EXHIBIT 10.5
LOAN SERVICING AGREEMENT
THIS LOAN SERVICING AGREEMENT (this "Agreement") made as of this 1st
day of July, 2000 by and between ONE CAPITAL ADVISORS, LLC, a Georgia limited
liability company (the "Manager"), and NATIONAL LOAN SERVICES, LLC, a Missouri
limited liability company (the "Servicer").
W I T N E S S E T H:
WHEREAS, pursuant to that certain REIT Management Agreement dated July
1, 2000, by and between the Manager and the Foundation Capital Resources, Inc.,
a Georgia corporation (the "REIT"), the Manager is responsible for the
management of the REIT and Foundation Capital Partners I, LLLP, a Georgia
limited liability limited partnership (the "Down REIT"); and
WHEREAS, the REIT and the Down REIT are engaged in the business of
making mortgage loans to churches and non-profit organizations and ministries,
including purchasing church mortgage loans and mortgage bonds (individually, a
"Loan" and collectively, the "Loans"); and
WHEREAS, Servicer has expertise in servicing loans to churches and
other non-profit organizations, including such loans secured by first and second
priority security interests in real estate, which loans are typically evidenced
by promissory notes, security deeds, security agreements and other documents
relating thereto or arising therefrom (collectively, the "Loan Documents"); and
WHEREAS, Manager desires to have Servicer perform certain services for
Manager in connection with the administration and servicing of the Loans; and
WHEREAS, the Servicer is willing to provide such services to the
Manager on the terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the premises and the covenants
hereinafter contained, the Manager and the Servicer agree as follows:
ARTICLE I
EMPLOYMENT OF SERVICER
The Manager hereby employs the Servicer to furnish the collection,
administration and accounting services described below for the period and on the
terms and conditions set forth in this Agreement. The Servicer hereby accepts
such employment and agrees during such period to render, or with Manager's prior
written consent, arrange for the rendering of, such services and to assume the
obligations hereinafter set forth for the compensation provided for herein. The
Servicer shall for all purposes herein be deemed to be an independent contractor
and shall, unless otherwise expressly provided or authorized, have no authority
to act for or represent the Manager, the REIT or the Down REIT in any way or
otherwise be deemed an agent of the Manager, the REIT or the Down REIT.
ARTICLE II
ADMINISTRATION AND SERVICING OF THE LOANS
Section 2.01 Servicing of Loans. The Manager and the Servicer hereby
agree that the Servicer shall, from the date hereof, service all Loans in
accordance with the terms and conditions set forth herein. The Servicer agrees
to service and administer the Loans on behalf of the Manager in a manner
consistent with good lending practices, utilizing loan procedures to be
recommended by the Servicer, as approved and adopted by the Manager.
Section 2.02 Servicer's and Loan Debtor's Compliance with the Law. The
Servicer shall comply with, and shall use its best efforts to cause each Loan
debtor to comply with, all applicable state and federal laws, rules, and
regulations, including those requiring the giving of notices. The Servicer shall
forward copies of all such notices or claims to the Manager, if requested by the
Manager.
Section 2.03 Collection, Remittance, and Accounting. Until the
principal and interest of each Loan serviced hereunder is paid in full, the
Servicer shall:
(a) proceed diligently to collect and process all payments as
submitted by each borrower due under the terms of each Loan as it
becomes due;
(b) promptly deliver to the Manager in accordance with
procedures to be determined by Manager and Servicer, all amounts
of principal and interest collected under the Loans; and
(c) provide routine accounting functions relating to the Loans
serviced for the REIT and the Down REIT.
Section 2.04 Loan and Other Prepayments. The Servicer shall not accept
any prepayment of Loan principal serviced hereunder, except as authorized by
applicable law and regulations and provided for by the terms of the applicable
Loan Document. In the event that a prepayment is made on any Loan serviced
hereunder, the Servicer shall credit the account with the amount of principal
prepaid and collected and the maximum amount of prepayment penalty authorized
and collected under the terms of the applicable Loan instrument, all in
accordance with applicable law, rules, and regulations as from time to time
amended.
Section 2.05 Loan Debtor's Failure to Perform. In the event that any
Loan debtor fails to make a payment to the Servicer required to be made under
the terms of the applicable Loan Document, the Servicer shall notify the Manager
of same in the Servicer's monthly report. In addition, if payments due on any
Loan become more than thirty (30) days past due, the Servicer shall give prompt
notice thereof to the Manager. In the event of default in the payment of
principal, interest, or other sums owed by the debtor on any Loan, the
remittance of such payment from the Servicer to the Manager shall not be
required until collected from such debtor or its account. The Manager shall
maintain primary contact with the delinquent borrowers and the Servicer shall
take such collection actions as may be mutually agreed upon by the Servicer and
the Manager. The Manager shall reimburse the Servicer for any and all reasonable
expenses
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incurred by the Servicer in connection with any collection activities undertaken
by the Servicer on behalf of the Manager. The Manager's reimbursement
obligations shall survive the termination of this Agreement.
Section 2.06 Foreclosure or Other Action in the Event of Loan Default.
The Servicer shall, upon the request and under the direction of the Manager,
assist in the foreclosure or other acquisition of the premises securing a Loan
serviced pursuant to this Agreement. The Servicer shall also assist the Manager
in collection of non-secured Loan proceeds (if any). Upon the sale of property
on terms specified by the Manager, if payments are deferred and payable under a
loan contract, the Servicer shall service such loan until completely liquidated
upon the terms provided for the servicing of Loans pursuant to this Agreement.
The Manager shall reimburse the Servicer for its reasonable fees and
out-of-pocket expenses incurred under this Section, including reasonable
attorneys' fees for attorneys approved by the Manager.
Section 2.07 Custody of Insurance Policies. The Servicer shall hold for
the Manager's account such insurance policies and renewals submitted by Loan
debtors as required by this Agreement and shall deliver such policies to the
Manager upon request.
Section 2.08 Servicer's Furnishing of Financial Condition Statement. Upon the
Manager's request, the Servicer shall furnish a detailed statement of its
financial condition and shall give the Manager (or its authorized
representative) an opportunity at any time during normal business hours to
examine the Servicer's books and records relative to its duties and
responsibilities hereunder.
Section 2.09 Records Maintenance. The Servicer shall keep records
satisfactory to the Manager pertaining to each Loan. In addition, the Servicer
shall maintain full books of account with correct entries of all receipts and
expenditures of servicing the Loans. Such records and books of account shall be
the property of the Manager and, upon termination of this Agreement, shall be
delivered to the Manager.
Section 2.10 Other Servicer Duties. Until the principal and interest of
each Loan is paid in full, the Servicer shall perform such other customary
duties and routine accounting functions, furnish such reports, and execute such
other documents in connection with its duties as the Manager may reasonably
require.
Section 2.11 Commingling Prohibited. The Servicer shall not commingle
any funds collected by it on behalf of the Manager with its own funds. In
addition, the Servicer shall not commingle any funds collected by it on behalf
of the REIT with any funds collected by it on behalf of the Down REIT.
Section 2.12 Other Prohibitions. The Servicer shall not waive, modify,
release, or consent to postponement on the part of any Loan debtor of any term
or provision of a loan contract without the written consent of the Manager.
Section 2.13 Servicer's Fees. The Servicer shall receive as
compensation for all services performed hereunder an amount equal to1/12 of 0.3%
of the principal balance of all
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Loans as of the end of each month. In the event that the Servicer is requested
by the Manager to assist or perform specific functions in connection with the
collection of delinquent Loan accounts, handling of problem Loans, review of
loan documentation, renegotiation of Loans, or with the handling of foreclosure
or other real estate owned, the Servicer shall receive reasonable compensation
for supplemental fees and expenses as negotiated with the Manager on a
case-by-case basis.
