during
that period, Buyer and Subsidiary shall have the rights described therein.



     Section 4.3 Servicing and Asset Management. At the Closing, Buyer, Subsidiary and ResCap shall 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 in accordance with Buyer’s payment instructions all amounts
due to “Owner” with respect to the Subject Assets under the MSRAs, except as otherwise requested in
writing by Buyer in connection with ResCap’s performance of services pursuant to the Servicing
Agreement. If at any time after the Closing, ResCap or any of its controlled Affiliates receives
proceeds or other payments in respect of any of the Subject Assets, ResCap shall, or shall cause
its controlled Affiliate to (if applicable), (i) accept and hold such proceeds or payments in trust
for the account and sole benefit 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 deduction of any kind) promptly (but in any event no later than three Business Days
after the date on which such 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 retain all beneficial ownership interest in any
Excluded Assets that are not sold to a third party before Closing, notwithstanding Subsidiary’s
continuing record ownership of such Excluded



 









 







Assets after the Closing. In accordance therewith,
Subsidiary shall, and Buyer shall cause Subsidiary to, (a) sell, transfer or otherwise dispose of
the Excluded Assets, including completion of any sale pursuant to any outstanding contract of sale
or, if any such contract of sale terminates, transfer to Seller or any of its Affiliates or any
third Person at Seller’s expense all right, title and interest in such Excluded Asset, in each case
in accordance with the written instructions of ResCap or Seller, and (b) to collect for the account
of ResCap and/or Seller all payments and other benefits under the MSRAs or the Note relating to
such Excluded Assets, including any lease payments with respect to such Excluded Assets pursuant to
the MSRAs or any proceeds received upon the sale of any Excluded Asset. If at any time after the
Closing, Subsidiary, Buyer or any of their respective controlled Affiliates receives proceeds or
other payments in respect of any 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 sole benefit 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 deduction of any kind) promptly (but in any event no later than three Business Days
after the date on which such Person receives such proceeds or payment) to ResCap. From and after
the Closing, Subsidiary shall not, and Buyer shall cause Subsidiary not to, cause or permit any
Excluded Asset to become subject 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 be under no obligation to (x) take any action that would be in violation of
applicable Law or any contract with respect to which Subsidiary is bound or subject or (y) except
as set forth in those Contracts 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
representations or warranties or provide any indemnification in respect of any of the Excluded
Assets or otherwise relating to any sale or transfer thereof, and (ii) any Liability incurred by
Subsidiary in connection with any sale, transfer, assignment or other disposition of any Excluded
Assets or otherwise arising from Subsidiary’s compliance with this Section 4.4 shall constitute
“Retained Liabilities” 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 Taxes
applicable to the Interests or Subject Assets attributable to periods (or portions thereof) ending
on or before the Closing Date. Buyer shall be liable for and shall pay all Taxes applicable to the
Interests or Subject Assets attributable to periods (or portions thereof) beginning on the day
after the Closing Date.




          (b) Except with respect to Taxes included in the calculation of the Proration Amount
hereunder, Seller or Buyer, as the case may be, shall promptly reimburse any Tax paid by the other
party all or a portion of which Tax is the responsibility of Seller or Buyer in accordance with the
terms 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 portion
that is the liability of each party, although failure to do so shall not relieve the other party
from 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 Assets
which such other party is responsible for preparing and filing; (ii) cooperate fully in preparing
for any audit of, or dispute with taxing authorities regarding, and any judicial or administrative
proceeding relating to, liability for Taxes, in the preparation or conduct of litigation or
investigation of claims, and in connection with the preparation of financial statements or other
documents to be filed with any taxing authority, in each case with respect to the Interests or
Subject Assets; (iii) make available to the other and to any taxing authority as reasonably
requested all information, records, and documents relating to Taxes relating to the Interests or
Subject Assets; (iv) provide timely notice to the other party in writing of any pending or
threatened Tax audits or assessments relating to the Interests or Subject Assets for taxable
periods for which the other party is responsible under this Section 4.4; and (v) furnish
the other party with copies of all correspondence received from any taxing authority in connection
with any taxable audit or information request with respect to any Tax periods for which the other
is 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 any
acquired asset) or other matters relating to the Interests or Subject Assets for any period ending
at or prior to the Closing, and without charge to Buyer, retain all original books, records and
other documents and all electronically archived data not deliverable to Buyer at Closing related to
the Interests or Subject Assets. Any information obtained pursuant to this Section 4.4 or
pursuant to any other Section hereof providing for the sharing of information or review of any Tax
Return or other schedule relating to Taxes shall be kept confidential by the Parties, except to the
extent 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 the
transactions contemplated by this Agreement.



     Section 4.6 Further Assurances. From time to time after the Closing, each Party hereto shall, and shall cause its Affiliates,
promptly to execute, acknowledge and deliver any other assurances or documents or instruments of
transfer reasonably requested by the other Party hereto and necessary for the requesting Party to
satisfy obligations hereunder or to obtain the benefits of the transactions contemplated hereby.



ARTICLE V




CONDITIONS TO CLOSING




     Section 5.1 Conditions to the Obligations of each of the Parties. The obligations of the Parties 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 decree
issued by any court or agency of competent jurisdiction or other legal restraint or prohibition
preventing the transactions contemplated by this Agreement or the other Transaction Documents shall
be 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 other Transaction Documents.



     Section 5.2 Conditions to the Obligations of ResCap and Seller. The obligations of ResCap and Seller to effect the Closing are subject to the satisfaction of
the following conditions:




          (a) Representations and Warranties. The representations and warranties of Buyer
contained in this Agreement shall be true and correct (without giving effect to any qualifications
as to materiality or similar qualifications therein) in all material respects as of the date hereof
and 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 in
Sections 3.2(a), 3.2(b) and 3.2(e) shall be true and correct in all
respects.




          (b) Covenants. Buyer shall have performed in all material respects all of its
obligations hereunder required to be performed by Buyer at or prior to the Closing Date and shall
have 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 duly
authorized representative of Buyer and dated the Closing Date, to the effect that the conditions
set 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 the Closing are subject to the satisfaction of the following
conditions:




          (a) Representations and Warranties. The representations and warranties of ResCap and
Seller contained in this Agreement shall be true and correct (without giving effect to any
qualifications as to materiality or similar qualifications therein) in all material respects as of
the date hereof and 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 in Sections 3.1(a), 3.1(b), 3.1(e)(i), 3.1(f) and
3.1(g) shall be true and correct in all respects.




          (b) Covenants. ResCap and Seller shall have, and shall have caused each of their
respective controlled Affiliates to have, performed in all material respects all of their
respective obligations hereunder required to be performed by such Person at or prior to the Closing
Date and shall have delivered all documentation required to be delivered by ResCap or Seller
pursuant to Section 2.6.




          (c) Consents and Approvals. All Required Seller Consents shall have been obtained or
made (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 the
Note)).




          (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 the
conditions set forth in Sections 5.3(a) through (c) have been satisfied.



 









 





ARTICLE VI




TERMINATION




     Section 6.1 Termination. This Agreement may be terminated at any time prior to the Closing:




          (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 does
not occur on or before 5:00 p.m. (New York City Time) on October 6, 2008 (the “Outside
Date”); or




          (c) by any Party, upon written notice to the other Parties, in the event that any Law shall be
enacted or any Governmental Entity shall have issued any order, decree or injunction or taken any
other action restraining, enjoining or prohibiting any of the transactions contemplated by this
Agreement or the other Transaction Documents, and such order, decree, injunction or other action
shall have become final and nonappealable.



     Section 6.2 Effect of Termination. In the event of any termination of this Agreement as provided 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 further force and effect.



ARTICLE VII




INDEMNIFICATION 




     Section 7.1 Survival of Representations, Warranties and Covenants. The representations and warranties set forth in Article III of this Agreement shall survive the
Closing until the second anniversary of the Closing Date, except that the representations and
warranties set forth in Sections 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 Closing until the expiration of the applicable statute of limitations. The covenants
in this Agreement shall 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 and
against any and all actions, suits, claims, proceedings, damages, losses, deficiencies,
liabilities, penalties, fines, interest, costs, damages, judgments, amounts paid in settlement and
expenses (including, without limitation, the cost and expenses of any litigations, actions,
judgments and settlements related thereto, and the reasonable costs and expenses of attorneys and
accountants incurred in the investigation or defense thereof or the enforcement of rights
hereunder) (collectively, “Losses”) related to or arising out of any one or more of the
following:



 









 






     (i) any breach of any representation or warranty made by ResCap or any of its
controlled Affiliates in this Agreement (without giving effect to any qualifications as to
materiality 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 by
ResCap 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 “ResCap
Indemnified Party”) from and against any and all Losses related to or arising out of any one or
more 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 qualifications
contained in such representations or warranties);




     (ii) any breach by Buyer of any covenant to be performed or complied with by Buyer
under this Agreement;




     (iii) the Assumed Liabilities; or




     (iv) the ownership or use of the Subject Assets after the Closing, except to the extent
such Losses constitute Retained Liabilities.



     Section 7.3 Notice of Claim; Defense.




          (a) If any third party institutes or asserts any claim, demand, investigation, action or
proceeding (each of the foregoing, a “Proceeding”) against any Person entitled to
indemnification under this Agreement (an “Indemnified Party”) that may give rise to Losses
for which a party (an “Indemnifying Party”) may be liable for indemnification under this
Article VII (a “Third-Party Claim”), then the Indemnified Party shall promptly send
to the Indemnifying Party a written notice specifying (to the extent such information is reasonable
available) the nature of such claim and, if available, the estimated amount of all related
Liabilities, which estimate shall be subject to change (a “Claim Notice”). The
Indemnifying Party shall be relieved of its indemnification obligations under this Article
VII to the extent that it is materially prejudiced by the failure of the Indemnified Parties to
provide a timely and adequate Claim Notice. If a Claim Notice has been given prior to the
expiration of the applicable representations and warranties, then the relevant representation and
warranties 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 in
the Claim Notice as may be required by court proceeding in the event of a litigation matter) after
receipt of the Claim Notice to notify the Indemnified Party that it desires to assume and
thereafter conduct the defense of the Third-Party Claim with counsel of its choice



 









