Exhibit 10.5
MANAGEMENT SERVICES AND ALLOCATION OF EXPENSES AGREEMENT
AGREEMENT, made as of this 2nd day of September, 1997, by and between
InvestorsBank, a Wisconsin banking organization, located at W239 X0000
Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxxx ("Bank"), and Bando XxXxxxxxxx Capital
Corporation, a Wisconsin corporation, located at W239 X0000 Xxxxx Xxxx &
Xxxxxxx X, Xxxxxxxx, Xxxxxxxxx 00000-0000 ("Bando").
WHEREAS, the Bank and Bando wish to establish a contractual
relationship to permit employees of the Bank to manage the loans (i) made
by Bando as of the date hereof 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 after the date hereof which are purchased by Bando
(in whole or in part) (collectively, the "Bando Loans"), to permit Bank
employees to provide accounting services to Bando and to share certain
overhead and lease 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 retain 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 and to provide accounting services to Bando; and
WHEREAS, it is in the best interest of the Bank and Bando to share
certain overhead and lease expenses in order to maximize the savings to
the Bank and Bando.
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 wavier, 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 attorneys' fees shall be added to the
amount owing 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
paragraph 1(a).
2. 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 spent by its
employees in providing such accounting services and shall charge and Bando
shall pay on a monthly basis for the actual cost 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).
3. 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.
4. 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 managed by the Bank as it does its own loans assets. So long as the
Bank exercises such care in the servicing and management of the Bando
Loans, 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, except for it willful
misconduct.
5. Representations. 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.
6. 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, receptionist services,
depreciation and other miscellaneous expenses. Bando shall pay these
expenses and shall charge and the Bank shall pay for the Bank's one-half
of the expenses on a monthly basis.
7. Sublease. Bando has entered into a lease agreement with Bando
XxXxxxxxxx Real Estate Investment Corp. ("BMREIC") pursuant to which Bando
will lease the Demised Premises (as defined in such lease) for a monthly
rent established in the lease. The lease is a triple net lease. The Bank
acknowledges that Bando may lease a portion of the Demised Premises to
other subtenants. The Bank shall pay Bando on a monthly basis 29.67% of
the amounts due under the lease, including 29.67% of the charges for gas
and maintenance. The Bank shall pay Bando on a monthly basis 50% of
Bando's charges for electricity. At no time shall the Bank be charged any
amount as a result of any action or inaction by any other subtenant which
would require Bando to pay additional amounts under the lease.
8. Netting. The Bank shall subtract from the amount it charges to
Bando for the Loan Management Services and Accounting Services, pursuant
to paragraph 2 and 3 of this Agreement, the amount the Bank owes to Bando
for overhead and lease payments pursuant to paragraphs 7 and 8 of this
Agreement. The net amount shall be the amount the Bank shall charge and
Bando shall pay on a monthly basis.
9. 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.
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.
10. Term. The term of this Agreement shall be one (1) year from the
effective date of this Agreement, 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 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.
11. 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 learns during the course of its
performance under this Agreement, without the prior consent of Bando.
12. 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.
13. Miscellaneous.
a. This Agreement sets forth the entire understanding of the
parties as to its subject matter and any 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
BANDO XXXXXXXXXX CAPITAL CORPORATION
By
/s/ Xxxxxx Xxxxxxxx
Xxxxxx X. Xxxxxxxx, Its President
