Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02485-MSK-PAC

Document 367-6

Filed 03/07/2006

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EXHIBIT U

Case 1:03-cv-02485-MSK-PAC

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EMPLOYMENT AGREEMENT

This Agreement (the "Agreement") establishing an employment relationship is between Heartland Mortgage Company and\or Heartland Home Finance, ~. (hereinafter collectively
referred to as "Heartland" or "Employer") and ¿? a m/ lie / j r- (the

"Employee"), is dated as of this JL day of l-1 u Iv , 20£2.
WHEREAS, Heartland is a licensed residential mortgage origination company in varous states as fully disclosed on Rider A attached hereto and maintains a corporate office at 1401 Branding Lane, Suite 300, Downers Grove, IL 60515 (the "Home Offce"); and
services related to this Agreement working out of the Heartland offce designated on Rider B attached hereto and may only originate residential mortgage loans in those states listed on Rider B attached hereto; and
WHEREAS, it is the intention of the parties that the Employee is to perform all WHEREAS, Employee has experience and knowledge in the origination of mortgages or desires to gain experience in the origination of

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residential residential mortgages and once ;

employed wil be responsible for assisting Heartland in originating residential mortgage loans; and

WHEREAS, Heartland seeks to retain the Employee for the purpose of assisting Heartland in the perfoimance of the origination of residential mortgage loans (hereinafter
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WHEREAS, Employee is wiling to make its services available to Heartland for the
purpose of assisting Heartland in the origination of

residential mortgage loans;

NOW, THEREFORE, in consideration of suffciency of

the mutual covenants, herein contained, the which is acknowledged, it is agreed as follows:

i. EMPLOYMENT AND ACCEPTANCE OF EMPLOYMENT: Heartland hereby employs the Employee and the Employee hereby accepts employment upon the terms and conditions hereinafter set forth.
2. AT WILL EMPLOYMENT: Subject to applicable law in the state or states in which this Agreement will be performed, Employee understands and agrees that Employee=s employment by Employer shall be at all times Aat will0i employment. Employer reserves the
right to tenninate Employee=s eiIiployment with Employer at any time for any reason whatsoever, with or without cause. Likewise, Employee may resign Employee=s employment

with Employer at any time for any reason.

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3. REPRESENTATIONS AND WARRNTIES OF EMPLOYEE: (a). (i) Employee represents that he will perform his duties pursuant to this Agreement as govenied by applicable
state and federal

law and will assist only Heartland in the performanceofmortgage loan

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origination activities. (ii) Employee represents that Employee shall have no authority to bind Employer to the payment of any money or the doing of any act or thing, or incur any debt, obligation, liability or expense for which Employer is or may become liable without first Employer=s prior wrtten consent, Employer. In the absence of obtaining the written consent of by Employee shall be the sole responsibility of any debt, obligation, liability or expense incurred Employee, and Employer shall have no liability for or obligation to Employee regarding such debt, obligation, liability or expense.

(b). The Employee acknowledges that he has been informed that the EmployerstrictIy
forbids the solicitation of any customers whose loan applications were pending atthe time ofthe
termination of the Employee from any previous employment, either as any employee

or

independent contractor, for the purpose of switching these loans from the previous employer to the Employer. The Employee represents that he shall not solicit any customers whose loan
applications were pending at the time of termination of any previous employient either as any
employee or independent contractor, for the purpose of switching these employer to the Employer. The Employee further represents that he has not taken any

loans from the previous
written

records and computer disks which are the property of any previous employer and shall not use any such written records or computer disks to solicit any loan applicants nor shall he use any material subject to applicable copyright protection for any purpose related to his employment by
the Employer.

(c). The Employee represents that as of the date of this Agreement the Employee is not

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bound by (i) a?y contractual obligation to a previous Employer that would restrct the Employee

from entering into this Agreement or in any way competing with a previous employer; (11) or any other contractual agreement relating to any full or part time employment.

(d). The Employee represents and warrents that his employment with Heartland is and wil be exclusive, and the Employee shall not have (i) other full or par time employment; or (ii)
perform any residential mortgage origination activities for any other company licensed pursuant to applicable state law or any other entity exempt from licensure and/or any other entity that is required to become licensed under applicable state law but has not become so licensed.

(e). The Employee agrees to safeguard and keep secret from other Hearland employees his computer passwords and user name, designated Heartland Information Technology personnel excepted.
(t). In regard to any applicable state licensing requirements to which the Employee is
subject, (i) the Employee will advise Heartland (in writing within 10 days) when he is licensed or

when his license status changes or if a license is denied or if a license is revoked; (ii) the Employee wil advise the licensing authority (in writing within 10 days with a copy to Heartland) when he changes Employment to Heartland or from Heartland to another employer.

