Date: March 25, 2008
Address:
Re: Offer to Acquire Whole Loans of Approximately $xxxxx
Dear Ms. Vanessa Resnick
This letter (the “Letter Agreement”) constitutes an offer to purchase the interests
of DLJ Mortgage Capital, Inc. (the “Seller”) in the residential mortgage loans (the
“Loans”) described on the schedule of loans attached hereto as Exhibit “A” by
Residential Capital Mortgage Income Fund, A California Limited Liability Company
(the “Buyer”), on a servicing released basis. Upon the acceptance of the terms and
conditions set forth herein by the Seller, this Letter Agreement will constitute an
agreement by the Seller to sell and by the Buyer to buy the Loans in accordance with the
terms set forth below.
The terms and conditions of the Letter Agreement are as follows:
1. The purchase price for the Loans shall be xx% of the unpaid principal balance
as shown on Exhibit “A” and be based on the unpaid principal balance of the Loans as of
April 16, 2008 (the “Cutoff Date”), plus accrued but unpaid interest through the day
prior to the closing date on the Loans that are not more than thirty (30) days delinquent.
The closing date shall be April 17, 2008 or such other date which is mutually acceptable
to Buyer and Seller (“Closing Date”). Unless otherwise indicated on Exhibit “A”, the
purchase price is based on the assumption the Loans are current loans. In the event any
of the Loans are not current, the purchase price may be reduced. All payments received
after the Cutoff Date are for the account of the Buyer and if collected prior to the Closing
Date will reduce the purchase price, and if collected after the Closing Date will promptly
be remitted to the Buyer.
2. The purchase price shall be paid in full on the Closing Date. Upon the
servicing transfer date, Seller shall transfer the net escrow balances to Buyer.
3. Buyer’s and Seller’s obligations to consummate the transaction contemplated
herein shall be subject to, and conditioned upon, the execution of a mutually acceptable
mortgage loan purchase agreement.
4. [Reserved]
5. Seller agrees during the period commencing on the date hereof and
continuing through the Closing Date, to refrain from marketing the Loans or providing
information concerning the Loans to any potential purchasers and to negotiate in good
faith a mortgage loan sale agreement with Buyer. Seller further agrees that upon signing
of this Letter Agreement by both Buyer and Seller, Seller shall not solicit refinancing for
any of the Loans.
6. Seller agrees to pay the cost of preparing assignments of mortgages and/or
notes, as required. On the Closing Date, Seller shall provide Buyer with those portions of
the Mortgage File as required by the mortgage loan purchase agreement.
7. The Seller will make certain representations and warranties to Buyer as
further set forth in the mortgage loan purchase agreement.
8. Buyer shall have the right to reject and/or reprice any Loans for the
following reasons: (i) if the related borrower is in bankruptcy, (ii) the related first lien
loan on the borrower’s property is delinquent, (iii) if the second lien is not enforceable
and (iv) if the data provided by the Seller with respect to the valuation of the related
mortgaged property or the borrower’s credit score deviate by more then 25% from the
data provided by the Seller. Upon receipt of notice from Buyer that a specific Loan has
been repriced, Seller shall have the option of: (a) accepting the new price for the Loan, or
(b) removing the Loan from the portfolio.
9. Except as required by law or court order, the Seller shall keep confidential
and shall not divulge to any party, without the Buyer’s prior written consent, the terms of
this Letter Agreement and the proposed transaction contemplated hereunder; except that
either party may disclose such terms to its employees, officers, directors, shareholders,
financial advisors, consultants, partners, affiliates, lenders and attorneys who need to
know such terms for purposes of evaluating the proposed transaction.
10. In the event the either party hereto breaches any covenant, representation
or warranty contained in the provisions of this Letter Agreement or otherwise fails or
refuses to consummate the sale of any or all of the Loans at the price set forth in Section
1 hereof as adjusted by the terms of this Letter Agreement, the breaching party shall pay
to the non-breaching party immediately upon written demand thereof, all actual and
documented costs, damages, losses and liabilities arising out of the breach of any
covenant, representation or warranty contained in the provisions of this Letter Agreement
or arising out of such party’s failure or refusal to consummate the sale of any or all of the
Loans, including without limitation any and all hedging costs and losses, and any and all
due diligence costs.
11. This Letter Agreement shall be construed and enforced in all respects in
accordance with the laws of the State of New York. Any court proceeding relating to this
Letter Agreement or its subject matter shall be brought in federal or state court situated in
the County of New York, State of New York. The parties hereby waive any objection
they may have in any such action based on the lack of personal jurisdiction, improper
venue, or inconvenient forum.
12. Facsimile or PDF signatures on counterparts of this Letter Agreement are
hereby authorized and shall be acknowledged as if such facsimile or PDF signatures were
an original execution, and this Letter Agreement shall be deemed as executed when an
executed facsimile or PDF hereof is transmitted by a party to any other party.
Unless previously accepted in writing by the Seller, this offer will expire at
5:00p.m. (EST) on Wednesday, March 25, 2007.
Seller may accept this offer by executing and returning to the undersigned a faxed
copy of this Letter Agreement, acknowledging acceptance of the terms hereof.
Agreed to and accepted this _____ day of
_______________, 2008
RESIDENTIAL CAPITAL MORTGAGE INCOME FUND, LLC,
a California limited liability company
________________________________
Martin I. Goodman
President
DLJ MORTGAGE CAPITAL, INC.
By:
Name:
Title: