EXHIBIT 10.2
AMENDED AND RESTATED
MANAGEMENT SERVICES AND ALLOCATION OF EXPENSES AGREEMENT
THIS AMENDED AND RESTATED MANAGEMENT SERVICES AND ALLOCATION
OF EXPENSES AGREEMENT, made as of this 9th day of May, 2001, by and between
InvestorsBank, a Wisconsin banking organization, located at W239 X0000 Xxxxx
Xxxx, Xxxxxxxx, Xxxxxxxxx ("Bank"), and THE MIDDLETON DOLL COMPANY and BANDO
XXXXXXXXXX SMALL BUSINESS LENDING CORPORATION (such corporations collectively
referred to herein as "Bando"), a Wisconsin corporation, located at W239 X0000
Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxxx 00000-0000.
WHEREAS, the Bank and Bando have hereunto established a
contractual relationship to permit employees of the Bank to manage the loans
(i) made by Bando that are either on Bando's balance sheet or sold by Bando but
for which Bando retains servicing obligations; and (ii) originated by the Bank
or other financial institutions which are purchased by Bando (in whole or in
part) (collectively, the "Bando Loans"), to permit Bank employees to provide
accounting services to Bando, to provide leased property services to Bando and
to share certain overhead expenses as between the Bank and Bando, all in
accordance with the terms and conditions of this Agreement; and
WHEREAS, Bando and the Bank each possess similar loan assets
requiring loan administration services and expertise; and
WHEREAS, the Bank employs persons with the necessary
qualifications and expertise to manage and provide loan administration services
to the Bando Loans, to provide accounting services to Bando and to provide
leased property services; and
WHEREAS, it is in the best interest of the Bank and Bando to
share certain overhead expenses in order to maximize the savings to the Bank and
Bando; and
WHEREAS, the Bank and Bando are parties to a certain
"Management Services and Allocation of Expenses Agreement," dated as of
September 2, 1997, as amended by letters dated April 2, 1998 and May 18, 1998
and pursuant to an oral agreement (effective as of January 1, 1998) approved by
the Board of Directors of Bando on May 13, 1999 (the Management Services and
Allocation of Expenses Agreement, the two letters and the oral agreement being
collectively referred to herein as the "Agreement"); and
WHEREAS, the Bank and Bando desire to amend and restate the
Agreement so that the Agreement, as amended and restated, includes the terms of
the original Management Services and Allocation of Expenses Agreement, the two
letters and the oral agreement.
NOW, THEREFORE, for and in consideration of the premises and
mutual covenants contained in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. Loan Management Services.
(a) The Bank shall service and administer the Bando Loans and
shall have full power and authority, acting alone, to do any and all things in
connection with such servicing and administration which the Bank may deem
necessary or desirable including, but not limited to, the following:
The Bank may waive, modify or vary any term of any Bando Loan
or consent to the postponement of strict compliance with any such term or in any
manner grant indulgence to any obligor if, in the Bank's determination, such
waiver, modification, postponement or indulgence is not materially adverse to
the interests of Bando; provided, however, that, unless the obligor is in
default with respect to the Bando Loan, or such default is, in the judgment of
the Bank, imminent, the Bank may not permit any modification with respect to any
Bando Loan that would change the loan interest rate, defer or forgive the
payment of any principal or interest (unless in connection with the liquidation
of the related Bando Loan), or extend the final maturity date on such Bando
Loan. All out-of-pocket costs incurred by the Bank, including but not limited
to, the cost of appraisals, title insurance and attorney's fees shall be added
to the amount owning under the related Bando Loan. Without limiting the
generality of the foregoing, the Bank shall continue and is hereby authorized
and empowered to execute and deliver on behalf of Bando all instruments of
satisfaction or cancellation, or of partial or full release, discharge and all
other comparable instruments, with respect to the Bando Loans and with respect
to any mortgaged properties or other collateral. If reasonably required by the
Bank, Bando shall furnish the Bank with any powers of attorney and other
documents necessary or appropriate to enable the Bank to carry out its servicing
and administrative duties under this Agreement.
(b) In consideration for the Bank's loan management services to
Bando under this Agreement, the Bank shall charge and Bando shall pay on a
monthly basis a fee equal to one-twelfth of twenty-five (25) basis points
multiplied by the amount of Bando Loans outstanding at the end of the preceding
month plus all of the Bank's out-of-pocket expenses described in Section 1(a).
(c) As agent of Bando, Bank may originate loans for the benefit of
Bando to Bando customers and shall be entitled to a loan origination and
processing fee of $2,500 for each loan so originated and processed. For purposes
of this Section 1(c), "originate loans to Bando customers" means refinancing
loans, renewing loans and making new loans to then existing Bando customers.
(d) From time to time, the Bank may sell, and Bando may purchase,
participations in loans made by the Bank. Any such participations shall be made
proportionately with the face amount of such loans and shall bear the same
interest rate. No loan origination fees shall be paid with respect to such
loans.
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2. Leased Property Servicing.
(a) In general, Bank shall be Bando's agent in all matters
relating to the lease arrangements between Bando, as property owner, and lessees
(the properties subject to such lease arrangements being called the "Leased
Properties"), including the collection of rents and insuring that real estates
taxes are duly paid and that insurance coverages are maintained. Bank, as
Bando's agent, shall deal directly with lessees and others in all matters
pertaining to such leases. In addition, Bank shall use its best efforts to
obtain properties to be owned by Bando and leased to corporations or others on a
triple net lease basis. In furtherance thereof, Bank shall be responsible for
obtaining properties, securing lessees, preparing all necessary papers and
documents and tending to all closing activities.
(b) On all properties acquired by Bando from Bando XxXxxxxxxx Real
Estate Investment Corporation, Bando shall pay the Bank a monthly leased
property servicing fee equal to one-twelfth (1/12) of twenty-five (25) basis
points multiplied by Bando's total cost of all such properties, as shown on its
books and records.
(c) On all properties owned by Bando other than those identified
in Section 2(b) above, Bando shall pay Bank a monthly leased property servicing
fee equal to six percent (6%) of the rental fees received on such properties
each month.
3. Accounting Services. The Bank shall provide accounting
services to Bando in accordance with the terms of this Agreement, which services
shall include, but not be limited to, the following:
(a) Preparation of internal management reports
(b) Preparation of external reports to shareholders and any
applicable regulatory agencies.
The Bank shall maintain a record of the actual time spend by its employees in
providing such accounting services and shall charge and Bando shall pay on a
monthly basis for the actual costs of providing such services. The actual cost
shall be the employee's hourly rate, plus a pro rata share of the cost of
bonuses and other benefits and perquisites of employment made available to such
employee(s).
4. Audits. Bando shall have the authority to audit the activities
and services provided by the Bank on reasonable notice to the Bank and at
Bando's expense during the term of this Agreement.
5. Standard of Care. The Bank shall perform its responsibilities
under this Agreement in accordance with its usual practices and shall employ or
cause to be employed procedures (including collection, foreclosure and
foreclosed property management procedures) and shall exercise the same degree of
care to protect Bando's interest in the Bando Loans and the Leased Properties
managed by the Bank as it does its own assets. So long as the Bank exercises
such care in the servicing and management of the Bando Loans and the Leased
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Properties, it shall not be under any liability to Bando with respect to
anything it may do or refrain from doing in the exercise of its judgment or
which may seem to the Bank to be necessary or desirable in the servicing and
management of the Bando Loans and the Leased Properties, except for its willful
misconduct.
6. Representations. Subject to Section 5 hereof, the Bank has not
made and does not make any representations or warranties, express or implied,
with respect to, and the Bank does not assume and has no responsibility or
liability for, the collectibility, enforceability or the validity of any of the
Bando Loans, the documents evidencing such loans, or the financial condition of
any borrower or any obligor on the loans or collateral securing the loans, or
other information furnished by the Bank to Bando nor does the Bank assume any
responsibility for the payment of rents or other payments required to be made by
any lessee of the Leased Properties.
7. Overhead Expenses. The Bank and Bando shall share on an equal
50/50 basis, their overhead expenses. These expenses shall include, but not be
limited to, expenses for telephones, office and computer expense, receptionist
services, building maintenance and other miscellaneous expenses. The Bank shall
pay these expenses and shall charge and Bando shall pay for Bando's one-half of
the expenses on a monthly basis.
8. Noncompetition. Bando agrees that, except as specifically
approved in writing by the Bank, Bando shall not originate any loans during the
term of this Agreement and any renewal thereof, except that Bando, through the
Bank, may make loans to then existing Bando customers, whether by refinancing
outstanding loans, increasing outstanding amounts or making new loans.
Notwithstanding the foregoing, Bando may, at its option, purchase loan
participations (100% or less) from any other lending institution, including, but
not limited to, the Bank.
9. Term. The term of this Agreement shall continue until May 1,
2002, at which time this Agreement shall be automatically renewed for successive
one (1) year terms unless prior to the original termination date or any
subsequent renewal date either party provides the other party with written
notice at least sixty (60) days in advance of the termination date of its intent
that this Agreement not be automatically renewed upon the occurrence of the next
scheduled termination date. This Agreement may also be terminated at any time by
mutual written consent of the Bank and Bando or by either party if the other
party fails to perform as required by this Agreement. Upon termination, Bando or
its designee shall assume all of the rights and obligations of the Bank. The
Bank shall, upon request of Bando but at the expense of the Bank, deliver to
Bando all documents and records relating to the Bando Loans and the Leased
Properties and an accounting of amounts collected and held by the Bank and
otherwise use its best efforts to effect the orderly and efficient transfer of
servicing rights and obligations to the assuming party.
10. Confidentiality. The Bank agrees that it shall not disclose to
any third party any information concerning the customers, trade secrets,
methods, processes or procedures or any other confidential, financial or
business information of Bando of which it
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learns during the course of its performance under this Agreement, without the
prior consent of Bando.
11. Books and Records. All books and records maintained by or for
Bando shall be the property of Bando and shall be returned or provided to Bando
by the Bank immediately upon Bando's request.
12. Miscellaneous.
(a) This Agreement sets forth the entire understanding of the
parties as to its subject matter and may not be modified except in writing
executed by both parties.
(b) If any provision of this Agreement is held invalid or
otherwise unenforceable, the validity or enforceability of the remaining
provisions shall not be impaired thereby.
(c) This Agreement shall be governed by and construed under the
laws of the State of Wisconsin.
INVESTORSBANK
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxx, Its President
THE MIDDLETON DOLL COMPANY
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxx, Its President
BANDO XxXXXXXXXX SMALL
BUSINESS LENDING CORPORATION
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxx, Its President
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