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(g). The Employee further represents to Hearland that he understands that it is the
Employee=s responsibility to obtain applicable licenses and to keep such licenses current and

in

good standing and to fulfill any applicable state continuing education requirements. The

Employee acknowledges that he shall not be depending on Hearland in regard to any information or requirement as to the Employee=s licenses.
the 4. TERM OF AGREEMENT: Subject to applicable law in

jursdiction in which this

contract wil be performed, this Agreement shall remain in effect for a period of twelve (12)
months from the date of this Agreement,

unless terminated in accordance with the termination

month period, this

provisions hereinafter set forth. Ifnot terminated within such twelve (12)

periods of 30 days unless terminated in accordance with the termination provisions hereinafter set forth.
Agreement shall renew for additional

5. TERMINATION: (a) This Agreement maybe terminated:
(i) by mutual written agreement of the parties;
(ii) by either party without cause upon written notice;
cause, upon amaterial breach of any term of (iii)by the Employer immediately with

this

Agreement;

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(iv) by the Employer immediately upon the disqualification of residential mortgages in any

the Employee to originate state 11 which Employee is alloweô-to originate aslrste-roirRider-B----

attached hereto;

(v) by the Employer immediately ifthe Employee has committed an act in violation of
the law; or has knowingly submitted false information ona loan application; or knowingly submitted an appraisal with knowledge that it falsely describes the propert or its value; or has

submitted false or misleading underwriting documentation in regard to a mortgage loan to the Employer or an investor to whom the Employer originates mortgage loans; or has breached the this Agreement; or has violated the Employer=s policies and procedures; or has terms of
originated a loan in a state not allowed to the Employee

(as listed on Rider B attached hereto); all

as detèrmined by the Employer, in its sole discretion;
(vi) immediately upon the Employee=s death;
(vii) by the Employer in the event that the Employee has a permanent disability that
makes it impossible for the Employee to perform the essential functions of the job even with reasonable accomodation.

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Upon such termination Heartland shall continue to process all mortgage loan

applications taken

by the Employee for Heartland through the date of such termination.
(b) Upon a termination without cause, any loan that funds within 15 days ofthe date of

such termination shall earn the Employee a full commission as set forth herein. After such 15 day period and continuing through the 30th day from such termination, the commission normally paid to the Employee wil be reduced by one half. After such period no further compensation wil be paid to the Employee. During such period after termination the Employee shall not be
event that
paid for a loan application taken on behalf ofthe Employer prior to termination in the the Employee solicits the same customer for a new loan for a new employer of

the Employee.

(c) Subject to applicable law, in the event of a termination with cause due to fraud in the monies the EmployeeshaU be origination of a residential mortgage, or misappropriation of client
paid only for loans which have closed prior to or on the date of such termination with cause.

6. EMPLOYEE=S DUTffS: The Employee agrees to actively engage on a full time the processing of mortgage loans to the general public and to assist in basis in the origination of
each loan application he originates. The Employee further agrees to maintain current records of
all applications in compliance with applicable state and federal

law, to maintain loan fies in

compliance with the policies and procedures set forth by the Employer, to follow all policies and procedures set forth by the Employer, not to make any representations or commitments on behalf
of

the Employer. In
the Employer, and at all times, to uphold the good name and reputation of

the Employer:
) addition the Employee shall pursuant to the policies and procedures of a. Arrange and/or attend closing of

said Loans; and

b. Collect all monies due and owing to Heartland as a result of each Loan transaction.
c. Take all Loan applications in the name of

Hearland and on behalf of

Heartland.
d. Remain current in issues relating to mortgage originations and investor requirements and to comply with all applicable state licensing requirements and continuing

education requirements of those states in which this Agreement will be performed.

verification of

the Employer which relate to the hours worked and pre-approved overtime hours.
e. Comply with all policies and procedures of

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7. DEPOSIT OF FUNDS: All funds received by the Employee pursuant to this
Agreement, such as application deposits for appraisal fees or credit reports, shall be made payable to Heartland and shall be immediately giveó to Heartland to be deposited to Hearland's
bank account with documentation as to the source, use and disposition

of said funds for

each Borrower.
8. COMPENSATION TOPARTffS: Heartlandagrees to make Employee in accordance with Schedule A attached hereto

payments to the

and incorporated by reference into this

Agreement.

9. ADVERTISING: Any advertising by Employee shall be pre-approved by Hearland
prior to its use. Advertising shall be deemed to include,

but shall not be limited to,

advertisements in newspapers, magazines, other periodicals, radio spots, mailing pieces, business cards, etc. Heartlandshall either approve or reject said advertising in a timely maner. All such advertising shall be on behalf of Heartland and shall comply with applicable law and state
liCensing requirements. To the extent any pre-approved advertising piece is directed individually

to the Employee, such Employee shall be responsible for all costs and charges associated with such advertising and shall at the time of a request for approval demonstrate to Hearland that
such advertising has been paid in fulL.

10. DELIVERY OF DOCUMENTATION: Employee agrees that upon entering into a Agreement with a Borrower (i.e. a Customer Agreement) the Employee shall immediately infonn
Heartland in writing and supply Heartland with a copy. Employee further agrees thatall

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pertinent data for eacrioan file shalTheaeJivereô-iOlne office oÍHeanlanô outofw1ûIrtne----- --Employee works in a timely manner. Heartland shall maintain said fies in such office and such during normal business hours. files shall be made avaìlable for review by Employee

1 I. REIMB3EMENT POR TIl'\INING COSTS' In--the--enhat the.ßmplG)',bas el~ted to reeoive gpeeÜi! t~Bmployei..he_Empleyee-agr.eeso_.reimbur-s-the
Employer fõl tIie. cost of s'.ieh-tmining as indicatOn Employee agreeS-hat the cosloucli

ti:ail1ing is as detailed on Rider G-eher:vllt.he-Empl-e-k:vs-jtEl-this Agieement 111; i:s iespbl~-fr rn~lldi:g full-fbursement fer-t

