Exhibit 10.2
Mortgage Assistance Corporation
2614 Main Street o Dallas Tx 75226 o 214-670-0005 o 214-670-0001
www.mac-tx.com Trading Symbol: MTGC.OB
Servicing Contract
Member:
Member's Address:
Servicer: Mortgage Assistance Corporation
Servicer Address: 2614 Main Street, Dallas, TX 75226
Notes and/or REOs: Attachment A
This servicing agreement was made and entered into this _____ day of __________,
2006, between SERVICER and MEMBER.
MEMBER shall initial below where appropriate.
Section 1. Servicing of Notes
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Note Servicing: MEMBER hereby authorizes and instructs SERVICER, and SERVICER
agrees to service the "NOTES" and in that connection, to do the following:
A. To receive any and all payments due MEMBER on the NOTES, which includes but
is not limited to all monthly payments, all late payments and all payoffs
in full or in part. SERVICER is authorized to direct any payment to be made
payable to SERVICER's Trust Account;
B. To endorse to SERVICER's Trust Account any checks or money orders payable
to MEMBER and to immediately deposit same in SERVICER's Trust Account which
is to be maintained in accordance with such laws and rules applicable
thereto and as to which SERVICER will not commingle its assets;
C. To transmit MEMBER's portion of such payments of principal and interest as
required by laws, rules and regulations which are applicable. There is a
seven day hold on all checks to allow for clearing with the bank. Good
funds are delivered to MEMBER without a hold at the address shown herein.
SERVICER will not use such payment for any other transaction other than the
transaction for which the funds are received;
D. To provide periodic reporting on the MEMBER's NOTES that SERVICER is
servicing per this contract.
E. If the source of payment is not the maker of the NOTES, to so inform
MEMBER;
F. To cause SERVICER's Trust Account utilized for this transaction to be
inspected as required by such laws, rules and regulations as are applicable
thereto;
G. To take any other action which SERVICER deems necessary or convenient to
the collection and servicing of the NOTES including but not limited to
instituting foreclosure proceedings in the event of default or making such
payments for MEMBER's account or taking such other action as SERVICER deems
necessary or desirable to protect the security of the Security Agreement or
the priority thereof;
H. To execute and deliver on MEMBER's behalf and in MEMBER's name any
documents necessary or convenient for the exercise of any rights or duties
which MEMBER may have under the NOTES, including but not limited to Request
for Reconveyance, Payoff Demands, Beneficiary Statements, Declarations and
Notices of Default, bidding authorizations and other instructions to the
Trustee of the NOTES;
I. To receive Notices of Default of prior encumbrances and to promptly notifiy
MEMBER of any default upon the Notes and any prior encumbrances;
J. To grant such extensions or loan modifications as SERVICER deems reasonably
appropriate;
K. MEMBER may terminate SERVICER's authority hereunder only with 30 days
written notice and upon repayment and/or payment of the following:
1. Any outstanding payments made by SERVICER on MEMBER's behalf;
2. Any accrued expenses incurred by SERVICER in connection with servicing
the NOTES;
L. THE FOLLOWING PROVISIONS (1) & (2) APPLY ONLY TO LOANS IN WHICH MEMBER
HOLDS AN UNDIVIDED FRACTIONAL INTEREST IN THE NOTES:
1. A default upon any interest in the NOTES shall constitute a default
upon all interests. A simple majority in interest of lenders may
determine and direct the actions to be taken on behalf of all lenders
in the event of default or with respect to other matters requiring the
direction or approval of lenders, and such majority may designate the
SERVICER to so act in their behalf.
2. SERVICER shall furnish to MEMBER a list of names and addresses of all
lenders holding an interest in the NOTES upon five (5) days written
notice.
M. Fees will be according to the attached Fee Schedule.
Section 2 - Servicing of REOs
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I. REO Servicing: MEMBER hereby authorizes and instructs SERVICER, and SERVICER
agrees to service the "REOs" and in that connection, to do the following:
A. Authorize SERVICER to act on behalf of MEMBER as landlord to the REOs,
where applicable;
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B. Authorize SERVICER to manage, operate, control, rent and lease MEMBER'S
REOs.
C. Authorize SERVICER to contract for or undertake the making of all necessary
repairs and the performance of all other necessary work for the benefit of
the REOs including all required alterations to properly carry out this
agreement. SERVICER agrees to secure prior written approval of the MEMBER
on expenditures in excess of $1,000 except emergency repairs in excess of
the maximum if, in the opinion of SERVICER, such repairs are necessary to
protect the property from damage, prevent damage to life or to the property
of others;
D. To collect any and all payments due MEMBER, which includes but is not
limited to, all monthly RENT payments and all LATE payments. SERVICER is
authorized to direct any payment to be made payable to SERVICER's Trust
Account. There is a seven day hold on all checks to allow for clearing with
the bank. Good funds are delivered to MEMBER without a hold at the address
shown herein. SERVICER will not use such payment for any other transaction
other than the transaction for which the funds are received;
E. Any trust account SERVICER maintains under this agreement may be an
interest-bearing or income producing account. SERVICER may retain any
interest or income from such account as compensation under this agreement.
F. To hold security deposits from tenants in escrow or trust account until the
end of tenancy.
