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Exhibit
10.3
SERVICING
AGREEMENT
BETWEEN
BROOKE
CORPORATION
AND
BROOKE CREDIT
CORPORATION
This Servicing Agreement
(this “Agreement”) is made and entered into as of
July 18, 2007, by and between Brooke Credit Corporation, a
Delaware Corporation (the “Company”), and Brooke
Corporation, a Kansas corporation (“BC”).
WHEREAS, the Company desires
to engage BC to provide the Services (as defined below) to the
Company according to the terms and subject to the conditions set
forth herein.
NOW THEREFORE, in
consideration of the premises and the agreements, covenants and
representations herein contained, the parties hereto agree as
follows:
a. BC shall provide to
Company the services described in Exhibit A , Schedule of
Services, attached hereto (which services are hereinafter referred
to as the “Services”). BC shall have no obligation to
perform any services or have any obligations pursuant to this
Agreement, except as specifically set forth on Exhibit A, or
otherwise specifically set forth in this Agreement. BC shall
perform the Services in accordance with its customary standards,
policies and procedures in performing similar obligations with
respect to similarly situated third parties.
b. Reserved.
c. BC grants to the Company a
non-exclusive, non-transferable, and royalty-free license to use
the name “Brooke” and such trademarks and service marks
as are registered by BC with the United State Patent and Trademark
Office or claimed by BC and pending registration with such
Trademark Office (collectively, such name and marks to be referred
to as the “Licensed Marks”) solely in connection with
the Company’s operation of its business. The Company shall
make no other use of the Licensed Marks. The Company acknowledges
and agrees that the rights granted to the Company by and obtained
by the Company as a result of or in connection with this Agreement
are license rights only, and nothing contained in this Agreement
constitutes or shall be construed to be an assignment of any or all
of BC’s rights in any of the Licensed Marks. BC retains the
right to specify, from time to time, the format in which the
Company shall use and display each Licensed Mark, and the Company
shall only use or display the Licensed Mark in a format approved by
BC. The Company shall not at any time, whether during or after the
term of this Agreement, do or cause to be done any act or thing
challenging, contesting, impairing, invalidating, or tending to
impair or invalidate any of BC’s rights in any of the
Licensed Marks or any registrations derived from such rights. The
Company shall not assign, sublicense, transfer, or otherwise convey
the Company’s rights or obligations with respect to the
Licensed Marks without BC’s prior written consent. The
Company shall promptly notify BC of any and all infringements,
imitations, simulations or other illegal use or misuse of any of
the Licensed Marks which come to the Company’s attention. As
the sole owner of the Licensed Marks, BC shall determine whether to
take any action to prevent the infringement, imitation, simulation
or other illegal use or misuse of the Licensed Marks. The Company
shall render BC all reasonable assistance in connection with any
matter pertaining to the protection, enforcement or infringement of
the Licensed Marks used by the Company, whether in the courts,
administrative or quasi-judicial agencies, or otherwise. In the
event BC intends not to renew this agreement, enter into a
replacement servicing agreement or enter into another agreement
that provides the rights to the Company set forth in this paragraph
1(c), BC will provide the Company with notice of its intention and
the Company will continue to enjoy the rights set forth in this
paragraph 1(c) for a period of 90 days following the later of:
(i) the receipt by the Company of
such written notice; or
(ii) the expiration of the agreement which provides for the
rights set forth in this paragraph 1(c) or rights substantially
similar thereto. Nothing set forth in this agreement shall be
interpreted to require the Company to utilize the Licensed Marks.
Likewise, if the Company’s use of the Licensed Marks is
reasonably determined to have caused, or have the potential of
causing, material damage to the value of the Licensed Marks, BC may
terminate the license granted to the Company upon 90 days written
notice.
| 2. |
Term . The initial term of this Agreement shall begin on
the date first above written and expire on December 31, 2007,
subject to the terms and provisions of Section 6 below. This
Agreement shall be renewed upon terms and conditions mutually
agreed by the parties for a subsequent term of one year |
a. In consideration of the
performance of the Services by BC, the Company shall pay to BC the
fees set forth in the Schedule of Fees attached hereto as Exhibit B
(the “Contract Sum”) at the times and in accordance
with Exhibit B. The Contract Sum shall be the sole compensation due
BC in connection with its performance of the Services.
b. Unless otherwise agreed in
writing, BC shall be entitled to reimbursement from the Company for
out-of-pocket expenses incurred in the performance of the Services
unless BC is specifically responsible for such amounts as set forth
on the Schedule of Reimbursements attached hereto as Exhibit C at
the times and in accordance with Exhibit C.
c. Unless otherwise agreed in
writing, BC shall be responsible for fees incurred in connection
with retaining any additional independent contractors or
subcontractors in connection with performing the
Services.
| 4. |
Events of Default by BC . The following shall constitute
“BC Events of Default” hereunder by BC: |
a. failure on the part of BC
duly to observe or perform in any material respect any of the
covenants or agreements on the part of BC set forth in this
Agreement which continues unremedied for a period of fifteen
(15) days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given
to BC by the Company (unless such failure is the result of the
Company’s failure to observe or perform any of its
obligations hereunder, in which case BC’s failure shall not
constitute an event of default); or
b. a decree or order of a
court or agency or supervisory authority having jurisdiction in the
premises in an involuntary case under any present or future federal
or state bankruptcy, insolvency or similar law or appointing a
conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against BC and such decree or
order shall have remained in force undischarged or unstayed for a
period of sixty (60) days; or
c. BC shall consent to the
appointment of a trustee, conservator or receiver or liquidator in
any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to BC or of or
relating to all or substantially all of the property of BC;
or
d. BC shall admit in writing
its inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations or
take any action in furtherance of the foregoing.