~äJl¡i YI;I ::alj of

ti:ainirig cot as sct forth on Rider c: Such sum-Sall beeome.iini-ley--tid-ayable-from~
the Employee upon written de;111äl11. In the eye;1lHhJoy-e.L.ru~lJ.~s.QI to.legalproceedings

to-collectgueh s-.iúi, tIie; LJ1lploycc shall be responsible for all reasOJiab-a-oèys-fees--amL the Employer in GOlkdilJg sucli :suuis. -(7.2 costs of

12. CONFIDENTIALITY, NON-SOLICITATION AN RESTRICTIVE COVENANTS.

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12.1 CONFIDENTIALITY. (A) As used herein, the term "Confidential Information(g shall mean any and all non-public information. including, but not limited to all data, . compilations, programs, devices, strategies or methods concerning or related to (i) the financial
condition ofHeartIand's, results of operations. and amounts of compensation paid to offcers and
employees; (ii) the terms and conditions (including prices) of Heartland, and the current status of

sales and offers of sales of

Hearland's relationship

mortgage products and services of

with any customer, mortgage banker or investor; (ii) the tenns, conditions and curent status of Hearland's agreements and relationship with any customer, mortgage banker or investor of
Heartland;(iv) the identities and business preferences of Heartland's actual mortgage loan customers, mortgage bankers, investors or any employee or

and prospective with agent thereof

whom Heartland communicates; (v) the trade secrets market, market techniques, skills, ideas and

strategic plans possessed, developed. accumulated or acquired by Heartland; (vi) any communications between Heartland its offcers, directors, shareholders or employees, and any attorney retained by Heartland for any purpose or any person retained or employed by such attorney for the purpose of assisting such attorney in his or her representation of Heartland; (vii) any information given to Heartland or collected by Heartland which is protected by the GrarLeach-Bliey Act including but not limited to the private financial infonnation ofHeartland=s mortgage customers given to Heartland; (viii) any information in regard to those companies or the
entities which supply internet leads to Heartland or any contact with such companies by

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Employee; and (ix) any other manner or thing. whether or not recorded on any medium, (a) by which Heartland derives actual or potential economic value from such matter or thing being not generally known to other persons or entities who might obtain economic value from its disclosure or use, or (b) which gives Heartland an opportity to obtain an advantage over its competitors who do not know or use the same;

(B) Employee acknowledges and agrees that Heartland is engaged in a highly competitive money, and has invested. or will
business and has expended, or will expend. significant sums of invest a substantial amount of time to develop and use, and maintain the secrecy of

the

Confidential Iiformation. Heartland has thus obtained. or wil obtain a valuable economic asset which has enabled, or will enable, it to develop an extensive reputation and to establish longterm business relationships with its customers. If such Confidentia i Information were disclosed to another person or entity or used for the benefit of anyone other than Heartland, Hearland would suffer irreparable hann, loss and damage. Accordingly, Employee acknowledges and agrees that unless the Confidential Infonnation becomes publicly known through legitimate origins not involving an actor omission by Employee:
(i) the Confidential Infonnation is, and at all times hereafter shall remain, the sole
property of Heartland;

(ii) Employee shall use his best efforts and utmost diligence to guard and protect
the Confidential Infol11ation from disclosure to any competitor or customer of Heartland or any

other person, finn, corporation, or other entity;

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DEF 00527

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express written permission, during his employment and thereafter, Employee shall not use for his own benefit or divulge to any
(iii) unless Heartland gives Employee prior

Competitor or customer or any other person. firm, corporation. or other entity any of the

Confidential lnfomiation which Employee may obtain, learn about, develop or be entrusted with Employee's employment by Heartland; and as a result of

(C) Employee also acknowledges and agrees that all documentar and tangible Confidential Infol1nation including, without limitation, such Confidential Information as
Employee has committed to memory which is supplied or made available by Heartland to the

in performing his services under this Agreement is included in the definition of Confidential Information. Employee further agrees that after his employment with Hearland terminates for any reason:
Employee solely to assist him

(i) Employee shall not remove from Heartland propert, and shall immediately

return to Heartland, all documentary or tangible Confidential Information in his possession, custody or control and not make or keep any copies, notes, abstracts, summaries, tapes or other record of any type of Confidential Information; and

and all other Heartland
(ii) Employee shall immediately return to Hearland any

property in his possession, custody or control including, without limitation, any and all keys, security cards, passes, credit cards, and marketing literature.