 






reasonably satisfactory to the Indemnified Party, unless the Indemnified Party has notified the Indemnifying
Party that it has determined in good faith that (i) there is a reasonable probability that such
claim may materially and adversely affect it or its Affiliates other than as a 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 or additional to those
available to the Indemnifying Party and that could be adverse to the Indemnifying Party. If the
Indemnifying Party assumes the defense of the Third Party Claim, it shall have conclusively
established its obligation to indemnify the Indemnified Party with respect to such Third Party
Claim. The Indemnified Parties may participate, at their own expense and through legal counsel of
their choice, in any such Proceeding; provided, that the Indemnified Parties and their
counsel shall reasonably cooperate with the Indemnifying Party and its 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 to forbear to take, any action or does
not provide for a full and complete written release by such third 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 any Third-Party Claim unless it involves only
the payment of money damages all of which will be borne by the Indemnifying Party in accordance
with its indemnification obligations hereunder and does not impose an injunction or other equitable
relief upon the Indemnified Party or otherwise involve any admission of liability or wrongdoing by
the Indemnified Party, in each case, without the Indemnified Party’s prior
written consent, which shall not be unreasonably withheld, conditioned or delayed.
Notwithstanding the foregoing, if the Indemnifying Party elects not to retain counsel and assume
control of such defense or if both the Indemnifying Party and any Indemnified Party are parties to
or subjects of such Proceeding and conflicts of interests exist between the Indemnifying Party and
such Indemnified Party, then the Indemnified Parties shall retain counsel reasonably acceptable to
the Indemnifying Party in connection with such Proceeding and assume control of the defense in
connection with such Proceeding, and, to the extent the Indemnified Party is entitled to
indemnification hereunder in connection with such Proceeding, the fees, charges and disbursements
of not more than one firm as such counsel per jurisdiction selected by the Indemnified Parties
shall be reimbursed by the Indemnifying Party. Under no circumstances will the Indemnifying Party
have any liability in connection with any settlement of any Proceeding that is entered into without
its 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 the
Indemnifying Party, each Indemnified Party shall (i) reasonably cooperate with the Indemnifying
Party in connection with the defense of any Third-Party Claim and (ii) grant the Indemnifying Party
and its counsel, experts and representatives reasonable access, during normal business hours, to
the books, records, personnel (including as witnesses or deponents at trial and during the
discovery process) and properties of the Indemnified Party to the extent reasonably related to the
Claim Notice, in the case of each of clauses (i) and (ii) of this sentence, at no
cost to the Indemnifying Party (other than for reasonable out of pocket expenses of the Indemnified
Parties).




          (d) From and after the Closing, except in the case of fraud, the indemnification obligations
set 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 any of the warranties or covenants
contained herein or (b) otherwise with respect to this Agreement and the transactions contemplated
by this Agreement and matters arising out of, relating to or resulting 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 or concurrent 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 harmless
any 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 such
amounts), except to the extent such amounts are required to be paid to a third party other than an
Indemnified Party or a Person affiliated therewith.




          (b) Except in the case of fraud or intentional misrepresentation, ResCap shall not have any
obligation to indemnify any Buyer Indemnified Party pursuant to Section 7.2(a)(i) relating
to or arising out of a breach of any of the representations and warranties made by ResCap and
Seller pursuant to Section 3.1(e)(ii) or (iii) unless and until the aggregate
amount 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 once the
Deductible is exceeded, ResCap shall be liable for only those Losses in excess of the Deductible.




          (c) Except in the case of fraud or intentional misrepresentation, in no event shall the
aggregate liability of ResCap for Losses pursuant to Section 7.2(a)(i) relating to or
arising out of a breach of any of the representations and warranties made by ResCap and Seller
pursuant to Section 3.1(e)(ii) or (iii) exceed an amount equal to the Firm Bid
Price, 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 neither
the Deductible nor the Cap shall apply with respect to any Losses pursuant to which any Buyer
Indemnified Party is entitled to indemnification pursuant to Section 7.2(a)(iii).




          (e) 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 actually received by the Indemnified Person (or any of its controlled Affiliates
that are Indemnified Persons) with respect to such Losses and (ii) any other recoveries pursuant to
indemnification rights directly relating to such Loss obtained by the Indemnified Person (or any of
its controlled Affiliates that are Indemnified Persons) from any other third party, less, in the
case of each of clauses (i) and (ii) of this sentence, all Losses related to the
pursuing and receipt of such recoveries and any related recoveries. If any such net proceeds or
recoveries are actually received by an Indemnified Person (or any of its controlled Affiliates that
are Indemnified Persons) 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 or recoveries (up to the amount of
the Indemnifying Person’s payment).



 









 






          (f) 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 from which the Indemnified
Person (and its controlled Affiliates that are Indemnified Persons) has insurance in respect of the
Losses to which such payment relates. Such Indemnified Person (and its controlled Affiliates that
are Indemnified Persons) and Indemnifying Person shall execute upon request all instruments
reasonably necessary to evidence or further perfect such subrogation rights. To the extent the
exercise of rights under this Section 7.4(f) directly results in higher insurance premiums
for 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 to
indemnify an Indemnified Party for a Third Party Claim (or been deemed to have confirmed its
obligation to indemnify by assuming the defense of such Third Party Claim) and (ii) the Indemnified
Party 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 use
commercially reasonable efforts to enforce its rights in respect of such third party
indemnification; provided, that (x) any out-of-pocket costs or expenses incurred by the
Indemnified Party in connection with such efforts shall constitute Losses hereunder and
(y) the Indemnified Party shall not be required to bring any action or pursue any claim under
arbitration or mediation to enforce its rights or otherwise take any action that the Indemnified
Party determines in its reasonable judgment would be detrimental in any material respect to any
ongoing business relationship with such third party. Notwithstanding anything to the contrary in
this Section 7.4, ResCap shall not have any right, directly or indirectly, to pursue any
indemnification rights of Buyer or Subsidiary under the MSRAs or otherwise, except to the extent
directed 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 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 such efforts (i) would
require such party to pay any out-of-pocket amount; provided, however, that if an
Indemnified Party has actual knowledge of an opportunity to mitigate any Loss that involves paying
an out-of-pocket amount, then such Indemnified Party shall provide reasonable notification to the
Indemnifying Party of such opportunity and if, after receipt of such notification, the Indemnifying
Party elects to provide an Indemnified Party with immediately available funds with instructions to
use such funds to mitigate any Losses, such Indemnified Party shall use such funds for purposes of
satisfying its obligations under this subsection (h) in accordance with the reasonable
instructions of the Indemnifying Party (it being understood and agreed that funds supplied by an
Indemnifying Party to an Indemnified Party and used to mitigate Losses shall not represent payment
by 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 not
relieve the Indemnifying Party of any of its indemnification obligations hereunder except to the
extent, and solely to the extent, the Indemnified Party fails to use commercially reasonable
efforts to notify the Indemnifying Party of an opportunity to mitigate any Loss as contemplated
hereby and the Indemnifying Party is materially prejudiced by such



 









 






failure, or (ii) otherwise would
be detrimental in any material respect to any ongoing business relationship of the Indemnified
Party with any third party.



ARTICLE VIII




MISCELLANEOUS




     Section 8.1 Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing
and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in
person, by overnight courier or by facsimile (with confirmation copies delivered personally or by
courier on or before the third Business Day after such facsimile delivery) to the respective
Parties at the following addresses (or at such other address for a Party as shall be specified by
like notice):



	 	 	 
	     If to Seller,
Subsidiary (prior to
Closing), or ResCap:

	 	Residential Funding Company, LLC 


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 (after the
Closing):

	 	Cerberus Capital Management, L.P. 


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 such
courtesy copies shall not invalidate any notice properly delivered to ResCap or Buyer as set forth
above.



     Section 8.2 Amendment; Waiver. Any provision of this Agreement may be amended or waived if, and only if, such amendment or
waiver is in writing and signed, in the case of an amendment, by ResCap and Buyer, or in the case
of a waiver, by the Party against whom the waiver is to be effective. No failure or delay by
any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof
nor shall any single or partial exercise thereof preclude any other 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 binding upon and inure to the benefit of the Parties hereto and their
respective successors, legal representatives and permitted assigns. No Party to this Agreement may
assign any of its rights or delegate any of its obligations under this Agreement, by operation of
Law or otherwise, without the prior 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 of their respective successors, legal representatives and permitted
assigns, any rights or remedies under or by reason of this Agreement; provided, that, the Buyer
Indemnified Parties (solely with respect to their indemnification rights pursuant to this
Agreement) and the ResCap Indemnified Parties (solely with respect to their indemnification rights
pursuant to this Agreement) shall be third party beneficiaries of such Sections of this Agreement,
entitled to enforce those specified provisions hereof.



     Section 8.4 Entire Agreement. This Agreement (including the Exhibits, the ResCap Disclosure Letters hereto and any certificate
or document required to be executed and delivered in connection with the execution of this
Agreement or the consummation of the transactions contemplated hereby), the other Transaction
Documents contain the entire agreement between the Parties hereto with respect to the subject
matter hereof and thereof and supersedes all prior agreements and understandings, oral or written,
with respect to such matters.



     Section 8.5 Fulfillment of Obligations. Any obligation of any Party to any other Party under 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 such Party.



     Section 8.6 Expenses. Except as otherwise specified in this Agreement, all costs and expenses, including fees and
disbursements of counsel, financial advisors and accountants, incurred in connection with this
Agreement and the transactions contemplated hereby and thereby shall be paid by the Party incurring
such costs and expenses, whether or not the Closing shall have occurred.



     Section 8.7 Governing Law; Submission to Jurisdiction; Selection of Forum; Waiver of Trial
by Jury. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. Any action or proceeding in respect of
any claim arising out of or related to this Agreement or the transactions contained in or
contemplated hereby against any Party hereto shall be brought in the Chancery Court of the State of
Delaware,
any other state court of the State of Delaware or the United States District Court for the District
of Delaware (the “Chosen Courts”), and solely in connection with claims arising under this
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 objection to laying
venue in any such action or proceeding in the Chosen Courts, (iii) waives any objection that the
Chosen Courts are an inconvenient forum or do not have jurisdiction over any Party hereto and (iv)
agrees that service of process upon such Party in any such action or proceeding shall be effective
if notice is given in accordance with Section 8.1 of this Agreement. Each Party hereto irrevocably
waives any and all right to trial by jury in any legal proceeding arising out of or relating to
this Agreement or the transactions contemplated hereby.



     Section 8.8 Counterparts. This Agreement may be executed in one or more counterparts, each of 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 will be 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 are for convenience purposes
only, and shall not be deemed to limit or affect any of the provisions hereof.



     Section 8.10 Severability. The provisions of this Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity or enforceability of the other
provisions hereof. If any provision of this Agreement, or the application thereof to any Person or
any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be
substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and
purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the
application of such provision to other Persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity
or enforceability of such provision, or the application thereof, in any other jurisdiction.



 









 





     Section 8.11 Commitment Regarding Actions of Controlled Affiliates. With respect to any covenant requiring any controlled Party or controlled Affiliate of a Party
to take an action or omit to take an action, such Party shall cause such controlled Affiliate to
comply with such covenant. Any failure by any Party’s controlled Affiliates to do so shall also
constitute a breach of such covenant by such Party.



     Section 8.12 Specific Performance. Each Party acknowledges that money damages would be both incalculable and an insufficient remedy
for any breach of this Agreement by such Party and that any such breach would cause the other Party
hereto irreparable harm. Accordingly, each Party hereto also agrees that, in the event of any
breach or threatened breach of the provisions of this Agreement by such Party, the
other Party hereto shall be entitled to equitable relief without the requirement of posting a bond
or other security, including in the form of injunctions and orders for specific performance.