ARTICLE III
ALLOCATION OF CHARGES AND EXPENSES
Section 3.01 Expenses of the Servicer. Without regard to the
compensation the Servicer receives from the Manager pursuant to this Agreement,
the Servicer shall bear the following expenses incurred in connection with the
performance of its duties under this Agreement:
(a) Employment expenses of the personnel or independent
contractors employed by the Servicer, including, but not limited to,
salaries, wages, payroll taxes, fees and the cost of employee benefit
plans;
(b) Rent, telephone, utilities, office furniture, equipment
(including, but not limited to computers), machinery, and other office
expenses of the Servicer;
(c) Miscellaneous administrative expenses incurred in supervising
and monitoring the Loans or relating to performance by the Servicer of
its obligations hereunder; and
(d) Travel and other expenses of directors, officers, and
employees of the Servicer.
Section 3.02 Expenses of the Manager. Except as otherwise expressly
provided above, the Manager shall pay all expenses of the Manager, including,
without limitation:
(a) Salaries, fees and out-of-pocket expenses, as applicable, of
all officers and directors of the Manager;
(b) Costs and expenses of printing and distributing any annual and
interim reports and sales material, and prospectuses to be used in
connection with an offering to the public;
(c) Charges and expenses for non-routine accounting and auditors;
(d) Taxes and fees payable by the Manager to federal, state, or
other governmental agencies;
(e) Charges and expenses of legal counsel for the Manager; and
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(f) Rent, telephone, utilities, office furniture, equipment
(including, but not limited to, computers), machinery and other office
expenses of the Manager.
ARTICLE IV
WARRANTIES OF SERVICER
Section 4.01 Representations and Warranties of the Servicer. The
Servicer represents and warrants to the Manager as follows:
(a) The Servicer is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of
Missouri, and it possesses the requisite authority to enter into this
Agreement and to consummate all of the transactions contemplated
hereby.
(b) The execution, delivery and performance of this Agreement has
been duly authorized by the Servicer and all proceedings necessary to
consummate all of the transactions contemplated by this Agreement have
been taken by the Servicer.
(c) The Servicer is fully licensed, qualified to do business, and
in good standing in each state in which it does business.
(d) The execution and delivery of this Agreement are not and will
not be a breach, violation or event of default (or an event which would
become an event of default with the lapse of time or notice or both)
under any judgment, decree, agreement, indenture or other instrument to
which the Servicer is a party or otherwise subject.
(e) The consummation of the transactions contemplated by this
Agreement will not result in a violation or infraction by the Servicer
of any applicable federal, state or local law, rule or regulation.
(f) Upon execution and delivery of this Agreement, it shall be a
valid and binding obligation of the Servicer, enforceable against the
Servicer in accordance with its terms.
(g) As of the date of this Agreement, there is no pending or
threatened litigation, adverse claim or action, of any kind or nature
which, if decided against the Servicer, would materially and adversely
affect the Servicer's ability to perform its obligations pursuant to
this Agreement. The Servicer agrees to promptly notify the Manager of
the subsequent existence of any such pending or threatened litigation,
adverse claim or action.
Section 4.02 Representations and Warranties of the Manager. The Manager
represents and warrants to the Servicer as follows:
(a) The Manager is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of
Georgia, and it possesses the
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requisite authority to enter into this Agreement and to consummate all of the
transactions contemplated hereby.
(b) The execution, delivery and performance of this Agreement has
been duly authorized by the Manager and all proceedings necessary to
consummate all of the transactions contemplated by this Agreement have
been taken by the Manager.
(c) The Manager is fully licensed, qualified to do business, and
in good standing in each state in which it does business.
(d) The execution and delivery of this Agreement is not and will
not be a breach, violation or event of default (or an event which would
become an event of default with the lapse of time or notice or both)
under any judgment, decree, agreement, indenture or other instrument to
which the Manager is a party or otherwise subject.
(e) The consummation of the transactions contemplated by this
Agreement will not result in a violation or infraction by the Manager
of any applicable federal, state or local law, rule or regulation.