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o 12.2 NON-SOLICIT A TION. (A) Employee agrees that he wil not, prior to the expiration two (2) years following the terminationmployee'Semployment tor any reason. withou-Itli°__.oo. or indirectly, or by action in concert with others, induce consent of Heartland in writing, directly
as an
or influence, or seek to induce or influence, any person who is engaged by Heartland employee. agent, independent contractor or otherwise, to teTIinate his/her/its employment

or

engagement, nor shall Employee directly or indirectly employ or engage or solicit for employment or engagement or advise or recommend to any other person or entity that such for employment or engagement any person or entity person or entity employ or engage or solicit employed or engaged by Heartland.
12.3 RESTRICTIVE COVENANT. During the period of

Employee's employment by

Heartland and for a period of one (1) year after such employment teTIinates for any reason whatsoever, Employee shall not, either directly or indirectly, on his own account, or as an employee, consultant, partner, joint venturer, owner, director or stockholder of any other person, firm, partnership, corporation or other entity or in any other capacity, in any way:

competitIvewith-BYe-ffll-ell~and-s-i-nes-si-tha twenty fiVe; (25) h1Ik radius of
any-Hearnd offce where Emplo)'8 worked; CJi-

(a) Goncle in or aid- Ul assii:l auyong i:r" l,OlIJUL,t of a businc.ss which is

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take away
(b) Solicit, diveit, take away or accept orders from or attempt to solicit, divert,

or accept orders from any person, firm, partnership, corporation or other entity for whom Hearlànd has performed any services or with whom Heartland has a vendor relationship within
the immediately preceding twelve (12) month period.

(c) Without limiting the prohibition set forth herein at 12.3(b), the Employee is prohibited from contacting or soliciting or of having any business relationship on his own behalf or on
behalf of any

new employer with. any company which provided internet leads to Hearland during the Employee=s employment. The Employee recognizes that Hearland has the period of and money in obtaining such internet lead compares as time, effort invested large amounts of

are used by Heartland and the Employee recognizes the value of such vendors to Hearland.
12.4 REMEDIES. Employee acknowledges and agrees that the business of Heartland is

highly competitive and that violation of any of the covenants provided for in Paragraphs 12.1,
12.2 and 12.3 of this Agreement would cause immediate immeasurable and irreparable har,

loss and damage to Heartland not adequately compensable by a monetar award. Accordingly
any
Employee agrees without limiting any of the other remedies available to Hearland that

violation of said covenants or any of them, may be enjoined or restrained by any court of competent jurisdiction, and that any temporary restraining order or emergency preliminar or final injunctions may be issued by any Court of competent jurisdiction without notice and the event any proceedings are commenced byHearland against Employ for any without boi1d. In actual or threatened violation of any of said covenants, Employee shall be liable to Heartland for,

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and shall pe)' te IIe.utli:md, all ceistG aflà eXl'enGes ef any ki~ including reasonable attomeys= fees, which Heartland may Ilcur II connection witñ sucl1e-ei:Ings. ------12.5 ENFORCEMENT. It is the desire of 12.1, 12.2 and 12.3 be enforced to the

Paragraphs fullest extent permissible under the laws and public
the parties that the provisions of

policies in each jurisdiction in which enforcement may be sought. Accordingly without limiting
the general applicability of Section 22(h) hereof if any paricular portion of Paragraphs 12.1, 12.2
or-12.3 shall be adjudicated as invalid or unenforceable or if

the application thereofto any par

or circumstance shall be adjudicated to be prohibited by or invalid under such applicable law, such Paragraphs shall be deemed amended to delete therefrom such portion so adjudicated, said said Paragraphs 12.1, 12.2 or 12.3 in the deletion to apply only with respect to the operation of

particular jurisdiction so adjudicating on the parties and under the circumstances as to which adjudicated and such Paragraphs shall only be amended to narow them to the minimum extent. required and the parties will be deemed to have substituted for such portion so deleted, words which give the maximum scope permitted under applicable law to Paragraphs 12.1, 12.2 and
12.3.

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12.6 A VOIDANCE OF CONFLICTS: It is the Employee=s responsibility to advise any this Agreement and in paricular the the existence of employers subsequent to Heartland of
provisions of this Section 12. To the extent the Employee violates the provisions of this

Agreement while employed by a subsequent employer with the full knowledge of such provisions of subsequent employer. the Employee shall be liable to the Employer pursuant to the
this Agreement and the subsequent employer shall be held responsible for damages suffered by the Emplover. the Emplover for any contract interference with customer=s of

13. RETUR OF RECORDS AND PROPERTY AN USE OF INTERNT
PASSWORDS: Upon termination of this Agreement, Employee shall immediately deliver

all

records, notes, data, memoranda and any equipment of any nature that are in EmpÍoyee's
possession, or iinder Employee's control and that are Heartland's propert or relate to Hearland's

business. Further, Employee, upon termination, shall not access any computer network or

Heartland internet site using previously authorized passwords.

14. BOOKS AND RECORDS: All records in regard to the Loan Applications shall at all
times remain the exclusive property ofHeart1and.
15. BENEFITS. Employee shall be eligible for all benefits allowed generally

to

of

employees of Heartland based upon the requirements for such benefits as directed by the Board Heartland or the vendor supplying such benefits. Directors of
16. LAPTOP COMPUTER; SOFTWARE:

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(a) In the event that Employer provides a laptop computér to Employee, Employee together with any softare owned by or licensed to and agrees that such computer, Employer and provided to Employee, shall at all times be and remain the exclusive property of Employer and shall be used only in connection with the conduct of Employer=s business and in
understands accordance with any

and all rules, policies, procedures and orders Employer may from time to

time adopt or give.
(b) Upon tenninationof Employee=s employment with Employer, any laptop computer

and/or software and related documentation owned by or licensed to Employer, including any copies thereof, shall be immediately returned to Employer. Employee fuher agrees that upon termination ofEmployee=s employment with Employer, Employer may withhold any and all compensation due or to become due Employee from Employer until any laptop computer,
softare and/or related documentation owned by or licensed to Employer, including any copies

thereof, are returned to Employer.