[Signature page follows.]




 









 








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



	 	 	 	 	 
	 	RESIDENTIAL CAPITAL, LLC

 	 
	 	By:  	/s/ James Young
 	 
	 	 	Name:  	James Young                                   	 
	 	 	Title:  	Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	DOA HOLDING PROPERTIES, LLC

 	 
	 	By:  	/s/ David Flavin
 	 
	 	 	Name:  	David Flavin 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	DOA PROPERTIES IIIB (KB MODELS), LLC

 	 
	 	By:  	/s/ David Flavin
 	 
	 	 	Name:  	David Flavin 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	MHPOOL HOLDINGS LLC

 	 
	 	By:  	/s/ Ronald J. Kravit
 	 
	 	 	Name:  	Ronald J. Kravit 	 
	 	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



EXHIBIT A




List of Assets



Pool
1 — All Assets





	 	 	 	 	 	 	 	 	 	 	 	 	 
	File Number	 	Allocated Firm Bid	 	File Number	 	Allocated Firm Bid
	6913
	 	$	131,221	 	 	 	12632	 	 	$	106,972	 
	6914
	 	$	118,521	 	 	 	12634	 	 	$	113,927	 
	6915
	 	$	97,355	 	 	 	12635	 	 	$	125,370	 
	7428
	 	$	185,406	 	 	 	12636	 	 	$	111,795	 
	7429
	 	$	161,741	 	 	 	12082	 	 	$	149,227	 
	7430
	 	$	123,415	 	 	 	12083	 	 	$	163,817	 
	7431
	 	$	94,677	 	 	 	12343	 	 	$	138,898	 
	7521
	 	$	121,025	 	 	 	12344	 	 	$	138,898	 
	7042
	 	$	143,835	 	 	 	12345	 	 	$	365,468	 
	7043
	 	$	141,355	 	 	 	12346	 	 	$	380,294	 
	7441
	 	$	109,941	 	 	 	11681	 	 	$	147,206	 
	7442
	 	$	128,128	 	 	 	11682	 	 	$	154,067	 
	7853
	 	$	157,062	 	 	 	12219	 	 	$	109,465	 
	7854
	 	$	162,849	 	 	 	12220	 	 	$	136,994	 
	7855
	 	$	185,996	 	 	 	11361	 	 	$	134,520	 
	7856
	 	$	177,729	 	 	 	11362	 	 	$	119,569	 
	7857
	 	$	197,570	 	 	 	11363	 	 	$	112,803	 
	7566
	 	$	132,207	 	 	 	10585	 	 	$	105,163	 
	7567
	 	$	112,283	 	 	 	10586	 	 	$	122,231	 
	7568
	 	$	99,595	 	 	 	10587	 	 	$	81,270	 
	7569
	 	$	117,143	 	 	 	10595	 	 	$	88,157	 
	7570
	 	$	133,735	 	 	 	10596	 	 	$	84,779	 
	7571
	 	$	149,487	 	 	 	11452	 	 	$	97,756	 
	7465
	 	$	113,624	 	 	 	11457	 	 	$	88,662	 
	7466
	 	$	89,861	 	 	 	10588	 	 	$	89,035	 
	7467
	 	$	102,615	 	 	 	11628	 	 	$	76,479	 
	8570
	 	$	103,469	 	 	 	11629	 	 	$	83,449	 
	8571
	 	$	138,399	 	 	 	11630	 	 	$	89,762	 
	8742
	 	$	108,087	 	 	 	11631	 	 	$	120,690	 
	8743
	 	$	133,628	 	 	 	11632	 	 	$	84,932	 
	9296
	 	$	175,880	 	 	 	11633	 	 	$	80,175	 
	8117
	 	$	122,625	 	 	 	11634	 	 	$	77,588	 
	8118
	 	$	127,755	 	 	 	11635	 	 	$	82,243	 
	8331
	 	$	197,229	 	 	 	11636	 	 	$	72,375	 
	8325
	 	$	136,024	 	 	 	11638	 	 	$	88,016	 
	8326
	 	$	143,186	 	 	 	11468	 	 	$	213,220	 
	9258
	 	$	133,008	 	 	 	11469	 	 	$	196,661	 
	9259
	 	$	148,135	 	 	 	11250	 	 	$	160,106	 
	8205
	 	$	118,875	 	 	 	12585	 	 	$	103,247	 
	8207
	 	$	127,665	 	 	 	12817	 	 	$	204,829	 
	8355
	 	$	107,373	 	 	 	12818	 	 	$	163,351	 
	8356
	 	$	121,747	 	 	 	12250	 	 	$	251,210	 
	8357
	 	$	112,370	 	 	 	10774	 	 	$	188,119	 
	8358
	 	$	92,153	 	 	 	10777	 	 	$	184,439	 
	8835
	 	$	104,711	 	 	 	10778	 	 	$	169,757	 
	8836
	 	$	107,185	 	 	 	10779	 	 	$	142,377	 
	8837
	 	$	76,348	 	 	 	10780	 	 	$	250,285	 
	8838
	 	$	97,478	 	 	 	10781	 	 	$	238,986	 
	8839
	 	$	133,156	 	 	 	10782	 	 	$	184,439	 
	8840
	 	$	103,900	 	 	 	10783	 	 	$	163,215	 
	8846
	 	$	178,589	 	 	 	10784	 	 	$	273,068	 
	9051
	 	$	129,030	 	 	 	10785	 	 	$	275,081	 






 









 






Pool
1 — All Assets





	 	 	 	 	 	 	 	 	 	 	 	 	 
	File Number	 	Allocated Firm Bid	 	File Number	 	Allocated Firm Bid
	9052
	 	$	180,281	 	 	 	10786	 	 	$	303,277	 
	9053
	 	$	143,377	 	 	 	10791	 	 	$	261,600	 
	9054
	 	$	146,738	 	 	 	10792	 	 	$	288,040	 
	9055
	 	$	143,504	 	 	 	10799	 	 	$	196,153	 
	9056
	 	$	143,504	 	 	 	10800	 	 	$	182,341	 
	9057
	 	$	141,181	 	 	 	10802	 	 	$	268,037	 
	8098
	 	$	110,288	 	 	 	10787	 	 	$	192,824	 
	8099
	 	$	156,168	 	 	 	10788	 	 	$	180,463	 
	8577
	 	$	195,063	 	 	 	10789	 	 	$	176,817	 
	8578
	 	$	176,574	 	 	 	10790	 	 	$	167,403	 
	8928
	 	$	127,697	 	 	 	11860	 	 	$	271,433	 
	8855
	 	$	128,831	 	 	 	11863	 	 	$	125,926	 
	8856
	 	$	159,855	 	 	 	11864	 	 	$	158,762	 
	9389
	 	$	76,939	 	 	 	11865	 	 	$	137,848	 
	9397
	 	$	158,311	 	 	 	11866	 	 	$	122,980	 
	8538
	 	$	153,052	 	 	 	11867	 	 	$	150,252	 
	8539
	 	$	163,179	 	 	 	11868	 	 	$	163,928	 
	9615
	 	$	138,787	 	 	 	11869	 	 	$	168,869	 
	9705
	 	$	93,674	 	 	 	11870	 	 	$	173,327	 
	9774
	 	$	157,594	 	 	 	11919	 	 	$	193,293	 
	9775
	 	$	148,942	 	 	 	10793	 	 	$	156,737	 
	9776
	 	$	246,504	 	 	 	10795	 	 	$	171,394	 
	9777
	 	$	136,664	 	 	 	11874	 	 	$	141,381	 
	9778
	 	$	193,893	 	 	 	11875	 	 	$	137,364	 
	9639
	 	$	156,016	 	 	 	12938	 	 	$	182,072	 
	9640
	 	$	186,166	 	 	 	12940	 	 	$	240,617	 
	9887
	 	$	161,330	 	 	 	13384	 	 	$	238,529	 
	9888
	 	$	182,121	 	 	 	13385	 	 	$	276,844	 
	9889
	 	$	242,011	 	 	 	13386	 	 	$	222,728	 
	9890
	 	$	220,215	 	 	 	13387	 	 	$	156,237	 
	10731
	 	$	124,278	 	 	 	10977	 	 	$	168,438	 
	9800
	 	$	115,917	 	 	 	10978	 	 	$	171,882	 
	9801
	 	$	107,897	 	 	 	10979	 	 	$	172,275	 
	10707
	 	$	181,180	 	 	 	11624	 	 	$	166,649	 
	10708
	 	$	187,858	 	 	 	11625	 	 	$	127,888	 
	9562
	 	$	155,106	 	 	 	11626	 	 	$	134,095	 
	9829
	 	$	209,464	 	 	 	11967	 	 	$	242,274	 
	9830
	 	$	198,270	 	 	 	11968	 	 	$	246,276	 
	9831
	 	$	200,376	 	 	 	11969	 	 	$	248,277	 
	10223
	 	$	175,008	 	 	 	11972	 	 	$	278,939	 
	10474
	 	$	143,950	 	 	 	11973	 	 	$	261,609	 
	10475
	 	$	145,843	 	 	 	11974	 	 	$	230,960	 
	10476
	 	$	154,302	 	 	 	11975	 	 	$	229,946	 
	11047
	 	$	153,173	 	 	 	11976	 	 	$	270,201	 
	11048
	 	$	148,654	 	 	 	10611	 	 	$	152,791	 
	9535
	 	$	104,053	 	 	 	10618	 	 	$	97,524	 
	9536
	 	$	77,052	 	 	 	10619	 	 	$	108,837	 
	9537
	 	$	98,792	 	 	 	10620	 	 	$	125,513	 
	9538
	 	$	139,127	 	 	 	12676	 	 	$	201,853	 
	9544
	 	$	97,343	 	 	 	12677	 	 	$	163,712	 
	9545
	 	$	83,615	 	 	 	13576	 	 	$	214,744	 
	9546
	 	$	95,203	 	 	 	13577	 	 	$	166,150	 






 









 