| 5. |
Events of Default by the Company . The following shall
constitute “Company Events of Default” hereunder by the
Company: |
a. any failure by the Company
to make any payment required to be made by the Company to BC within
20 days of the date of invoice date; or
b. any failure on the part of
the Company duly to observe or perform in any material respect any
other of the covenants or agreements on the part of the Company set
forth in this Agreement or any governing document by and between
the Company and BC for the transactions being serviced which
continues unremedied for a period of fifteen (15) days after
the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Company by BC;
or
c. a decree or order of a
court or agency or supervisory authority having jurisdiction in the
premises in an involuntary case under any present or future federal
or state bankruptcy, insolvency or similar law or appointing a
conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Company and such
decree or order shall have remained in force undischarged or
unstayed for a period of sixty (60) days; or
d. the Company shall consent
to the appointment of a trustee, conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings of or relating to the
Company or of or relating to all or substantially all of the
property of Company; or
e. the Company shall admit in
writing its inability to pay its debts generally as they become
due, file a petition to take advantage of any applicable insolvency
or reorganization statute, make an assignment for the benefit of
its creditors, or voluntarily suspend payment of its obligations or
take any action in furtherance of the foregoing.
(a) Remedies of the Company.
If a BC Event of Default shall occur, the Company (i) may
terminate this Agreement by giving thirty (30) days prior
written notice to BC, and (ii) shall be entitled to any and
all other rights and remedies under law or in equity.
(b) Remedies of BC. If a
Company Event of Default shall occur, BC (i) may terminate
this Agreement and resign by giving thirty (30) days prior
written notice to the Company, and (ii) shall be entitled to
any and all other rights and remedies under law or in
equity.
(c) Payment of Fees Upon
Termination. Whether this Agreement is terminated through
Section 2 or Section 6, BC shall be entitled to be paid
any and all fees which remain accrued and unpaid through the final
date of the rendering of the Services. In addition, within five
(5) business days of any termination, BC will return any of
the Company’s materials at the Company’s expense. The
terms and provisions of this Section 6(c) shall survive any
termination of this Agreement.
(d) Limitation of Damages.
Neither party shall be liable to the other party for punitive,
consequential or indirect damages. Additionally, the Company
acknowledges that BC is merely providing a service for a fee under
this Agreement. Accordingly, BC shall not be liable to Company
under this Agreement for any amounts in excess of any fees paid to
BC hereunder, unless such loss or damage is caused by the gross
negligence or willful misconduct of BC. The terms and provisions of
this Section 6(d) shall survive any termination of this
Agreement.
| 7. |
Notices . No notice or other communication shall be
deemed given unless sent in any of the manners, and to the persons,
specified in this Section. All notices and other communications
hereunder shall be in writing and shall be deemed given
(a) upon receipt if delivered personally (unless subject to
clause (b)) or if mailed by registered or certified mail,
(b) at noon on the date after dispatch if sent by overnight
courier or (c) upon the completion of transmission (which is
confirmed by telephone or by a statement generated by the
transmitting machine) if transmitted by telecopy or other means of
facsimile which provides immediate or near immediate transmission
to compatible equipment in the possession of the recipient, in any
case to the parties at the following addresses or telecopy numbers
(or at such other address or telecopy number for a party as will be
specified by like notice): |
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If to Company: |
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Brooke
Credit Corporation |
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10950
Grandview Drive |
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Suite
600 |
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Overland
Park, Kansas 66210 |
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Attn:
Michael Lowry |
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If to
BC: |
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Brooke
Corporation |
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10950
Grandview Drive |
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Suite
600 |
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Overland
Park, Kansas 66210 |
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Attn:
General Counsel |
| 8. |
Independent Contractor . In its performance and
completion of the Services and any of its other duties and
obligations under this Agreement, BC shall at all times be deemed
to be an independent contractor and nothing in this Agreement shall
at any time be construed so as to create the relationship of
employer and employee, principal and agent, partnership or joint
venture as between BC and Company. BC shall have the entire charge,
control and supervision of its performance of the Services and any
of its other duties and obligations under this Agreement, subject
to the terms and provisions of this Agreement and Exhibit A
hereto. Both parties acknowledge that they shall have no authority
to bind the other party to any contractual or other obligation
whatsoever. |
| 9. |
Indemnity. BC agrees to indemnify, defend and hold
harmless the Company and its directors, members, managers, officers
and employees from and against any and all loss, liability, claim,
damage, cost or expense (including without limitation reasonable
legal fees and expenses and all other costs and expenses incurred
in investigating, preparing for or defending any proceeding,
commenced or threatened, incident to the foregoing or to the
enforcement of this Section 9) suffered or incurred by the
Company and arising out of, or in connection with (i) any act
or omission of BC or any of its employees, (ii) any breach by
BC of any covenant, obligation or representation or warranty (as of
the date when made) of BC contained in this Agreement, and/or
(iii) any claim by any third party in any way related directly
or indirectly to the subject matter of this Agreement unless the
claim relating thereto is directly attributable to breach of this
Agreement, willful misconduct, bad faith, fraud or negligence of
the Company or any of its directors, members, managers, officers or
employees. The Company hereby agrees to indemnify,
defen |
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