Legal MCAP Binder

LEGAL MCAP BINDER AGREEMENT

This MCAP Binder Agreement (the "Binder") is made and entered into as of Effective Date: by and between Lender Name: with principal address: ("Lender"), and Investor Name: with principal address: ("Investor").

RECITALS

WHEREAS, Lender originates certain mortgage loans and requires temporary assurance of investor acceptance, underwriting delineation and allocation of credit risk in order to facilitate loan delivery and sale; and

WHEREAS, Investor has agreed to provide consideration to Lender in return for limited binding commitments described herein for loans identified in Schedule A to be attached to this Binder; and

WHEREAS, the parties desire to set forth the terms, conditions and procedures under which Investor will reserve purchase or credit support commitments for specified loans pending completion of required conditions precedent.

NOW THEREFORE, in consideration of the mutual covenants set forth below and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows:

1. DEFINITIONS

For purposes of this Binder, the following terms shall have the meanings set forth below. "Covered Loans" means the mortgage loans identified in Schedule A. "Binder Limit" means the aggregate principal amount of Covered Loans subject to Investor's commitments as specified in Section 3. "Conditions Precedent" means the requirements set forth in Section 5 that must be satisfied prior to any binding purchase or funding obligation by Investor.

2. SCOPE AND PURPOSE

2.1 Binder Purpose. Investor shall, subject to the terms and limitations of this Binder, reserve and hold capacity for the provisional acceptance, underwriting review and potential purchase of Covered Loans during the Binder Term. This Binder creates only a provisional obligation to reserve capacity and does not constitute a binding purchase and sale agreement for any specific loan until Investor issues a written Commitment Notice in accordance with Section 6.

2.2 Non-Delegable Duties. Investor's obligations under this Binder are limited to those expressly set forth herein. No implied duties, including but not limited to duties to underwrite beyond the express underwriting criteria, shall be read into this Binder.

3. BINDER LIMIT, COVERAGE AND TERM

3.1 Binder Limit. The initial Binder Limit is representing the aggregate principal balance of Covered Loans that Investor will reserve capacity for under this Binder.

3.2 Term. This Binder shall commence on the Effective Date and shall expire on Termination Date: unless earlier terminated in accordance with Section 10.

4. CONDITIONS PRECEDENT

4.1 Conditions. Investor's obligation to issue any Commitment Notice or to proceed with purchase of any Covered Loan is conditioned upon: (a) completion of Investor's customary due diligence and underwriting review to Investor's sole satisfaction; (b) receipt of accurate loan documentation and representations and warranties by Lender; and (c) absence of any material adverse change in the credit or collateral supporting the Covered Loan.

4.2 Material Adverse Change. If Investor determines in good faith that a material adverse change in the collateral, borrower credit, title or insurable risk exists, Investor may, in its sole discretion, refuse to issue a Commitment Notice with respect to the affected loan or may condition any Commitment Notice on remediation acceptable to Investor.

5. FEES, RETENTION AND PAYMENT

5.1 Fee for Binder Capacity. Lender shall pay Investor a binder fee in the amount of payable within days of the Effective Date. Unless otherwise agreed in writing, fees are earned upon payment and are non-refundable except as expressly set forth herein.

5.2 Setoff. Investor may set off amounts due to Investor from Lender against fees or other amounts otherwise due to Lender under this Binder or related agreements.

6. COMMITMENT NOTICE; PURCHASE

6.1 Commitment Notice. If, following satisfaction of the Conditions Precedent, Investor elects to accept a Covered Loan, Investor will deliver a written Commitment Notice specifying the loan to be purchased, the purchase terms and any additional conditions. Upon delivery of a Commitment Notice, and subject to any conditions specified therein, the parties shall execute a purchase agreement in substantially the form attached to the Commitment Notice.

6.2 No Obligation Prior to Notice. Except as expressly set forth in this Binder, Investor shall have no obligation to purchase any loan prior to issuing a Commitment Notice.

7. REPRESENTATIONS, WARRANTIES AND COVENANTS

7.1 Lender Representations. Lender represents and warrants that: (a) it has full power and authority to enter into this Binder and to deliver Covered Loans for consideration; (b) all information provided to Investor in connection with each Covered Loan is true, correct and complete in all material respects; and (c) it will not take any action that would materially impair Investor's rights with respect to any Covered Loan identified for purchase.

7.2 Investor Representations. Investor represents that it is duly organized and has the authority to enter into this Binder and perform its obligations hereunder. Investor further represents that it will act in accordance with the terms of its Commitment Notices and applicable law.

8. INDEMNITY

8.1 Indemnification by Lender. Lender shall indemnify, defend and hold harmless Investor and its affiliates, officers, directors and agents from and against any and all losses, liabilities, claims, damages, costs and expenses (including reasonable attorneys' fees) arising out of: (a) any material breach of Lender's representations, warranties or covenants in this Binder; or (b) any misstatement or omission in the loan documentation provided by Lender in connection with a Covered Loan.

8.2 Survival. The indemnities set forth in this Section 8 shall survive expiration or termination of this Binder with respect to matters arising prior to such expiration or termination.

9. NOTICES

All notices under this Binder must be in writing and delivered to the addresses below by certified mail, courier, or personal delivery and shall be deemed given upon receipt.

10. TERMINATION; SURVIVAL

10.1 Termination. This Binder may be terminated by either party upon written notice to the other party if the other party materially breaches this Binder and such breach is not cured within thirty (30) days after written notice specifying the breach. Termination shall not relieve a party of obligations accrued prior to termination.

10.2 Survival. Sections concerning Fees, Representations and Warranties, Indemnity, Governing Law, Notices and other provisions which by their nature should survive, shall survive termination or expiration of this Binder.

11. AMENDMENT; WAIVER

No amendment or waiver of any provision of this Binder shall be effective unless made in a written instrument signed by both parties. No failure or delay by either party in exercising any right shall operate as a waiver of that right.

12. GOVERNING LAW; VENUE

This Binder shall be governed by and construed in accordance with the laws of the State of without regard to its conflict of laws principles. The parties submit to the exclusive jurisdiction of the state and federal courts located in that State for any action arising out of or relating to this Binder.

13. ENTIRE AGREEMENT; SEVERABILITY; COUNTERPARTS

13.1 Entire Agreement. This Binder, together with any Commitment Notices and schedules executed hereunder, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, whether written or oral, relating to such subject matter.

13.2 Severability. If any provision of this Binder is held to be invalid or unenforceable, the remainder of this Binder shall continue in full force and effect to the maximum extent permitted by law.

13.3 Counterparts. This Binder may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one instrument. Signatures transmitted by facsimile or electronic image shall be deemed originals for all purposes.

14. SCHEDULES AND ATTACHMENTS

Schedule A - Covered Loans (specify loan identifiers, borrower name, principal amount, property address and any special underwriting conditions).

15. CERTIFICATIONS

Each signatory hereto represents and warrants that he or she is duly authorized to execute and deliver this Binder on behalf of the party for which they sign and that such party has the power and authority to enter into and be bound by this Binder.

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