Pool
1 — All Assets





	 	 	 	 	 	 	 	 	 	 	 	 	 
	File Number	 	Allocated Firm Bid	 	File Number	 	Allocated Firm Bid
	9547
	 	$	117,614	 	 	 	13578	 	 	$	125,203	 
	9697
	 	$	95,925	 	 	 	13579	 	 	$	121,314	 
	9698
	 	$	98,863	 	 	 	13580	 	 	$	112,961	 
	9805
	 	$	89,733	 	 	 	13581	 	 	$	123,182	 
	9811
	 	$	67,684	 	 	 	10690	 	 	$	91,938	 
	10574
	 	$	104,085	 	 	 	10691	 	 	$	96,740	 
	10576
	 	$	85,320	 	 	 	10692	 	 	$	108,073	 
	10577
	 	$	86,342	 	 	 	10693	 	 	$	195,523	 
	10578
	 	$	79,795	 	 	 	11531	 	 	$	108,127	 
	10580
	 	$	103,848	 	 	 	11532	 	 	$	101,885	 
	10581
	 	$	82,514	 	 	 	11533	 	 	$	96,226	 
	10582
	 	$	77,483	 	 	 	11534	 	 	$	89,309	 
	10589
	 	$	80,495	 	 	 	11535	 	 	$	83,915	 
	10593
	 	$	84,980	 	 	 	11536	 	 	$	88,274	 
	10594
	 	$	81,593	 	 	 	11537	 	 	$	94,856	 
	9689
	 	$	174,279	 	 	 	11538	 	 	$	96,996	 
	10630
	 	$	129,663	 	 	 	11539	 	 	$	212,052	 
	9641
	 	$	257,731	 	 	 	11540	 	 	$	166,389	 
	9656
	 	$	137,361	 	 	 	11582	 	 	$	109,421	 
	10658
	 	$	88,532	 	 	 	10687	 	 	$	129,760	 
	10335
	 	$	223,326	 	 	 	10688	 	 	$	97,755	 
	10336
	 	$	185,916	 	 	 	10689	 	 	$	119,643	 
	10337
	 	$	215,585	 	 	 	10997	 	 	$	168,360	 
	10338
	 	$	178,613	 	 	 	10998	 	 	$	177,795	 
	10339
	 	$	221,706	 	 	 	10999	 	 	$	276,127	 
	10480
	 	$	221,326	 	 	 	11000	 	 	$	238,325	 
	10481
	 	$	253,946	 	 	 	11001	 	 	$	216,250	 
	10482
	 	$	257,562	 	 	 	11002	 	 	$	287,987	 
	10483
	 	$	339,902	 	 	 	11003	 	 	$	296,899	 
	9872
	 	$	236,349	 	 	 	11004	 	 	$	302,010	 
	9873
	 	$	184,065	 	 	 	12088	 	 	$	132,021	 
	9874
	 	$	174,989	 	 	 	12089	 	 	$	117,550	 
	9875
	 	$	128,729	 	 	 	12090	 	 	$	107,857	 
	9876
	 	$	232,761	 	 	 	12091	 	 	$	125,458	 
	9877
	 	$	229,292	 	 	 	12788	 	 	$	222,169	 
	9878
	 	$	156,058	 	 	 	12789	 	 	$	145,052	 
	9879
	 	$	145,424	 	 	 	12477	 	 	$	188,949	 
	10601
	 	$	127,930	 	 	 	12478	 	 	$	195,659	 
	10602
	 	$	122,419	 	 	 	12479	 	 	$	200,759	 
	10607
	 	$	160,700	 	 	 	12480	 	 	$	216,662	 
	10608
	 	$	161,927	 	 	 	12481	 	 	$	229,318	 
	10609
	 	$	172,088	 	 	 	11904	 	 	$	169,821	 
	10663
	 	$	201,243	 	 	 	11905	 	 	$	164,335	 
	10664
	 	$	146,050	 	 	 	11906	 	 	$	159,731	 
	10665
	 	$	142,035	 	 	 	11907	 	 	$	203,712	 
	9630
	 	$	111,567	 	 	 	11908	 	 	$	175,662	 
	10675
	 	$	100,617	 	 	 	11884	 	 	$	180,365	 
	10676
	 	$	107,367	 	 	 	11885	 	 	$	182,227	 
	10677
	 	$	81,870	 	 	 	11886	 	 	$	193,666	 
	10678
	 	$	102,777	 	 	 	11887	 	 	$	184,515	 
	10679
	 	$	98,080	 	 	 	11888	 	 	$	194,377	 
	10680
	 	$	105,817	 	 	 	11889	 	 	$	208,091	 






 









 







Pool
1 — All Assets





	 	 	 	 	 	 	 	 	 	 	 	 	 
	File Number	 	Allocated Firm Bid	 	File Number	 	Allocated Firm Bid
	10681
	 	$	110,630	 	 	 	10833	 	 	$	451,045	 
	10682
	 	$	123,179	 	 	 	10834	 	 	$	510,329	 
	9786
	 	$	141,204	 	 	 	10835	 	 	$	413,089	 
	9787
	 	$	126,393	 	 	 	9947	 	 	$	327,080	 
	9788
	 	$	121,854	 	 	 	12289	 	 	$	185,213	 
	9789
	 	$	116,624	 	 	 	12290	 	 	$	175,989	 
	9790
	 	$	123,770	 	 	 	12291	 	 	$	169,757	 
	9885
	 	$	118,031	 	 	 	12292	 	 	$	147,097	 
	9886
	 	$	108,499	 	 	 	12773	 	 	$	229,201	 
	9584
	 	$	188,769	 	 	 	12774	 	 	$	221,827	 
	9585
	 	$	201,893	 	 	 	12775	 	 	$	184,282	 
	9586
	 	$	221,977	 	 	 	12776	 	 	$	409,103	 
	9587
	 	$	251,386	 	 	 	12777	 	 	$	402,835	 
	9941
	 	$	398,328	 	 	 	12778	 	 	$	428,923	 
	9942
	 	$	414,118	 	 	 	10936	 	 	$	209,039	 
	9943
	 	$	332,291	 	 	 	10937	 	 	$	195,737	 
	9944
	 	$	412,177	 	 	 	10938	 	 	$	214,213	 
	9945
	 	$	381,128	 	 	 	10939	 	 	$	200,488	 
	9946
	 	$	415,983	 	 	 	10940	 	 	$	209,842	 
	9815
	 	$	120,256	 	 	 	10941	 	 	$	211,952	 
	9816
	 	$	129,843	 	 	 	10943	 	 	$	160,664	 
	9817
	 	$	169,699	 	 	 	10944	 	 	$	167,778	 
	9818
	 	$	145,217	 	 	 	10945	 	 	$	169,765	 
	11012
	 	$	132,903	 	 	 	10946	 	 	$	174,791	 
	11013
	 	$	118,912	 	 	 	10947	 	 	$	189,549	 
	11014
	 	$	112,567	 	 	 	10950	 	 	$	168,155	 
	9518
	 	$	218,827	 	 	 	10951	 	 	$	183,240	 
	9519
	 	$	213,275	 	 	 	10952	 	 	$	210,019	 
	9520
	 	$	218,827	 	 	 	10953	 	 	$	194,734	 
	9521
	 	$	195,891	 	 	 	10954	 	 	$	170,646	 
	10754
	 	$	131,687	 	 	 	10955	 	 	$	109,892	 
	10755
	 	$	134,775	 	 	 	10956	 	 	$	108,580	 
	10277
	 	$	146,627	 	 	 	10957	 	 	$	119,490	 
	10278
	 	$	178,865	 	 	 	10958	 	 	$	137,617	 
	10279
	 	$	187,203	 	 	 	10959	 	 	$	132,512	 
	10280
	 	$	192,611	 	 	 	10960	 	 	$	149,341	 
	10281
	 	$	209,524	 	 	 	11495	 	 	$	107,660	 
	10632
	 	$	122,347	 	 	 	11496	 	 	$	98,357	 
	10633
	 	$	163,149	 	 	 	11500	 	 	$	316,935	 
	10634
	 	$	200,478	 	 	 	11501	 	 	$	264,554	 
	12222
	 	$	103,623	 	 	 	11497	 	 	$	94,583	 
	12223
	 	$	132,766	 	 	 	11498	 	 	$	111,357	 
	12221
	 	$	74,668	 	 	 	11499	 	 	$	134,731	 
	12228
	 	$	75,184	 	 	 	12049	 	 	$	103,415	 
	12229
	 	$	102,368	 	 	 	12050	 	 	$	82,072	 
	12230
	 	$	93,457	 	 	 	11842	 	 	$	118,752	 
	12231
	 	$	120,573	 	 	 	11844	 	 	$	234,521	 
	12233
	 	$	153,706	 	 	 	11845	 	 	$	179,283	 
	12234
	 	$	128,223	 	 	 	11848	 	 	$	135,230	 
	12224
	 	$	86,277	 	 	 	11846	 	 	$	251,693	 
	12225
	 	$	75,216	 	 	 	11847	 	 	$	205,572	 
	12226
	 	$	89,185	 	 	 	13537	 	 	$	73,190	 






 









 






Pool
1 — All Assets





	 	 	 	 	 	 	 	 	 	 	 	 	 
	File Number	 	Allocated Firm Bid	 	File Number	 	Allocated Firm Bid
	12227
	 	$	108,284	 	 	 	13538	 	 	$	73,177	 
	12232
	 	$	69,515	 	 	 	13539	 	 	$	79,510	 
	11810
	 	$	169,467	 	 	 	13540	 	 	$	78,454	 
	12833
	 	$	129,716	 	 	 	13541	 	 	$	182,364	 
	12834
	 	$	152,448	 	 	 	13542	 	 	$	168,250	 
	12835
	 	$	172,249	 	 	 	12918	 	 	$	272,941	 
	12836
	 	$	151,913	 	 	 	12919	 	 	$	260,688	 
	10736
	 	$	159,761	 	 	 	12920	 	 	$	318,266	 
	10737
	 	$	144,174	 	 	 	12921	 	 	$	312,525	 
	12759
	 	$	168,153	 	 	 	12922	 	 	$	319,293	 
	12760
	 	$	150,226	 	 	 	12923	 	 	$	682,586	 
	12761
	 	$	171,195	 	 	 	12924	 	 	$	358,173	 
	10732
	 	$	96,410	 	 	 	12925	 	 	$	391,089	 
	10733
	 	$	85,707	 	 	 	11672	 	 	$	258,977	 
	10734
	 	$	83,074	 	 	 	11673	 	 	$	233,718	 
	12763
	 	$	96,952	 	 	 	11674	 	 	$	228,945	 
	12764
	 	$	98,007	 	 	 	11675	 	 	$	196,999	 
	12349
	 	$	112,301	 	 	 	11676	 	 	$	218,122	 
	12350
	 	$	119,112	 	 	 	11677	 	 	$	193,343	 
	10907
	 	$	132,443	 	 	 	11668	 	 	$	176,749	 
	10905
	 	$	137,732	 	 	 	11669	 	 	$	186,524	 
	10906
	 	$	153,766	 	 	 	11670	 	 	$	184,641	 
	12624
	 	$	174,623	 	 	 	11671	 	 	$	165,891	 
	12625
	 	$	198,397	 	 	 	11241	 	 	$	86,771	 
	10878
	 	$	134,890	 	 	 	11242	 	 	$	87,379	 
	10879
	 	$	117,005	 	 	 	10744	 	 	$	147,744	 
	10880
	 	$	143,181	 	 	 	10748	 	 	$	125,198	 
	10881
	 	$	150,666	 	 	 	10749	 	 	$	137,391	 
	10882
	 	$	195,156	 	 	 	10745	 	 	$	115,458	 
	10883
	 	$	195,809	 	 	 	10746	 	 	$	108,337	 
	12383
	 	$	147,107	 	 	 	10747	 	 	$	102,824	 
	12384
	 	$	120,927	 	 	 	12271	 	 	$	123,113	 
	12631
	 	$	104,655	 	 	 	12272	 	 	$	151,315	 
	 