(c). In the event that Employee brings laptop computers or softare on to the premises of

the Employer, the Employer shall have no responsibility to safeguard such items and will not be responsible if such items are damaged or stolen.

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17. EMPLOYER WEBSITE AND INTERNET ACTNITIES: Duringthe term of Employee=s employment with Employer, Employer may make available to Employee space on
Employer=s corporate website and/or allow Employee use of mail(g) system. Employee=s use of any space on Employer=s corporate website,

Employer=s electronic mail (Ae-

and the content

thereof, shall at all times be and remain subject to Employer=s prior approvaL. Employer reserves the right to delete, remove, or modify any information or material that Employer, in its sole improper, inaccurate, or misleading in any way. Employee discretions, deems inappropriate, agrees that Employee shall abide by and fully comply with any and all rules, policies, procedures
and orders which Employer may from time to time adopt or give regarding Employer=s corporate

website and/or use ofEmployer=s e-mail system.

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18. POWER OF ATTORNEY. Employee hereby irrevocably appoints Employer, or any its authorized agents, as Employee=s attorney-in-fact to act for Employee and in Employer=s name (in any way Employee could act in person) with respect to the following powers: (a) to open and review any and all correspondence, envelopes or packages addressed to Employee and delivered via the United States Mail or other means to Employer=s offces, and to take for itself payment enclosed therein to which any currency, checks, drafts, money orders or other forms of
Employer is or maybe entitled; checks, drafts, money orders or other forms of (b) to deposit any currency and endorse and negotiate any payment made payable

and all

to Employee which are or

may be the property of Employer; and (c) to the extent permitted by applicable law and/or this Agreement to deduct and withhold from any compensation due or to become due Employee from
this Agreement or any Employer any and all sums owed to Employer by Employee under

other

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agreement, whether oral or written.

with

Employer, Employee wil maintain in effect

19. INSURANCE. Employee agrees that during the term ofEmployee=s employment and all motor vehicles used by on any
$300,000.00 in combined

Employee in the conduct ofEmployer=s business a minimum of

single-limit bodily injury/property damage liability insurance. Employee further agrees to defend, indemnify and hold Employer hannless from and against any and all claims against Employer for injuries or damages caused, or alleged to have been caused, by Employee while operating any Employee=semployment with Employer. Further, motor vehicle in the course and scope of
Empioyee shall notify Employer within 24 hours of any motor vehicle accident which occurred in
the course and scope of

against the Employee. '
20. RESOLUTION

Employee=s employment with Employer which could result in a claim

OF DISPUTES. Any dispute, claim or controversy by or between Employee and/or Employer arising out of or relating to this Agreement, including, but not limited to, any dispute, claim or controversy regarding any compensation alleged to be due Employee under this Agreement, shall be submitted to arbitration administered by the American Arbitration
Association (AAAA0i) in Chicago, Ilinois under its Commercial Arbitration Rules.

Notwithstanding anything contained herein to the contrary, in the event of any alleged breach by

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DEF 00531

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Employee of

the provisions of

Paragraph 12.1 (AConfidential and Propriety Informationté) or

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Paragraph 12.2 (ANon-Solicitation0i) or Paragraph 12.3 (Restrictive Covenant) orJ~.6

this Agreement, Employer shall have the option, in its sole discretion, of submitting anyc1aim alleging breach ofthose provisions to binding arbitration or, alternatively, filing suit against Employee in any court or competent jurisdiction. Likewise the remedy of Arbitration shall not apply to remedies available to the Employer pursuant to Section
(AAvoidance ofConflcts0i) of

12 herein.

21. INDEMNIFICATION: The Employee hereby indemnfies and sàves harless the Employer, its assigns and successors, against any and all loss, cost, damage, expose (including, without limiting the foregoing, reasonable attorney=s fees, court costs and other expenses), and liability whatsoever incurred by it in any manner arising from any assertion against the Employer of any fonner employer of the Employee.
Although the Employer is primarily responsible for any liability that may arise due to acts or omissions of the Employee occurrng within the scope of his

any

assistance to the Employer in the perfonnance of its regulated activities, the Employee agrees that the Employee wil indemnify and hold hannless the Employer for the consequences for certain actions by the
Employee which are in violation of law, amount to fraud or misrepresentation or similar actions
which would impose legal

liability on the Employer. Without limiting the foregoing, such

indemnification shall include any legal liability imposed on the Employer for the actions of Employee in originating or attempting to originate a mortgage in a

the
jursdiction in which the
of

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Employee is prohibited by this Agreement or by the licensure statute

the applicable state.

The Employee acknowledges for informational purposes that in the eventthe Employee participates in any fraudulentactivitv that legal JiabiJty for such fraudulent or
megal activity may not be dischargable pursuant to FederalBankruptcv protection laws.

22. MISCELLANEOUS PROVISIONS: (a) Amendment. Neither this Agreement nor any term hereof may be amended, waived or discharged orally, but only by instrument in writing
signed by the party against which enforcement of

the amendment, waiver or discharge is sought.