(f) Upon execution and delivery of this Agreement, it shall be a
valid and binding obligation of the Manager, enforceable against the
Manager in accordance with its terms.
(g) As of the date of this Agreement, there is no pending or
threatened litigation, adverse claim or action, of any kind or nature
which, if decided against the Manager, would materially and adversely
affect the Manager's ability to perform its obligations pursuant to
this Agreement. The Manager agrees to promptly notify the Servicer of
the subsequent existence of any such pending or threatened litigation,
adverse claim or action.
ARTICLE V
INDEMNIFICATION
The Servicer shall hold harmless and indemnify the Manager from any and
all claims, liability, cause of action, or expenses (including, but not limited
to, legal fees) arising out of negligence or misconduct on the part of the
Servicer's officers, employees, agents, or independent contractors. The Manager
shall hold harmless and indemnify the Servicer from any and all claims,
liability, cause of action, or expenses (including, but not limited to, legal
fees) arising out of negligence or misconduct on the part of the Manager's
officers, employees, agents, or independent contractors.
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ARTICLE VI
DURATION AND TERMINATION OF THIS AGREEMENT
Section 6.01 Effective Date. This Agreement shall become effective as
of the date first above written and shall terminate on the first anniversary
date from the date first above written unless earlier terminated as provided in
Sections 6.02 or 6.03 hereof.
Section 6.02 Termination. This Agreement may be terminated at any time
without payment of any penalty by the Manager, provided that the Manager
provides one hundred twenty (120) days' written notice to the Servicer, or by
the Servicer, provided that the Servicer gives one hundred twenty (120) days'
written notice to the Manager. Upon termination of this Agreement, the Servicer
shall account for and turn over to the Manager all funds collected under each
Loan, less only the compensation then due the Servicer, and deliver to the
Manager all books, records and documents that it may have in its possession
relating to each Loan.
Section 6.03 Assignment. This Agreement shall automatically terminate
in the event of its assignment.
ARTICLE VII
MISCELLANEOUS
Section 7.01 Amendment. This Agreement may be amended at any time by
mutual consent of the parties.
Section 7.02 Governing Law. This Agreement shall be construed in
accordance with the laws of the State of Georgia
Section 7.03 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, with the same
effect as if the signatures hereto were upon the same instrument.
[EXECUTION ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
MANAGER:
ONE CAPITAL ADVISORS, LLC, a Georgia
limited liability company
By: /s/ X.X. Xxxxxxxx
----------------------------------------
Name:
---------------------------------
Title:
--------------------------------
SERVICER:
NATIONAL LOAN SERVICES, LLC, a Missouri
limited liability company
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name:
---------------------------------
Title:
--------------------------------
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EXTENSION OF
LOAN SERVICING AGREEMENT
By mutual consent, ONE CAPITAL ADVISORS, LLC and NATIONAL LOAN
SERVICES, LLC hereby extend that certain Loan Servicing Agreement dated the 1st
day of July, 2001, through the 30th day of June, 2002.
ONE CAPITAL ADVISORS, LLC
By: /s/ X.X. Xxxxxxxx
-----------------------------------------------
Name:
------------------------------------------
Title:
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NATIONAL LOAN SERVICES, LLC
By: Assemblies of God Financial Services Group,
its Sole Member
By: /s/ Xxxxxxx X. Xxxxxx
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Name:
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Title:
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EXTENSION OF
LOAN SERVICING AGREEMENT
By mutual consent, ONE CAPITAL ADVISORS, LLC and NATIONAL LOAN
SERVICES, LLC hereby extend that certain Loan Servicing Agreement dated the 1st
day of July, 2001, through the 30th day of June, 2003.
ONE CAPITAL ADVISORS, LLC
By: /s/ X.X. Xxxxxxxx
-------------------------------------------
X.X. Xxxxxxxx, President
NATIONAL LOAN SERVICES, LLC
By: Assemblies of God Financial Services Group
Its: Sole Member
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, President/CEO