	 	 	 	 	 	 	12273	 	 	$	148,371	 






 









 






Pool
2 — All Assets





	 	 	 	 	 
	File Number	 	Allocated Firm Bid
	8711
	 	$	260,558	 
	10023
	 	$	122,261	 
	10034
	 	$	244,590	 
	10039
	 	$	92,591	 






 









 









EXHIBIT B




Excluded Assets



Pool
1 — Excluded Assets





	 	 	 	 	 	 	 	 	 	 	 	 	 
	File Number	 	Allocated Bid Price	 	File Number	 	Allocated Bid Price
	6913
	 	$	131,221	 	 	 	10337	 	 	$	215,585	 
	7428
	 	$	185,406	 	 	 	10338	 	 	$	178,613	 
	7431
	 	$	94,677	 	 	 	10339	 	 	$	221,706	 
	7521
	 	$	121,025	 	 	 	10483	 	 	$	339,902	 
	7042
	 	$	143,835	 	 	 	9584	 	 	$	188,769	 
	7043
	 	$	141,355	 	 	 	9941	 	 	$	398,328	 
	7441
	 	$	109,941	 	 	 	9942	 	 	$	414,118	 
	7442
	 	$	128,128	 	 	 	9943	 	 	$	332,291	 
	7853
	 	$	157,062	 	 	 	10732	 	 	$	96,410	 
	7854
	 	$	162,849	 	 	 	10733	 	 	$	85,707	 
	7855
	 	$	185,996	 	 	 	10734	 	 	$	83,074	 
	7856
	 	$	177,729	 	 	 	12763	 	 	$	96,952	 
	7857
	 	$	197,570	 	 	 	12764	 	 	$	98,007	 
	7568
	 	$	99,595	 	 	 	10880	 	 	$	143,181	 
	7569
	 	$	117,143	 	 	 	12631	 	 	$	104,655	 
	7571
	 	$	149,487	 	 	 	12817	 	 	$	204,829	 
	7465
	 	$	113,624	 	 	 	12250	 	 	$	251,210	 
	7466
	 	$	89,861	 	 	 	10774	 	 	$	188,119	 
	7467
	 	$	102,615	 	 	 	10791	 	 	$	261,600	 
	8570
	 	$	103,469	 	 	 	10792	 	 	$	288,040	 
	8571
	 	$	138,399	 	 	 	10802	 	 	$	268,037	 
	8742
	 	$	108,087	 	 	 	11860	 	 	$	271,433	 
	8743
	 	$	133,628	 	 	 	11919	 	 	$	193,293	 
	8117
	 	$	122,625	 	 	 	10793	 	 	$	156,737	 
	8118
	 	$	127,755	 	 	 	10795	 	 	$	171,394	 
	8331
	 	$	197,229	 	 	 	12940	 	 	$	240,617	 
	8325
	 	$	136,024	 	 	 	13384	 	 	$	238,529	 
	8326
	 	$	143,186	 	 	 	13385	 	 	$	276,844	 
	9258
	 	$	133,008	 	 	 	13386	 	 	$	222,728	 
	9259
	 	$	148,135	 	 	 	10978	 	 	$	171,882	 
	8836
	 	$	107,185	 	 	 	10979	 	 	$	172,275	 
	8838
	 	$	97,478	 	 	 	11624	 	 	$	166,649	 
	8839
	 	$	133,156	 	 	 	11625	 	 	$	127,888	 
	8840
	 	$	103,900	 	 	 	11626	 	 	$	134,095	 
	8846
	 	$	178,589	 	 	 	10693	 	 	$	195,523	 
	9052
	 	$	180,281	 	 	 	11539	 	 	$	212,052	 
	9053
	 	$	143,377	 	 	 	11540	 	 	$	166,389	 
	9054
	 	$	146,738	 	 	 	10835	 	 	$	413,089	 
	9055
	 	$	143,504	 	 	 	12290	 	 	$	175,989	 
	9057
	 	$	141,181	 	 	 	12291	 	 	$	169,757	 
	8099
	 	$	156,168	 	 	 	11495	 	 	$	107,660	 
	8577
	 	$	195,063	 	 	 	11496	 	 	$	98,357	 
	8855
	 	$	128,831	 	 	 	12049	 	 	$	103,415	 
	8856
	 	$	159,855	 	 	 	12050	 	 	$	82,072	 
	9389
	 	$	76,939	 	 	 	11842	 	 	$	118,752	 
	9397
	 	$	158,311	 	 	 	11844	 	 	$	234,521	 
	9705
	 	$	93,674	 	 	 	11848	 	 	$	135,230	 
	9639
	 	$	156,016	 	 	 	11846	 	 	$	251,693	 
	9640
	 	$	186,166	 	 	 	11847	 	 	$	205,572	 
	9641
	 	$	257,731	 	 	 	13541	 	 	$	182,364	 
	9656
	 	$	137,361	 	 	 	13542	 	 	$	168,250	 
	10335
	 	$	223,326	 	 	 	12923	 	 	$	682,586	 
	10336
	 	$	185,916	 	 	 	12925	 	 	$	391,089	 






 









 






Pool
2 — Excluded Assets




	 	 	 	 	 
	File Number	 	Allocated Bid Price
	8711
	 	$	260,558	 







 











 








EXHIBIT C





     See the column entitled Allocated Bid Price in Exhibit B to the Purchase Agreement.



 









 





EXHIBIT D




Calculation of Proration Amount




     1. The following adjustments and prorations shall be apportioned between Seller and Buyer at
Closing as of 11:59 p.m. (New York City Time) on the Cut-Off Date (the “Cut-Off Time”)
(with Seller being responsible for reimbursing Buyer for all of the following costs and expenses
incurred by Buyer (or Subsidiary after the Closing) to the extent such costs and/or expenses relate
to the period of ownership or maintenance of the Subject Assets prior to the Cut-Off Time and with
Buyer being responsible for reimbursing Seller for all of the following costs and expenses incurred
by Seller to the extent such costs and/or expenses relate to the period of ownership or maintenance
of the Subject Assets after the Cut-Off Time), to the extent that, on or prior to Closing, either
Party has paid, received or is due any of the following amounts directly arising from the
ownership, operation or maintenance of the Subject Assets:




          (a) all real estate taxes or personal property taxes, water charges, sewer rents and vault
charges, if any, on the basis of the fiscal years, respectively, for which same have been assessed;




          (b) utilities, including, without limitation, telephone, steam, electricity and gas, on the
basis of the most recently issued bills therefor, subject to adjustment after the Closing when the
next bills are available, or if current meter readings are available, on the basis of such
readings;




          (c) any prepaid items, including, without limitation, insurance for each Subject Assets, fees
for licenses which are transferred to Buyer at the Closing and annual permit and inspection fees;
and




          (d) all casualty repairs, maintenance costs and repair costs and other property-level
out-of-pocket costs and expenses incurred and paid to third parties in the ordinary course
consistent with past practice for the purpose of maintaining the Subject Assets in proper
condition.



     2. Seller and Buyer shall cooperate to make the adjustments and prorations required under this
Exhibit D in accordance with the provisions of this Agreement and otherwise on a cash basis
or accrual basis, as appropriate, and in accordance with sound accounting practices and the local
customs regarding title closings as recommended by the Real Estate Board of New York.



     3. Notwithstanding anything to the contrary in this Exhibit D, to the extent that any
amounts referenced in Section 1 of this Exhibit D are included in the calculation
of the Additional Proceeds Amount, such amounts shall be disregarded for purposes of calculating
the Proration Amount.




 











 





EXHIBIT E




SERVICING AGREEMENT




between




RESIDENTIAL CAPITAL, LLC




and




MHPOOL HOLDINGS LLC




dated as of




September 30, 2008







 









 








SERVICING AGREEMENT




     THIS SERVICING AGREEMENT (this “Agreement”) is made and entered into as of September
30, 2008, among Residential Capital, LLC, a Delaware limited liability company (“ResCap”),
on behalf of itself and its controlled Affiliates (as defined in the Purchase Agreement (as defined
below)) and MHPool Holdings LLC, a Delaware limited liability company (“Buyer”), on behalf
of itself and Subsidiary.



RECITALS




     A. ResCap, DOA Holding Properties, LLC,, a Delaware limited liability company and indirect
wholly-owned subsidiary of ResCap, DOA Properties IIIB (KB Models), LLC, a Delaware limited
liability company and a subsidiary of Holdings (“Subsidiary”) and Buyer entered into that
certain Purchase Agreement, dated as of September 30, 2008 (the “Purchase Agreement”),
pursuant to which, on the Closing Date, Buyer purchased from ResCap, and ResCap sold to Buyer, the
Interests.



     B. The parties desire to enter into this Agreement on the terms and subject to the conditions
set forth herein.



     C. Capitalized terms used but not defined herein shall have the respective meanings set forth
in the Purchase Agreement.



     NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants and
agreements contained in this Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, upon the terms and subject to the conditions set
forth in this Agreement, the parties hereto, intending to be legally bound, hereby agree as
follows:



          ARTICLE IX Agreement to Provide Services.



               Section 9.1 Agreement. ResCap hereby agrees to provide, or cause its controlled
Affiliates to provide, or use its commercially reasonable efforts to cause other third parties to
provide, to Subsidiary and Buyer, the Services (as defined below) with the same degree of care,
skill, and diligence and in substantially the same manner as such services have been obtained by
Subsidiary or any of the Prior Owners with respect to the Subject Assets during the six-month
period ended September 30, 2008 (from ResCap or its controlled Affiliates or by virtue of third
party services made available by ResCap or its controlled Affiliates) (the “Required Servicing
Standard”); provided, however, that ResCap may only use third parties to
provide Services so long as such third parties (or similar third parties) provided such Services
(directly or indirectly) to Subsidiary as of the Closing Date. The term “Prior Owners”
means, collectively, DOA Properties III (Models), LLC and GMAC Model Home Finance, LLC.



               Section 9.2 Services. As used in this Agreement, the term “Services” means
all services obtained by Subsidiary or a Prior Owner with respect to the Subject Assets during the
six-month period ended September 30, 2008 (from ResCap or its controlled Affiliates or by virtue of
third party services made available by ResCap or its



 









 







controlled Affiliates) that are necessary or advisable, in the reasonable judgment of Buyer,
to own, operate and maintain the Subject Assets as owned, operated and maintained by Subsidiary or
a Prior Owner during the six-month period ended September 30, 2008, including, without limitation,
the services described in the schedules attached hereto (the “Schedules”).