(b) Headings. The headings in this Agreement are for convenience or reference only and shall not define or limit the provisions hereof.
(c) Applicable Law. This Agreement shall be construed in accordance with and the state in which the designated offce as set forth on Rider B attached

governed by the laws of

hereto is located.

(d) Counterparts. This Agreement may be executed in several counterparts, each of
which shall constitute an original, but all of

which together shall constitute but one instrument.

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(e) Jurisdiction of Courts. Any judicial proceedings between the parties 'under this
Agreementshall be brought in the state in which the designated offce as set forth on Rider B attached hereto is located..
the terms, covenants and conditions herein contained shall
(f) Parties in Interest. All of

inure to the benefit of and be binding upon the parties hereto, their heirs, successors and assigns.

(g) Notices. Notices under this agreement shall be in writing and be personally delivered
or sent by certified or registered mail, return receipt requested, to the parties at their addresses

specified below or at such address as designated in writing to all pursuant to this paragraph. In

the event that the Employee changes his address he shall notify the Employer pursuant to the this paragraph. provisions of

this Agreement shall be
(h) Severability. Whenever possible, each provision of

interpreted in such manner as to be effective and valid under applicable law. If any provision of this Agreement, or any portion of any provision of this Agreement, is found to be unlawful or
invalid or otherwise unenforceable, such provision or portion thereof shall be ineffective only to

prohibition or invalidity, and the other provisions hereof, and the remaining portion of any such invalid or unenforceable provision, shall remain in full force and effect.
the extent of such

(i) Waiver. No waiver, or alleged waiver, by Employer of any term, condition or
provision of this Agreement shall be effective for any purpose whatsoever unless such waiver is

-- J-

in writing and signed by a duly

authorized offcer (a Vice President or higher) of Employer. Any waiver by Employer of any breaCirofthis-Agreemem-alhTOioperarore-constru-ed-as waiver of any subsequent breach.

(j Entire Àgreel1ent. This agreement is intended by the paries hereto as a final
expression of their agreement and understanding with respect to the subject matter hereof and as

a complete and exclusive statement of the terms thereof and supersedes any and all prior and contemporary agreements and understandings. the several sections ofthis Agreement are inserted (k) Section Headings The headings of for convenience of reference and are not a part of and are not intended to govern, limit or aid in the construction of any terni or provision thereof.

(I) Construction When necessary, the masculine shall include the feminine or neuter and the singular shall include the plural and vice versa.

(m) Assiimment (i) This Agreement is personal to the Employee and the Employee shall not sell, assign or otherwise transfer any of this rights and interest hereunder without the prior without prior wrtten consent written consent ofthe Employer. Any attempted assignent hereof
shall be void and of no force or effect.

Int. C lK

~

12

DEF 00533

Case 1:03-cv-02485-MSK-PAC

Document 367-6

Filed 03/07/2006

Page 14 of 21

)

(ii) The Employer shall have the right to assign this Agreement and all of

its

obligations hereunder to any person, finn or corporation to whom it sells or transfers a major portion of its assets.
(n) Liquidation Damages. In the event the Employee violates the provisions of Sec~ '

12.1 (A)(vii) relating to the privacy of customer financial information, the Emloyee shall pay ~
the Employer the sum of ten thousand ($ 1 0,000.00)

for injury to the Employer by reason of such
such breach, and such sum is agreed on as

breach, it being impossible to ascertain or estimate the entire or exact costs, damage, or injury
which the Employer may sustain by reason of compensation for the injury suffered by

the Employer and not as a penalty.

(0) Employee Authorization. The Employee authorizes the Employer, at its sole
reasonable discretion and subject to applicable law, to obtain a background check on the

Employee from time to time while this Agreement is in effect.

- )-

IN\¥ITl\fESS-WHEREU-p-fIe pafti es nave ex ecuteël-hts-Agreenien-t-as-oftlTe-date-firsr-- _. above written.
Employer

Bit;
Print

Heartland Home Finance, Inc.

Heartland Mortgage Company 140 I Branding Lane Downers Grove, Ilinois 60515

Employee's Social Security

By:
Assistant Vice President

Number:

5cJ tj- 6 l- -9.0.3 Sk:\lg\38093\emp loyment4.lo\3-25-03\3-3 1 -03\4-14-03\5-5-03

~

13

DEF 00534

Case 1:03-cv-02485-MSK-PAC

Document 367-6

Filed 03/07/2006

Page 15 of 21

Rider A

~
Arizona

Licenses of Heartland as of _June _, 2003

State Banking Depaitment First & Second Mortgage License #

Gilbert Branch Lic # BK-09043 17 Middleburg LIc # BKBR-0103721 Downers Lic # BKBR-0103722 Kansas City LIc # BKBR-OI 04023 Lansing, MlLic#BKBR-0104698 St. Louis, MO Lic #BKBR-0104699 Aurora, CO Lic #BKBR-0103907 Independence, MO Lic# BKBR-0105541

Colorado
State of Colorado Deparment of Law
Mortgage License # Downers Grove Lic#09843I Middleburg Lic #098431-001 Aurora, CO Lic #098431-002