G. To endorse to SERVICER's Trust Account any checks or money orders payable
to MEMBER and to immediately deposit same in SERVICER's Trust Account which
is to be maintained in accordance with such laws and rules applicable
thereto and as to which SERVICER will not commingle its assets;
H. To provide periodic reporting on the MEMBER's REOs that SERVICER is
servicing per this contract;
I. To cause SERVICER's Trust Account utilized for this transaction to be
inspected as required by such laws, rules and regulations as are applicable
thereto;
J. To take any other action which SERVICER deems necessary or convenient to
the collection and servicing of the REOs including but not limited to
instituting eviction proceedings in the event of default or selling of the
REOs or making such payments for MEMBER's account or taking such other
action as SERVICER deems necessary or desirable to protect the MEMBER's
interest in the property. To advertise the property and display signs
thereon; to rent and lease the property; to sign, renew and cancel rental
agreements and leases for the property or any part thereof; to sue or
recover for rent and for loss or damage to any part of the property and/or
furnishings thereof; and, when expedient, to compromise, settle and release
any such legal proceedings or lawsuits;
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K. To execute and deliver on MEMBER's behalf and in MEMBER's name any
documents necessary or convenient for the exercise of any rights or duties
which MEMBER may have as to the REOs, including but not limited to
evictions, listing the property for sale, selling the property, or renting
the property;
L. To pay all operating expenses and such other expenses as requested by the
MEMBER from the rents received. This may include the payment of taxes and
insurance;
M. MEMBER may terminate SERVICER's authority hereunder only with 30 days
written notice and upon repayment and/or payment of the following:
1. Any outstanding payments made by SERVICER on MEMBER's behalf;
2. Any accrued expenses incurred by SERVICER in connection with servicing
the REOs;
N. MEMBER hereby agrees to hold SERVICER harmless from any and all claims,
charges, debts, demand and lawsuits, including attorney's fees related to
SERVICER's management of MEMBER's REOs, and from any liability for injury
on or about the properties which may be suffered by an employee, tenant or
guest upon the properties.
O. Fees will be according to the attached Fee Schedule.
Section 3 - General Provisions
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MEMBER represents that all of the persons designated above are over the age of
18 and are competent.
Make MEMBER Check Payable To:__________________________________________
Address: ______________________________________________________________
City, State, Zip Code: ________________________________________________
Tax ID Number: ________________________________________________________
DEFAULT: A party is in default if the party fails to cure a breach within 10
days after receipt of written demand from the other party. If either party is in
default, the non-defaulting party may: (a) terminate this agreement by providing
at least 10 days written notice; (b) recover all amounts due to the
non-defaulting party under this agreement; (c) recover reasonable collection
costs and attorney's fees; and (d) exercise any other remedy available at law.
SERVICER is also entitled to recover any compensation SERVICER would have been
entitled to receive if Member did not breach this agreement.
MEDIATION: The parties agree to negotiate in good faith in an effort to resolve
any dispute related to this agreement that may arise between the parties. If the
dispute cannot be resolved by negotiation, the dispute will be submitted to
mediation. The parties to the dispute will choose a mutually acceptable mediator
and will share the cost of mediation equally.
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ATTORNEY'S FEES: If MEMBER or SERVICER is a prevailing party in any legal
proceeding brought as a result of a dispute under this agreement or any
transaction related to or contemplated by this agreement, such party will be
entitled to recover from the non-prevailing party all costs of such proceeding
and reasonable attorney's fees.
SPECIAL PROVISIONS: This Agreement may be amended from time to time by the
parties pursuant to a written agreement or addendum signed by the SERVICER and
the MEMBER.
ENTIRE AGREEMENT: This document contains the entire agreement of the parties and
may not be changed except by written agreement.
ASSIGNMENTS: Neither party may assign this agreement without the written consent
of the other party.
BINDING EFFECT: MEMBER's obligations to SERVICER under this agreement are
binding upon MEMBER and MEMBER's heirs, executors, successors, and permitted
assignees.
JOINT AND SEVERAL: MEMBERS executing this agreement are jointly and severally
liable for the performance of all its terms. Any act or notice to , refund to ,
or signature of, any one or more of the MEMBERS regarding any term of this
agreement or its termination is binding on all MEMBERS executing this agreement.
GOVERNING LAW: Texas law governs the interpretation, validity, performance, and
enforcement of this agreement.
SEVERABILITY: If a court finds any clause in this agreement invalid or
unenforceable, the remainder of this agreement will not be affected and all
other provisions of this agreement will remain valid and enforceable.
CONTEXT: When the context requires, singular nouns and pronouns include the
plural.
NOTICES: Notices between the parties must be in writing and are effective when
sent to the receiving party's address as stated in this agreement.
MEMBER:
Signed: _________________________________ Date _________________
Print Name: _____________________________
Title: _________________________________
SERVICER: Mortgage Assistance Corporation
Signed: _________________________________ Date _________________
Print Name: _____________________________
Title: _________________________________
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Fee Schedule
1. Note Servicing: (for current notes)
$12.00 per note per month for standard servicing support that includes, but not
limited to item such as monthly mailings of statements and responding to
borrower requests. In addition, Members will pay any directly related expenses.
1. Default Management Fee: (for non-performing and REO)
$188.00 per Note or REO per month for standard default management support such
as collections, skip tracing, coordinating foreclosures, responding to
bankruptcy claims, and any overhead related to default management plus REO sales
coordination, forced insurance placements, property management and evictions. In
addition, all directly related fees or commissions, internal or outsourced, will
be charged to MEMBER's account
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