               Section 9.3 Change in Services. Any material change in the manner in which the
Services are provided (a “Material Change in Service”), including any change in the
employees or third parties providing such Services, shall require Buyer’s prior written consent,
which consent shall not be unreasonably withheld, delayed or conditioned. To the fullest extent
practicable, Buyer shall receive a written request for consent from ResCap at least five business
days prior to any proposed Material Change in Service, together with reasonable documentation
describing the material terms of such proposed Material Change in Service. Notwithstanding the
foregoing, Buyer acknowledges that certain Material Changes in Service may be outside of ResCap’s
control (“Involuntary Changes”), including the resignation of any employee or the
termination by any third party service provider of its provision of services to ResCap, and that
any Involuntary Change shall not require Buyer’s prior written consent; provided, that (i) ResCap
shall confer with Buyer in determining the appropriate course of conduct in addressing any
Involuntary Changes and (ii) ResCap shall obtain Buyer’s written consent (not to be unreasonably
withheld, delayed or conditioned) prior to taking any action in response to such Involuntary Change
that, if taken, would constitute a Material Change in Service.



          ARTICLE X Payment of Services.



               Section 10.1 Service Costs. From Closing until the thirty (30) day anniversary
thereof, ResCap shall bear all costs of providing the Services. Thereafter, in consideration for
each Service, Buyer shall reimburse ResCap as set forth on Schedule I hereto.



               Section 10.2 Invoicing of Service Costs. During the applicable term of each Service,
ResCap shall invoice Buyer for the Applicable Service Cost promptly after the end of each calendar
month during such term. Buyer shall include with each invoice a reasonably detailed description of
the Services performed, the costs charged, and such other details as may be necessary to support
the invoice. All undisputed invoices shall be paid by Buyer to ResCap by wire transfer of
immediately available funds not later than sixty (60) calendar days after receipt by Buyer of
ResCap’s invoice, in accordance with the wiring instructions provided by ResCap to Buyer.



               Section 10.3 Service Cost Disputes. In the event that Buyer has a good faith dispute
with regard to any costs invoiced by ResCap hereunder, Buyer shall provide ResCap with written
notice of such dispute, together with a reasonably detailed explanation of such dispute, at or
prior to the time payment would have otherwise been due, and Buyer may withhold payment of any
disputed amounts pending resolution of the dispute. Buyer’s failure to pay amounts disputed in
accordance with the preceding



2









 







sentence shall not be grounds for a claim of breach or suspension of the provision of Services
by ResCap, its controlled Affiliates or any third party service provider.



               Section 10.4 Records and Inspection. During the term of this Agreement, ResCap shall
maintain complete and accurate records of the Services provided, costs invoiced to Buyer and
payments made thereunder. All such records shall be available for inspection by Buyer or its
representative.



          ARTICLE XI Relationship between the Parties.



               Section 11.1 Independent Contractors. ResCap, its controlled Affiliates and any third
party service providers in the performance of the Services, shall be acting as independent
contractors to Subsidiary and Buyer and its Affiliates, and not as partners, joint venturers or
agents of Buyer. Neither ResCap nor Buyer intends to create by this Agreement an employer-employee
relationship. Each of ResCap, its controlled Affiliates and any third party service providers, on
the one hand, and Subsidiary and Buyer, on the other hand, shall retain control over their
respective personnel, and their respective employees shall not be considered employees of the
other. Except as expressly provided pursuant to any signing authority granted pursuant to any
power of attorney or written consent of the board of directors of Buyer, neither ResCap, any of its
controlled Affiliates or any third party service providers, on the one hand, nor Subsidiary or
Buyer, on the other hand, shall have any right, power or authority to create any obligation,
express or implied, on behalf of the other pursuant to this Agreement.



               Section 11.2 Cooperation. ResCap shall, and shall cause its controlled Affiliates to,
and shall use its commercially reasonable efforts to cause its, employees, agents, representatives,
third party service providers and subcontractors to, cooperate fully with Buyer, its Affiliates and
their respective employees, agents and representatives to facilitate, in all respects, the
provision of Services to Buyer and its Affiliates. Buyer shall and shall use its commercially
reasonable efforts to cause its respective employees, agents, representatives and subcontractors
to, cooperate fully with ResCap, its controlled Affiliates and their respective employees, agents
and representatives to facilitate, in all respects, the provision of Services to Buyer.



               Section 11.3 Steering Committee. As promptly as practicable, ResCap and Buyer shall
form a steering committee (the “Steering Committee”), which shall consist of two
individuals, one of whom shall be nominated by ResCap and one of whom shall be nominated by Buyer.
Subject to Section 1.3, to the fullest extent practicable, ResCap shall keep the Steering Committee
reasonably informed of all proposed changes to the provision of Services and consult with the
Steering Committee prior to taking any such action that would reasonably be expected to adversely
affect the provision of Services hereunder.



3









 





          ARTICLE XII Service Standard; Compliance with Laws.



               Section 12.1 Service Standard. ResCap shall, or shall cause its controlled Affiliates
to, or shall use its commercially reasonable efforts to cause its third party service providers to,
provide the Services.



               Section 12.2 Compliance With Laws. Neither ResCap nor any of its controlled
Affiliates shall violate any applicable Laws in connection with its performance of the Services.



               Section 12.3 Third Party Service Provider. In each instance hereunder where ResCap
shall use a third party service provider to provide the Services, ResCap shall use its commercially
reasonably efforts to cause such third party service providers to provide the Services in
accordance with the Required Servicing Standard and other applicable terms hereof. Notwithstanding
the foregoing, any failure of any such third party service provider to perform any Services in
accordance with the Required Servicing Standard or other applicable terms hereof shall constitute a
breach by ResCap of the Requisite Servicing Standard or such other term, as the case may be, and
Subsidiary and Buyer shall be entitled to the remedies provided in this Agreement with respect to
such ResCap breach.



          ARTICLE XIII Service Disruptions. If ResCap, its controlled Affiliates’ or
any third party service provider’s performance of any Services is interrupted in whole or in part
for any reason for more than three (3) full Business Days, then Subsidiary and Buyer has
the right (in addition to any other remedies available under this Agreement or by Law), at ResCap’s
sole cost and expense, to make commercially reasonable arrangements to procure such interrupted
Services from an alternative source for the period and to the extent reasonably necessitated by
such interruption, or, if longer, for the duration of the contract entered into with such
alternative source (provided, that Buyer shall use commercially reasonable efforts
to limit the duration of the contract with such alternate source to the shortest period of time
that is reasonably practical).



          ARTICLE XIV Indemnification.



               Section 14.1 Buyer Indemnity. Buyer shall indemnify, defend and hold harmless ResCap,
its controlled Affiliates and its and their respective officers, directors, managers, partners,
members, employees, successors and assigns (collectively, the “ResCap Indemnified Parties”)
from and against all Losses arising out of any third party claims in connection with or arising
from the performance of the obligations of ResCap and its controlled Affiliates under this
Agreement, except to the extent such Losses arise out of (i) the gross negligence or willful
misconduct of ResCap or any of its controlled Affiliates in the performance of its obligations
under this Agreement, or (ii) any claim that any of the Services violates or infringes on any
intellectual property rights of any third party.



               Section 14.2 ResCap Indemnity. ResCap shall indemnify, defend and hold harmless
Buyer, its Affiliates (including, for the avoidance of doubt, Subsidiary) and



4









 







its and their respective officers, directors, managers, partners, members, employees,
successors and assigns (collectively, the “ Buyer Indemnified Parties”) from and against
all Losses arising out of (i) the gross negligence or willful misconduct of ResCap or any of its
controlled Affiliates in the performance of its obligations under this Agreement, or (ii) any claim
that any of the Services violates or infringes on any intellectual property rights of any third
party.



               Section 14.3 Procedure. The indemnified party shall promptly notify the indemnifying
party of any action for which an indemnified party intends to claim indemnification hereunder
(provided, however, that the failure to so notify the indemnifying party will not
relieve the indemnifying party from its indemnification obligations, except to the extent (and only
to the extent) that the indemnifying party is prejudiced by such failure). The indemnified party
agrees that that the indemnifying party will have the right to assume and control the defense or
settlement of such action, with counsel chosen by the indemnifying party and reasonably acceptable
to the indemnified party; provided, however, that (i) if the indemnifying party
assumes the defense of any action, it shall have conclusively established its obligation to
indemnify the indemnified party with respect to such action and (ii) the indemnifying party shall
not enter into any settlement or compromise of any such claim in the event such settlement or
compromise imposes any liability or obligation on the indemnified party without the indemnified
party’s prior written consent (which consent shall not be unreasonably withheld, conditioned or
delayed). The indemnified party agrees to cooperate in all reasonable respects with the
indemnifying party and its legal representatives in the investigation and defense of any action
covered by indemnification hereunder.



               Section 14.4 Limitation of Liability. NEITHER RESCAP NOR BUYER SHALL BE REQUIRED TO
INDEMNIFY THE OTHER OR THE OTHER’S CONTROLLED AFFILIATES FOR ANY EXEMPLARY, PUNITIVE, TREBLE,
SPECIAL, INDIRECT, CONSEQUENTIAL, REMOTE OR SPECULATIVE DAMAGES, LOST PROFITS OR INTERNAL COSTS;
PROVIDED HOWEVER, THAT, IF ANY INDEMNIFIED PARTY IS HELD LIABLE PURSUANT TO A
THIRD-PARTY CLAIM FOR ANY OF SUCH DAMAGES AND THE INDEMNIFYING PARTY IS OBLIGATED TO INDEMNIFY SUCH
INDEMNIFIED PARTY UNDER SECTION 6.1 OR SECTION 6.2 OF THIS AGREEMENT, THEN THE
INDEMNIFYING PARTY SHALL BE LIABLE FOR AND OBLIGATED TO REIMBURSE THE INDEMNIFIED PARTY FOR SUCH
DAMAGES.



          ARTICLE XV Term and Termination.



               Section 15.1 Term. This Agreement shall be effective from and after the Closing Date
and continue until the earlier of (i) the date on which all Services have been terminated in
accordance with the terms hereof and (ii) the dissolution of Buyer. This Agreement shall terminate
automatically (without further action by any of the parties hereto) at the end of the term set
forth in the preceding sentence. ResCap shall provide, or cause to be provided to, Buyer and
Subsidiary each Service until the earlier to occur of (i) the date on which Buyer notifies ResCap
in writing to terminate such Service pursuant to Section 7.2 hereof and (ii) the dissolution of
Buyer.



5









 





               Section 15.2 Termination of Services. Buyer may terminate its right to receive any
particular Service for any or no reason by providing ResCap not less than thirty (30) days’ prior
written notice setting forth the termination date for such Service.



               Section 15.3 Obligations on Termination. Upon any termination of this Agreement or
any Service, (i) ResCap shall cooperate, and cause its controlled Affiliates to cooperate, and
shall use its commercially reasonably efforts to cause its third party service providers to
cooperate, with all reasonable requests by Buyer in connection with the transition of such
Services, including the transfer and retention of records and data pertaining to the Services or
the Subsidiary to Buyer or its designees (in a mutually agreed industry standard electronic
format), (ii) ResCap shall return to Buyer or, to the extent permitted by applicable Law, destroy,
at Buyer’s option, all Confidential Information (including data) relating to the Subsidiary or the
Services that is in ResCap’s, any of its controlled Affiliates’ or any third party service
provider’s possession or control; (iii) no party hereto shall be relieved of any liability for any
breach or nonfulfillment of any of its obligations hereunder with respect to such Service prior to
termination of such Service; and (iv) Section 2 (as to any unpaid amounts), Sections 6, 8 and 9 and
this Section 7 shall survive any termination of this Agreement or of any Service.