Connecticut
~__£tate_Qf-CQnn.eGii-G-u-t

First Mortgage License
Dowi:-eFSGr-O¥~Li-G-ÐgS-1

Department of Banking Consumer Credit Division

Middleburg Lic # 10217 Marlborough, MA Lic # i i 171 Second Mortgage License Downers Grove Lic #7108 Middleburg Lic # 10218 Marlborough, MA Lie # 11172

Delaware
Office of

the State Bank Commissioner

First/Second Mortgage License Downers Grove, IL Lic #143875 Hanover, MD Lic # 143877
Middleburg Hts Lic # 143876

Geon?:ia
Department of

Banking and Finance Mortgage Division

First/Second Mortgage Lic # 12179

Indiana

J

State of Indiana Securities Division

First Mortgage License # 7319 Second Mortgage LIc # 95-0094LB

DEF 00535

Case 1:03-cv-02485-MSK-PAC

Document 367-6

Filed 03/07/2006

Page 16 of 21

)

Iowa
State of Iowa
Iowa Division of

First/Second Mortgage Lic # 640
Banking

Kansas
the State Bank Commissioner Division of Consuil:ier & Mortgage Lending
Office of

First & Second Mortgage Downers Lic #1998-3744 St. Louis Lic #1998-3744-04 Middleburg #1998-3744-03 Aurora Lic #1998-3744-05 Overland Lic #1998-3744-06 Independence Lic # 1998-3744-10 Brentwood, TN Lic# 1998-3744-07 Pittsburgh, PA Lic # 1998-3744-08 Atlanta, GA Lic # 1998-3744-09

Ken tu ckv

Department of Financial Institutions

First & Second Mortgage 1025

Lic # 734 &739

Marvland
Department of Labor, Licensing and Regulation

First & Second Mortgage Downers Lic # 6691
H.ano:v-er-LIc-#-7-842-

~J
Massachusetts
Division of

Indianapolis #7603 Middleburg # 7602

Banks and Loan Agencies

First & Second Mortgage Downers Lic # MC1 738 Middleburg Lic #MC1886 Fairbom,OH Lic #MC2188 Hanover, MD Lic #MC2 1 61 Marlborough,MA #MC2148 Milford,CT #MC3029

Michi2an Division of Financial Institutions

First Mortgage LIc # L-0619 Second Lic # SR-0261

Minnesota State of Minnesota Deparment of Commerce

First Mortgage
Downers Lic # MO 20229291

)
nEF 00536

Case 1:03-cv-02485-MSK-PAC

Document 367-6

Filed 03/07/2006

Page 17 of 21

Missouri

.j

Division of Finance

First & Second Mortgage St. Louis Lic # 99-344 Independence, MO #01-344.1

New Hampshil'e New Hampshire State of
Baning Department

First Mortgage License Downers Grove LIc # 9067.:MBB Middleburg Lic # 9069-MBB-BCH Marlborough Lic # 9068-:MB-BCH

New Mexico New Mexico State of Regulation and Licensing Department

First & Second Mortgage Downers Lic # 00994

Ohio Ohio Department of Commerce
Division of

Financial Institutions

First Mortgage Springdale Lic #MB817 Middleburg LIc #MB530 . Fairborn Lic # MB909 Worthington Lic #MB4800

-- .j

8eeend-Merlagc
Springdale SM7649 Fairborn SM7650

Middleburg SM7645

Pennsvlvania Commonwealth of Pennsylvania Department of Banking

First Mortgage Lic
Green Tree Lic # 1517

Grand Rapids Lic #1517.001
Lansing LIc # 1517.002

Downers Lic#1517.006

Middleburg Lic #1517.003 Southfield Lic #1517.004 Southfield Lic #1517.005
Second Mortgage Lic
GreenTree Lic #1833

Grand Rapids Lic #1833.001

Lansing Lic #l833.002 Downers Lic # 1833.006
Middleburg Lic #1833.003

.j

Southfield LIc #1833.004 Southfield Lic #1833.005

DEF00537

Case 1:03-cv-02485-MSK-PAC

Document 367-6

Filed 03/07/2006

Page 18 of 21

Rhode Island

~.

State of Rhode Island

Department of Business Regulation

First & Second Mortgage Downers Lic # 20001195 LL Downers Lic # 20001196 LB
Middleburg, OH Lic#20001 1

96LB BOI

Springdale, OH Lic #20001 196LB B02
Marlborough, MA LIc #20001 196LB B03

Tennessee Department of Financial Institutions

First & Second Mortgage
Downers Grove Lie

Lic #0000000300 ' Brentwood 300
Vin!ÎDia
Commonwealth of

Virginia

First & Second Mortgage
Middleburg MLB-557 St. Louis MLB-557

Downers GroveMLB-557
Hanover,MD MLB-557

Cherr Hil, NJ MLB-557
Wasbin2:ton

~-£--aeL-Wa-shi-ngteR
. Department of

B-x.empl-fr-em-l-eeRsing

Financial Institutions

Wisconsin State of Wisconsin Department of Financial Institutions

Mortgage Banker
151 & 2nd Mortgages

Lic # 1206

Heartland Mortgage Company
nUn ois
Offce of

Banks and Real Estate

First & Second Mortgages License # 0814
Date Issued 5/1/03
Expiration 4/30/05

'J

DEF 00538

Case 1:03-cv-02485-MSK-PAC

Document 367-6

Filed 03/07/2006

Page 19 of 21

Schedule A

,J

Loan Offcer Compensation

For all services rendered by the Employee under this Agreement, the Employer shall pay the residential and commercial financing obtained for clients Employee a commission upon funding of generated by the Employee based on the following commission schedule:

Heartland Lead
HMB# Conforming
HMB# Non-Conf.
35%*

Employee Generated Lead

47%*

40%**

52%**

Brokered

30%*

42%*

* % commission paid on applicable fees less the processing fee ** % commission paid on applicable fees including the processing fee # any loan in which Heartland acts as the Lender

--.J

disbursement of

Th~GQi:1-r--i-s-s'¡Q-i~-iileFl-eaGh-I-ean-shaU-pay-aÐle-eH-the-fir-s-t-flay-day-foI-owing-the-... .. the funds on said loan, provided, however, that any funds disbursed two or less days

prior to said payday shall be payable on the second payday following disbursement.
In addition to the above the Employee wil receive a

semi-monthly draw of$500.00 against

commissions, so that at no time shall an Employee be paid less than gross wages of$500.00 during
any two week pay period.

~
C y:::."

DEF 00539

Case 1:03-cv-02485-MSK-PAC

Document 367-6

Filed 03/07/2006

Page 20 of 21

Schedule B

~

Senior Loan Officer Compensation

For all services rendered by the Employee under this Agreement, the Employer shall pay the Employee a commission upon funding of residential and commercial financing obtained for clients generated by the Employee based on the following commission schedule:
Heartland Lead
HMB# ConfonTIing
HMB Non-Conf.
35%*

Employee Generated Lead
55%*

40%**

60%**

Brokered

30%*

50%*

. % commission paid on applicable fees less the processing fee . ** % commission paid on applicable fees including the processing fee
. # any loan in which Heartland acts as the lender

- .J

Bonus 011 House Leads (net fees on house leads only)

0-10,000 10,000:'15,000 15,000 +

x x x

0% 10% 20%

The commissions paid on each loan shall be payable on the fist pay day following the the funds on said loan, provided, however, that any fungs disbursed two or disbursement of less days prior to said payday shall be payable on the second payday following disbursement.

In addition to the above the Employee wil receive a semi-monthly draw of$500.00
against commission, so

that at no time shall an Employee be paid less than gross wages of$500.00

during any two week pay period.

..

C/
DEF 00540

Case 1:03-cv-02485-MSK-PAC 10/21/2002 12: 16 FA!

HEARTLA 367-6 DocumentHOME FINANCE 03/07/2006 Filed

1ß uua/uua Page 21 of 21

Heartlsd Borne Finance, lne.

r'J
co

SENIOR LOAN OFFICER

MlENSA nON SCHDULE

Employee: TIe: SENIOR LOAN OFFICER

Date: 3Q.l-- Q.ô3

llujr~menù lot' Se~lorLoiin om~r:

. Demonst leaerd sklls . Abilit to promote and close loas wi Heartd MoJt0 Bag
. Mium of one ye employmen wi Heaand per mon
more fees . Cosistly acheves $15,000 or

ÇQrnissiQD5 on Loanii doiied bY Seipr Lom offcer:

the schedule in As a SooiQr Lo Offot'r. you wi be paid on the Senor Lo Ofce commsionnet broker fee of
eff from ti to tie. Ths cois$Ïon is calcul usi vnous percentges coiiec on the toa dependig on the sour of

the lead (personal refom or Company) and wheter 1he

the loa is brokeroo or made though Hßld Mortgage Bag. Net broker fes are defied as gross fee
less cost of cre reort, äpprals, procsing fees :md oter miscelleous dict e"Penes of

mortge loa paid bytbe company.

l. from COmPany 1teMJltO leads:
. 30% ornet føe $ 0 to $10,000
. 40% of

~~ )(+10/ _...~
:: )( 20 j.

net fee S10,001 to $15,000

-~

~

. 50% of

net fees over $15,000

:; /502~
loa
of

Los frm self-l!enerd luds:
. 50% ofnet fe on

aU self gener. leads

. Loan from 8&lf-generaod referr are not included in caicuatg commsjons on

from Company generate leads.
net fee
HM BOllm on al loan close through HeArtand Mortgage Bnnkig (l): 10%

$16,000 ($13.000 Compsny
EXLE: Senor Lo Of~r closes loas prodoing net fe of genera leads and $3,000 self generated leads) of Self genera leads S 3,000

which $12,000 net fees closed though HM.

net fees X 50% = $1,500
S10,000 net fe X 30% =
$ 3,000 net fee5 X 40% ..
S12,000 net fees X 10%=$3,000
S 1,200

Company genenileads:

Lo closed though HM
Total Commissions

nJ

S6~OO

BeJland re.-~ the riht to tsabJiiih nefV monthly goll from tie to ti~ which may be higher than yout initial month go-l JUdlor to change the percep~ge paid on commssions on loan and

HM bonus.

J ~:~::~ø ~

Empioyee:

Heiuand Bome FinaDce, Ine.
By:

Namerriue:

HH-Senior lian Offcer compensaton 1/26/2000

DEF 00541