          ARTICLE XVI Confidentiality.



               Section 16.1 Confidential Information. As used in this Agreement, “Confidential
Information” means any and all non-public information, in any form, furnished or made available
directly or indirectly by one party hereto or any of its Affiliates (the “Disclosing
Party”) to the other hereto or any of its Affiliates or third party service providers (the
“Receiving Party”) pursuant to this Agreement, and in the case of Buyer as the Disclosing
Party the term Confidential Information shall also include any non-public information concerning
Buyer, any of its Affiliates (including, without limitation, Subsidiary) or any of the Subject
Assets.



               Section 16.2 Obligations of Confidentiality. The Receiving Party shall protect the
Confidential Information of the Disclosing Party by using the same degree of care to prevent the
unauthorized use, dissemination, or publication of such Confidential Information as the Receiving
Party uses to protect its own Confidential Information of a similar nature, but in no event shall
the Receiving Party use less than a reasonable standard of care in its treatment of such
Confidential Information. The Receiving Party shall use the Confidential Information solely for
the purposes contemplated by this Agreement, and shall limit its disclosure of such Confidential
Information to those employees, other personnel and third party service providers who have a need
to know such Confidential Information for such purposes and who are informed of the confidential
nature of such Confidential Information and directed to use, hold and protect such Confidential
Information in accordance with this Agreement. The Receiving Party shall be responsible for any
breach of this Section 8.2 by any Person to whom it discloses or provides access to
Confidential Information.



               Section 16.3 Exclusions.



6









 






          (i) This Agreement imposes no obligation upon the Receiving Party with respect to
Confidential Information which (i) is or becomes a matter of public knowledge without
violation of this Agreement by the Receiving Party or any other Person to whom the Receiving
Party disclosed or provided access to the Confidential Information of the other party or of
its Affiliates; (ii) is received on a non-confidential basis by the Receiving Party from a
third party that, to the knowledge of the Receiving Party, is rightfully in possession of,
and with a right to make an unrestricted disclosure of, such information; or (iii) is
independently developed by the Receiving Party without the use of Confidential Information
disclosed by the Disclosing Party.




          (ii) If the Receiving Party is required (by applicable law, rule or regulation or a
subpoena, court order, similar judicial process, regulatory agency, Governmental Entity,
self-regulatory organization or stock exchange rule) to disclose any Confidential
Information, the Receiving Party will, to the extent consistent with legal and regulatory
requirements: (i) promptly notify the Disclosing Party of the existence, terms and
circumstances surrounding such requirement, (ii) reasonably consult with the Disclosing
Party on the advisability of taking legally available steps to resist or narrow such
requirement and (iii) if disclosure of such information is required, to furnish only that
portion of the Confidential Information which the Receiving Party is required to disclose
and to reasonably cooperate with the Disclosing Party, at the Disclosing Party’s sole cost
and expense, to obtain an appropriate protective order or other reliable assurance that
confidential treatment will be accorded the Confidential Information.



               Section 16.4 Ownership of Confidential Information. Neither the Receiving Party nor
any of its controlled Affiliates or third party service providers shall obtain any rights with
respect to the Confidential Information of the Disclosing Party, and in all cases the Disclosing
Party shall retain all right, title and interest in its Confidential Information.



               Section 16.5 Return of Confidential Information. Upon termination of this Agreement,
or at any time upon request by the Disclosing Party, the Receiving Party shall return to the
Disclosing Party or, to the extent permitted by applicable Law, destroy, at the Disclosing Party’s
option, all Confidential Information of the Disclosing Party that is in the possession or under the
control of the Receiving Party or any of its controlled Affiliates or third party service providers
(including all copies thereof).



          ARTICLE XVII General Provisions.



               Section 17.1 Miscellaneous Provisions. Sections 8.1, 8.2, 8.5, 8.8, 8.9, 8.10, 8.11
and 8.12 of the Purchase Agreement shall apply to this Agreement mutatis mutandis as if set forth
herein.



               Section 17.2 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective



7









 







successors, legal representatives and assigns. No party hereto may assign any of its rights
or delegate any of its obligations under this Agreement, by operation of Law or otherwise, without
the prior written consent of the other party hereto; provided, however, that Buyer
may assign or delegate, in whole or in part, its rights and obligations under this Agreement to any
one or more of its Affiliates so long as Buyer remains responsible for the performance of its
obligations hereunder. Nothing in this Agreement, express or implied, is intended to confer upon
any Person other than ResCap, Buyer and each of its controlled Affiliates, successors, legal
representatives and permitted assigns, any rights or remedies under or by reason of this Agreement;
provided, that, the Buyer Indemnified Parties (solely with respect to their
indemnification rights pursuant to this Agreement) and the ResCap Indemnified Parties (solely with
respect to their indemnification rights pursuant to this Agreement) shall be third party
beneficiaries of such Sections of this Agreement, entitled to enforce those specified provisions
hereof.



               Section 17.3 Interpretation. The words “hereof,” “herein” and “hereunder” and words
of like import used in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. Terms defined in the singular in this Agreement shall also
include the plural and vice versa. The captions and headings herein are included for convenience
of reference only and shall be ignored in the construction or interpretation hereof. References to
Articles, Sections, and Schedules are to Articles, Sections, and Schedules of this Agreement unless
otherwise specified. Whenever the words “include,” “includes” or “including” are used in this
Agreement, they shall be deemed to be followed by the words “without limitation,” whether or not
they are in fact followed by those words or words of like import. The phrases “the date of this
Agreement,” “the date hereof” and phrases of similar import, unless the context otherwise requires,
shall be deemed to refer to the date set forth in the Preamble to this Agreement. The parties
hereto have participated jointly in the negotiation and drafting of this Agreement. If any
ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if
drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring
or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.



               Section 17.4 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.



               Section 17.5 Disputes. Any controversy or dispute arising out of this Agreement
(each, a “Dispute”), including, without limitation, any dispute under Section 2.3
hereof, shall be submitted to the Steering Committee. If the Steering Committee fails to reach
unanimous agreement on the resolution of such Dispute within twenty (20) Business Days, then either
ResCap or Buyer may seek remedies under Delaware law, and in connection therewith, such Dispute
shall be brought in the Chancery Court of the State of Delaware, any other state court of the State
of Delaware or the United States District Court for the District of Delaware (the “Chosen
Courts”), and solely in connection with claims arising under this Agreement or the transactions
that are the subject of this Agreement, each Party: (i) irrevocably submits to the exclusive



8









 







jurisdiction of the Chosen Courts, (ii) waives any objection to laying venue in any such
action or proceeding in the Chosen Courts, (iii) waives any objection that the Chosen Courts are an
inconvenient forum or do not have jurisdiction over any Party hereto and (iv) agrees that service
of process upon such Party in any such action or proceeding shall be effective if notice is given
in accordance with Section 8.1 of the Purchase Agreement. Each Party hereto irrevocably
waives any and all right to trial by jury in any legal proceeding arising out of or relating to
this Agreement or the transactions contemplated hereby.



               Section 17.6 Entire Agreement. This Agreement (including the Schedules hereto), the
Purchase Agreement and the other Transaction Documents contain the entire agreement between the
parties hereto with respect to the subject matter hereof and thereof and supersedes all prior
agreements and understandings, oral or written, with respect to such matters.



               Section 17.7 Force Majeure. Subject to Section 5 of this Agreement, neither
party shall be responsible to the other for any delay in or failure of performance of its
obligations under this Agreement (other than payment obligations under Section 2) to the
extent such delay or failure is attributable to any cause beyond its reasonable control, including
any act of God, fire, earthquake, failures of its computers or electronic transmissions (but solely
to the extent outside its reasonable control), strike or other labor disputes, war, embargo or
other governmental act, or riot; provided, however, that the party affected thereby
gives the other party prompt written notice of the occurrence of any event that is likely to cause
any delay or failure setting forth a reasonable estimate of the length of any delay and any
expectation that it shall be unable to resume performance; and provided, further,
that said affected party shall use its commercially reasonable efforts to expeditiously overcome
the effects of that event and resume performance with the least possible delay. For the avoidance
of doubt, Buyer shall not be obligated to pay ResCap or any of its controlled Affiliates for
Services during the period of time when ResCap is not providing, or causing to be provided, such
Services.



               Section 17.8 Conflicts. In case of conflict between the terms and conditions of this
Agreement and the Purchase Agreement, the Purchase Agreement shall control.



               Section 17.9 Schedules. All Schedules annexed hereto or referred to herein are hereby
incorporated in and made a part of this Agreement as if set forth in full herein.



[SIGNATURE PAGE FOLLOWS THIS PAGE]




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EXHIBIT F




     IN WITNESS WHEREOF, the parties hereto have executed or caused this Agreement to be executed
as of the date first written above.



	 	 	 	 	 	 	 
	 	 	RESIDENTIAL CAPITAL, LLC,	 	 
	 	 	on behalf of itself and its controlled Affiliates	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	MHPOOL HOLDINGS LLC,	 	 
	 	 	on behalf of itself and Subsidiary	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






 









 






Schedule I




SERVICES TO BE PROVIDED





	•	 	Employees, including support of asset managers from ResCap’s Special Assets Group and
internal ResCap legal counsel;






	•	 	Third party professional service providers, including legal;






	•	 	Cash management services;






	•	 	IT services;






	•	 	Accounting services;






	•	 	Insurance;






	•	 	Use of the Richmond, Virginia headquarters facility, the Dallas, Texas servicing facility
and/or such other facilities as determined by ResCap; provided, however, that
if there is a material reduction in the performance of Services at the Richmond, Virginia or
Dallas, Texas facility, taken as a whole, then ResCap’s designation of replacement facilities
to perform such Services shall require Buyer’s prior written consent, which shall not be
unreasonably withheld, delayed or conditioned; and






	•	 	Such other Services as may be necessary or incidental to own, operate and maintain the
Subject Assets for the benefit of Buyer consistent with the ordinary course of business
consistent with past practice relating to the Subject Assets.





PRICING





	•	 	$300 per month per REO model; plus






	•	 	For all models under lease as of the end of the applicable calendar month, 30 basis points
per annum on value allocated to such models as per Exhibit C of the Purchase Agreement; plus






	•	 	Reimbursement for direct, out-of-pocket costs and expenses incurred during the applicable
calendar month in connection with providing for Services, including, without limitation,
taxes, utilities, insurance premiums, fees and expenses of outside counsel, accountants, and
other outside professionals and advisors, and all costs and fees incurred in pursuing any
insurance claims (including costs of professional adjusters).




11









 











EXHIBIT F




LIMITED ASSIGNMENT AND ASSUMPTION AGREEMENT




     This Limited Assignment and Assumption Agreement (this “Assignment”) is made and executed as
of the 30th day of September, 2008, by and among KBOne, LLC, a Delaware limited liability company
(“KBOne”), DOA Holdings NoteCo, LLC, a Delaware limited liability company (“Holdings”), Residential
Funding Company, LLC, a Delaware limited liability company (“RFC”), and MHPool Holdings LLC, a
Delaware limited liability company (“Buyer”).



RECITALS:




     A. KBOne entered into a certain Second Amended and Restated Master Sale and Rental Agreement,
dated June 5, 2006 (the “MSRA”), with KB Home, a Delaware corporation (“KB Home”), and certain
other affiliates of KB Home identified in the MSRA (KB Home and such other affiliates being
sometimes hereinafter collectively referred to as the “Builder”).



     B. Pursuant to the terms of the MSRA, KBOne agreed to purchase certain single family
residential homes from Builder, and to lease such homes back to Builder for use as model homes in
residential developments in which Builder develops and constructs additional for-sale homes.



     C. In connection with the proposed purchase of homes pursuant to the MSRA, KBOne made and
delivered to KB Home a certain Amended and Restated Note, dated June 5, 2006 (the “KB Home Note”),
evidencing KBOne’s obligation to pay those portions of the purchase price of homes purchased by
KBOne pursuant to the MSRA that were not paid in cash by KBOne to KB Home upon the closing of the
purchase of such homes by KBOne.



     D. In connection with the KB Home Note, Residential Funding Corporation, the predecessor of
RFC, gave a performance and payment guaranty (the “Guaranty”) to KB Home, effective as of June 5,
2006, in connection with KBOne’s obligations under the MSRA and the Note.



     E. Effective as of June 9, 2008, all of the equity of KBOne was transferred indirectly to CMH
Holdings LLC (the “CMH Transfer”) pursuant to that Purchase Agreement, dated as of June 6, 2008,
among Residential Capital, LLC, GMAC Model Home Finance I, LLC and CMH Holdings LLC (the “June
Purchase Agreement”) and, in connection therewith, KBOne conveyed to DOA Properties IIIB (KB
Models), LLC, a Delaware limited liability company and a



12









 







subsidiary of Holdings (“DOA IIIB”), those certain model homes and real property on which they
are constructed described on attached Schedule 1 (the “DOA Models”), and KBOne retained
title to those certain model homes and real property on which they are constructed described on
attached Schedule 2 (the “CMH Models”).



     F. In connection with the CMH Transfer, (i) KBOne desires to assign to Holdings certain rights
and obligations under the MSRA and the KB Home Note, effective as of June 9, 2008, to the extent
set forth herein, and Holdings desires to assume the same, and KBOne desires to retain certain
rights and obligations under the MSRA and the KB Home Note, to the extent set forth herein, and
(ii) RFC desires to assign to KBOne, effective as of June 9, 2008, certain rights
and obligations under the Guaranty, to the extent set forth herein, and KBOne desires to assume the
same, and RFC desires to retain certain rights and obligations under the Guaranty, to the extent
set forth herein.



     G. Effective as of the date hereof, Holdings is hereby assigning to Buyer (the “DOA Transfer”)
pursuant to that Purchase Agreement, dated as of September 30, 2008, among Residential Capital, LLC
(“ResCap”), DOA Holding Properties, LLC, DOA IIIB and Buyer (the “September Purchase Agreement”)
all of its right, title and interest in and to those DOA Models described on attached Schedule
3 (the “Pool 1 Models”) by way of a transfer of all of the outstanding equity of DOA IIIB, and
DOA Holding Properties, LLC, and ResCap are retaining beneficial ownership of those certain DOA
Models described on attached Schedule 4 (the “Excluded Models”).



     H. In connection with the DOA Transfer, Holdings and RFC desire to assign to Buyer certain
rights and obligations under the MSRA, the KB Home Note and the Guaranty, effective as of the date
hereof, to the extent set forth herein, and Holdings and RFC desire to retain certain rights and
obligations under the MSRA, the KB Home Note and the Guaranty, to the extent set forth herein.



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, each of KBOne, Holdings, RFC and Buyer hereby agree as follows:



     Section 1. Assignment and Assumption of Obligations.



          (a) Effective as of June 9, 2008, (i) KBOne hereby assigns and conveys to Holdings certain
rights and obligations in, to and under the MSRA and the KB Home Note, but only to the extent set
forth opposite Holdings’ name on Exhibit A hereto, and Holdings hereby



13









 







assumes all of such rights and obligations, and KBOne hereby retains certain rights and
obligations under the MSRA and the KB Home Note, but only to the extent set forth opposite KBOne’s
name on Exhibit A hereto, and (ii) RFC hereby assigns and conveys to KBOne certain rights and
obligations under the Guaranty, but only to the extent set forth opposite KBOne’s name on Exhibit A
hereto, and KBOne hereby assumes all of such rights and obligations, and RFC hereby retains all
other rights and obligations under the Guaranty, as set forth on Exhibit A.



          (b) Effective as of the date hereof, (i) Holdings hereby assigns and conveys to Buyer certain
rights and obligations in, to and under the MSRA and the KB Home Note, but only to the extent set
forth opposite Buyer’s name on Exhibit B hereto, and Buyer hereby assumes all of such rights and
obligations, and Holdings hereby retains certain rights and obligations under the MSRA and the KB
Home Note, but only to the extent set forth opposite Buyer’s name on Exhibit B hereto, and (ii) RFC
hereby assigns and conveys to Buyer certain rights and obligations under the Guaranty, but only to
the extent set forth opposite Buyer’s name on Exhibit B hereto, and Buyer hereby assumes all of
such rights and obligations, and RFC hereby retains all other rights and obligations under the
Guaranty, as set forth on Exhibit B.



          Section 2. Other Covenants of the Parties. Each of KBOne, Holdings, RFC and Buyer
hereby agrees and covenants that it shall not agree to any modification or amendment of, or waiver
any of its rights under, the Note, the MSRA or the guaranty, without the prior written consent of
each of the other parties hereto.



          Section 3. Further Assurances. KBOne, Holdings, RFC and Buyer agree to cooperate
with each other and to execute such other documents and take such other actions as may be
reasonably required to give effect to the intent and agreements of the parties as set forth in this
Assignment.



[SIGNATURE PAGE FOLLOWS]




14









 








     IN WITNESS WHEREOF, the undersigned have executed and delivered this Limited Assignment and
Assumption Agreement as of the date set forth above.



	 	 	 	 	 	 	 	 	 
	 	 	KBOne, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Its	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	DOA Holdings NoteCo, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Its	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Residential Funding Company, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Its	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	MHPOOL HOLDINGS LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 





15









 





EXHIBIT G




MUTUAL RELEASE


Dated as of September 30, 2008




     Pursuant to Sections 2.6(b) and 2.7(c) of that certain Purchase Agreement, dated as of
September 30, 2008 (the “Purchase Agreement”), by and among Residential Capital, LLC, a
Delaware limited liability company (“ResCap”), DOA Holding Properties, LLC, a Delaware
limited liability company and an indirect wholly-owned subsidiary of ResCap (“Seller”), DOA
Properties IIIB (KB Models), LLC, a Delaware limited liability company and direct wholly-owned
subsidiary of Seller (“Subsidiary”) and MHPool Holdings LLC, a Delaware limited liability company
(“Buyer”), this Mutual Release (the “Release”), dated as of the Closing Date, is being
entered into by ResCap, on behalf of itself and its controlled Affiliates (other than Subsidiary)
on the one hand, and Subsidiary, on the other hand. Except as otherwise defined herein, terms used
herein with initial capital letters are so used with the meanings ascribed thereto in the Purchase
Agreement.



     Effective as of the Closing, each of ResCap, on behalf of itself and its controlled Affiliates
(other than Subsidiary), on the one hand, and Subsidiary, on the other hand, hereby irrevocably and
unconditionally releases and forever discharges one another and each of their respective past and
present parents, subsidiaries and Affiliates, together with each of their respective officers,
directors, members, managers, employees, agents, representatives and attorneys, predecessors,
successors and assigns from any and all Liabilities to one another, including all Liabilities
arising out of or in connection with the assets, properties, businesses or operations of the
Subsidiary, the Interests and/or the Subject Assets, prior to, or as of, the Closing or otherwise
from events, actions, omissions, failures to act or circumstances occurring or existing prior to,
or as of, the Closing; provided, however, that, notwithstanding anything to the
contrary herein, nothing herein shall release or discharge or be construed or otherwise deemed to
release or discharge any rights, Liabilities, claims, agreements, arrangements or undertakings of
any Person arising pursuant to any of the Transaction Documents (including, without limitation, the
indemnification obligations of ResCap pursuant to Article VII of the Purchase Agreement) or any
certificate or document required to be executed in connection with the execution of the Purchase
Agreement or the consummation of the transactions contemplated thereby or otherwise expressly
contemplated by any of the Transaction Documents to continue after the Closing.



     Each of ResCap, on behalf of itself and its controlled Affiliates (other than Subsidiary) and
Subsidiary hereby irrevocably covenants to, and shall cause its respective controlled Affiliates
to, refrain from, directly or indirectly, asserting or commencing, instituting or causing to be
commenced, any claim for Liabilities of any nature whatsoever based upon any matter covered by this
Release (other than Liabilities excluded pursuant to the proviso set forth in the paragraph above).



     Each of ResCap and Subsidiary hereby expressly waives, and shall cause its respective
controlled Affiliates to waive any rights it may have under any statute, law, rule or regulation
applicable to the Liabilities released hereby. Each of ResCap and Subsidiary, on behalf of itself
and its respective controlled Affiliates, assumes the risk of the subsequent discovery or



 









 




understanding of any matter, fact or law which, if known or understood, would in any respect
have affected the releases and waivers made herein. In furtherance of the foregoing:




	 	 	 	EACH PARTY HERETO ACKNOWLEDGES THAT IT IS FAMILIAR WITH THE PROVISIONS OF CALIFORNIA
CIVIL CODE SECTION 1542, WHICH PROVIDES AS FOLLOWS:
	 
	 	 	 	“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN
BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”





[Signature Page Follows]




 









 








     IN WITNESS WHEREOF, each of the undersigned has duly executed this Release as of the date
written above.



	 	 	 
	ResCap (on behalf of itself and its controlled Affiliates, other than Subsidiary):


RESIDENTIAL CAPITAL, LLC


	By:
	 	 
	 

	 	 
	 

	 	Name:
	 

	 	Title:
	 
	 	 
	Subsidiary:

DOA PROPERTIES IIIB (KB MODELS), LLC
	 
	 	 
	By:
	 	 
	 

	 	 
	 

	 	Name:
	 

	 	Title: