Free Response to Motion - District Court of Colorado - Colorado

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

Document 345-46

Filed 02/16/2006

Page 1 of 21

EXHIBIT J

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

Document 345-46

Filed 02/16/2006

Page 2 of 21

EMPLOYMNT AGREEM

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TIiis Agreement (the "Agreement") estblishing an employment relationsp is betee

Hearand Mortgage Company and\or Hearland Home Finance, Inc. (hereinafer collectively

refer to as "Hearand" or "Employet') and N ir ,+- lL",lz,ur (the
"Employee"), is dated as of

ths i day of j \A i y , 20.a.

WHAS, Heaand is a licened residential mortgage origion company in varous
sta as fully disclosed On Rider A attched hereto and maita a corporae offce at 1401 Brag Lae, Suite 300, Downers Grove, II 60515 (the ''Home Offèe"); and
WHREAS, it is the intention of related to ths Agreement workig out of

the pares th the Employee is to perorm al seces the Healad offce designted on Ridè B athed

hereo and may only originae residential mortgage loan in those sttes lite on Rider B

ated hereto; an

resdential WHREAS, Employee ha experience and knowledge in the origition of mortgages or desires to gain expeence in the origition of redeal mortgages and once emloyed will be resonsible for assisg Heaand in origiti resdential morgage loan;
and

WHEREAS, Heaand seeks to retai the Emloyee for the pmpse of assistg

Healand in the perormance of the origiation of residential mortge loans (herèi

.

.._ - ___ --..refemed-t~~$d-----_._.- - --_._ _... - - ,_, -_., .1 --.-----.-----.--. -_._._-- ,__. __,_
WHER, Employee is willng to make its serces available to Heaand for the
purose of asstig Healand in the origination of reidential mortgage loan;
NOW, THERFORE, in consideration of

the mutul covents, herin contaed, the

suffciency of which is acknowledge, it is agred as follows:

1. EMPLOYM AND ACCEPTANCE OF EMPLOYM: Heaand heby
employs the Employee and the Employee hereby accets emploYment upon the tes and
conditions hereinaft set fort.

2. AT WI EMPWYMNT: Subject to aplicable law in the stae or stes in which .
ths Agement wil be penormed, Employee understds and ag tht Employee=s emloyment by Employer sha be at al ties Aa willc¡ employment. Employe resees the
right to teÎnate Employee=s employment with Employer at any tie for any reaon whatver, with or Without cause. Liewise, Employe may reign Employe""s emloyment

wi Employer at any time for any reason.

3. RERESENTATIONS AND WARIES OF EMPLOYEE: (a). (i) Employee
reresents that he will perform his duties pursuat to ths Agreement as govered by applicable
sta and federal law and wil assist onlv Hearland in the penormance of

mortgage loan

Int. %K

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DEF 12893

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

Document 345-46

Filed 02/16/2006

Page 3 of 21

origition activities. (ii) Employee represents that Empl.oyee shal have no authority to bind

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Employer to the payment of any money or the doing of any act or thg, .or incur any debt,

obligation, liability or expene for which Employer is or may becme liable without fist
obtag the wrtten consent of Em pI eyer. In the absence ofEmploye=s prior wrtten c.onsent, any debt, obligation, liability .or expense incured by Employee shall be the sole responsibilty of

Employee, and Employer shall have no liabilty fer or obligation to Employee regarg such

debt, obligation, liabilty or expense.
(b). The Emp loyee acknowledges that he has been inrmed that the Empl.oye strctly
forbids the solicitation of any customers whose loan applications were pendig at the tie of teration of

the

the Employee frm any previous employment, either as any employee or

independent contrtor, for the purose of switchig these loan frm the pre.oUS employe to
the Employer. The Employee represents that he shall not solicit any custoer whose loan
applicati.ons were pendig at the tie of

termintion of any previous empl.oyment either as any

empleyee or independent contracter, for the purose of switchig these loan frm the previous
emloyer to the Empleyer. The Employee fuer represents tht he has not taen any wrtt
records and c.omputer disks which ar the propert of any preveus employer and shal not use

any such written records or computer disks to selicit any loan applicants nor sha he USe any
mateal subject t.o applicable copyright protection for any purose related to his employment by

the Employer.

(c). The Employee represents that as of the date of ths Ageeent the Employe is not

---------litt:1iUlS iiiiu this A:greentiiometthviplcrer, (ii) ory--------

bound by (i) any contrctual obligation to a previous Employer that would restrct the Employe

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ether centractual agrent relating te any full or par time employment.

(d). The Employee represents and warnts tht his employment with Heaand is and
will be exclusive, and the Empleyee shall not have (i) other ful or par tie empl.oyment; or (ii)
perm any residential m.ortgage .origination activities for any

other company licened purt

oth entity tht is re to beme licesed under applicable state law büt ba not beme so licen.
to applicable state law .or any other entity exempt frm licen and/or any (e). The Employee agr to safeguar and kee sere frm other

Healand employee

his computer password and user nane, designated Heaand In.ormation Technology personnel

excete.
Employe is (t). .In regard to any applicable state licenng requiments to which the. subject, (i) the Employee wil advise Healan (in wrtig withn 10 days) when he is lice or when his license stat changes or ifa licene is dened or if a license is reoked (ii) the Emloye will advise the licensig authority (in writig withn 19 days with a copy to Heaand) whe he chages Employment to Healad .or frm Healan to another emloyer.

Int. '1
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DEF 12892

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

Document 345-46

Filed 02/16/2006

Page 4 of 21

(g). The Employee fuer represents to Heaand that he underds that it is the

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Employee=s responsibilty to obtain applicable licenes and to keep suh Iiceiies clDnt and in

good stading and to fulfill any applièable state contiuig education reuients. The
Employee acknowledges tht he shall not be dependi on Healand in rega to any

inormation or requirement as to the Employee=s licenes.
4. TERM OF AGREEMENT: Subjeèt to applicale law in the jursdcton in which ths
contrt will be performed, this Agrment shl reai in effect for a perod of months from the date of

twelve (12)

ths Agrment, uness terinted in acèOrdce with the tetion

prvisions hereinafer set fort. !fnot terinted with such twelve (12) month perod, ths Agreeent shal renew for additional periods ot30 days uness teted in accordace with the

teaton provisions herer set fort.
S. TERMATION: (a) This Agreement may be ternated:
(i) by mutal wrtten agreement of

the pares;

(ii) by either pa without caUse upon wrtt notice;
(iü) by the Employer imedately with caus, upon a matal brh of any ter of

ths
the Employee to orgite

Agrement;

._- -----.~Iitlaimoiage.Ii_astti:drrwliic.i Enl'lu~~B--~--- _..
(iv) by the Employer imedately upon the disqualcation of

athed hereto;

. (v) by the Employer imedately if

the Employee has commtted an act in violaton of the law; or has knowingly submitted false inormation on a loan application; or knowigly

submtt an apprasal with knowledge th it fally desbe th prper or its value; or ha sumitt false or misleaing underwti docuientaon in rear to a mortga loan to the
Einploye or an investor to whom the Employe origi mortga lOBUs; or ha br the
fcrm otthis Agrment; or has violated the

EnloyS policies and pr; or ha

ored a loan in a state not allowed to the Employe (as lite on Ride B áthed her); al as deter by the Employer, in its sole dicron;

(vi) inedately upon the Employee=s dea;
(vii) by the Employer in the event tht the Employee ha a peranent disailty th maes it impossible for the Employee to perform the essential fuctiOIl of the job even with
renable acèOmodaton.

Jnt. f4
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DEF 12894

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

Document 345-46

Filed 02/16/2006

Page 5 of 21

Upon such termination Hearlan shall continue to process all mortgage loan applications tacn

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by thc Employee for Healand thugh the date of such termtion.

the dae of (b) Upon a termination without cause, any loan tht fuds with 15 days of such terination shäl1 eam the Employee a fu commssion as set fort herein. Af suh 15 day perod and contiuing thugh the 30th day frm such termation, the commssion normly
paid to the Employee will be reduced by one half. Afer such period no fuer compenation

will be paid to the Employee. Durg such pcriod af termtion the Employee sh not be
paid for a loan application taken on behaf of the Employe prior to teron in the event that
the Employee solièits the Sane customer for a new loan for a new employer of

the Emloyee.

(c) Subject to applicable law, in the event of a tertion with cause due to fr in the

origition of a residential mortgage, or misappropriation of client monies the Employe sha be
pad only for loans which have closed prior to or on the date of such teron with caue.
6. EMLOYE=S DUlæs: The Employee agrs to actively

engage öi a full tie

bas in the origination of mortgage loa to the gen pulic and to assist in the pressing of

eah loan aplication he originates. The Employee fuer ag to mata èUen rerd of
aU aplications in complianòe with aplicable ste and feder law, to mata loa files in
compliance with the polièÍcs and prèedur set fo by the Employe, to follw al policies and

prcedur set fort by the Employe, not to make any represetaon or commtmen on beha
of th Employe, and at all ties, to uphold the good nae àJd reutaon of adtion the Employe shl purant to the policies an procedurs of

the Employer. In the Employer:

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a. Arnge and/or attend closing of said Loan; and
b. Collect all monies due and owig to Heaand as a reult of eah LoàJ

trsaction.
c. Take all Loan applications in the nae of Heaan and on behal of

Heaand.
d. Remain current in issues relating to morgage originaons and invesor
reuiments and to coply with al applicable stte licens reuients and contiui
edcation requireents of

those states in which ths Agrment will bepenormed.

e. Comply with all policies and procedur of the Emloyer whch relate to the
verfication of

hours worked and pre-approved overe hour.

Int..,'vi

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DEF 12895

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

Document 345-46

Filed 02/16/2006

Page 6 of 21

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7. DEPOSIT OF FUS: All fuds received by the Employee puruat to ths Agrent, such as application deposits for apprsal fees or credt reort, sh be made payable to Healand and shall be imedatly given to Healand to be deposite to Heaand's
ban acount with documentation as to the soure, use and dispsition of said fuds for
eah Borrwer.

8. COMPENSATION TO P ARTæs: Heaand agrees to mae payments to the
Employe in accordance with Schedule A attched hereto and incotporaed by referce into ths

Agrment.
9. ADVETIING: Any adversing by Employe sha be pre-approved by Healad
prior to its use. Adversing shl be deeed to include, but sh not be limted to, adverseents in newspaper magazines, other perodicals, rao spots ma pieces, busess

eas, et. Heartand shal either approve or rejeèt said adversig in a tiely maner. Al suh
adveg shall be on behalf of

Hearand and sha comply with appIicàble law and stte

licensig reuirements. To th extent any pro-approved advering piece is died individuay
to the Employee, such Employee shal be reonsible for al cost and chares associate with

such adversing and shal at the tie of a reuet for approval demonste to Heaan tht
such adversing has been paid in full.

10. DELY OF DOCUATION: Emloyee agr that upon enteg into a
Agrent with a Borwer (i.c. a Customer Agreeent) the Employe sh imedatly inorm
Heaan in Wrtig and supply Heaand With a copy. Emloye fuer agree tbt al -.- ---'---'1lnet.daoreae-lslHie dclvçreo th oflec-t-of-whieh-te--"--- --Employee work in a timely maner. Hearand shl maita sad fies in such offce and such
files shall be made available for review by Employe durg normal business hour.

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-F""I~yc fitRll wst o£si'cl~legri-e.Wuol ~ig i" "" diimiltd tJí he is.1l8Biilll&f fW i'im~tl Rmer e-~()eaoru... 1"''' imd(í",¡..ý of ~ A¡.x"h.it
..ning'l8st ii sêt fo. th uti RIr C. Suelltmir..iatélY ilno.~blc .-o Iì~F'nY" "pnn written det1 li eVent"usi:galro to coU-t "",.h ""m. th.. P-pIyee 9h..l be telDor~5teei:im
cest of Ill", Bllllr:r In i:illteil"g "u..~
COVEANS.
12. CONFIDEN, NON-SOLICITATION AN RETRCTE

..l....t..il tn -Qei';è lllal ~-tmpl&y.t 1ìmpioy..~buo.

11. RE1MBURBM IT FOR 'fRA atKl CGSTS. Ii th event-th1heioy

Int. ~

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DEF 12896

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

Document 345-46

Filed 02/16/2006

Page 7 of 21

12.1 CONFIDENIAITY. (A) As us herei, the ter "Confdential Inonntioniw
shl mea any and all non-public infonnation. including, but not lited to al data,
.a compilatons, programs, devices, strategies or metods concerg or relate to (i) the fiancial _ condition of Hearland's, results of operaons. and amounts of compenstion paid to offce and

emloyee; (ii) the terms and conditions (including prices) of sales and offers of sales of Hearand's relatonship Hearland, and the curnt statu of mortgage products and serces of
with any customer, mortgage baner or investor; (ii) the ter, conditions and curt sttus of

Healand's agreements and relationship with any customer; mortgage baner or investor of

Healand; (iv) the identities and business preferences of Head's actu and prospective
mortgae loan customers, mortgage baners, investors or any employee or agent therfwith

whom Healand communcates; (v) the tre secrets maet, maket technques, sklls, ideas and

strtegic plan possesed, developed. acumulate or acuied by Heaand; (vi) any

communcaons betwee Healand its offcers, ditors, shholde or employe, and any
attrney retned by Hearland for any purose or any peron retaed or employed by such

atorney for the purpose of assisting such attrney in his or he rerentation of Healan; (vii)

any inoration given to Heaand or collected by Heaan wbièh is prtecte by the GrLecb-Bliey Aèt including but not limited to the privat ficial inormaton ofHealad=s

morge customer given to Healand; (vii) any inormon in regä to those companes or
entities whieh suly intert leas to Hearland or any contat with suèh companes by the

Emloye; and (ix) any other maner or thg. whether or not reed on any medum, (a) by
which Healand deves actual or potetial economic value frm sUèh mattr or thg bei not

...--..-----implunutknw-e- the SaIne. .. .. - -, - .. - -. ----.- .. -- -- - ------

generally knwn to other pens or entities who might obta ecnomic value frm its dilösur or use, or (b) which gives Hearand an oprtty to obta an advantae over its

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(B) Employee acknowledges and agree that Head is enged in a high compettive
business and has expended, or wil expend. signficat sus of inves a substtial amount of

money, and has invested or will the Confdential Inormation. Heaand has thus obtaned. or will obta a valuable ecnomic aset
tie to develop and use, and maita the secrey of

which bas enabled, or Will enble, it to develop an exteve reutation lld to esbli long-

te busiess relatonships with its customerS. If such Confdentii Inon wer dilosed
to anther peron or entity or used for the beefit of anyone oth th Healld, Heaan
wo1i suer ircparle har loss and daage. Accrdgly, Employee acknowledes and

agrees that unless the Confdential hûormation becmes publicly known thugh legitiate
origi not involving an act or omission by Employee:

(i) the Confdential Inormation is, and at all ties hereaer sh re the sole
proer of Hearlad;

(ii) Employee sha use hi best effort and utmost diligence to gu and protec

the Confdential Informaton frm diclosue to any compettor or customer of Heaand or any

otr persn, tim, cotpòraton, or other entitý; . í AI 1/

. Int. v, "'

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DEF 12897

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

Document 345-46

Filed 02/16/2006

Page 8 of 21

(ii) unless Healand gives Employe prior expres wrtten perssion, durg his

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employment and thereafer, Employee shal not use for hi own benefit or divuge to any
Competitor or customer or any other persn. fi, corpraon. or other entity any.ofthe

Confdential Information which Employee may obtai, lear about, deelop or be entrted with
as a result of

Employee's employment by Healand; and

(C) Employee also acknowledges and agres that all documenta and tagible Confdential Information including, without limtation, such Confdential Inrmaton as
Employee has commtted to memory which is supplied or made avaiable by Heard to the

Employee solely to assist him in performg his serces under ths Agent is included in the

defition of Confidential Information. Employe fuer agr tht after his employment with Healand terates for any reon:
(i) Employee shall not remove frm Hearand proer, and sh imedately retu to Heaand, all documentar or table Confdential Inormtion in his possession,
custody or cotrol and not make or kee úny oopies, note, abstts, sues, taes or other

rerd of any tye of Condential Inormtion; and

(ii) Emplo:ree shall immedately retu to Heaan an and all other Heaand prpe in his possession, cuody or contrl including, withut limtaon, any and al key,

secty cars, passes, credit èar, an marketig litertu.
12.2 NON-SOLICITATION. (A) Employe ag tht he will not, prior

.,-..- '._.'---'-uftw0")-ealuwiIIg tlibkuliuatoii ofEniplmployent foroiout th
conset of Healand in wrting, directly or indiectly, or by action in cocer with other, induce
.. or inuence, or seek to induce or influence, any person who is engaged by Hearand as an

to the exirtion

.. employe. agent, inependent contrtor or otherse, to tee hier/its emloyment or
engement, nor shall Employee diretly

or indiretly employ or engage or solicit for

employient or engagement or advise or remnend to any other peron or enty tht such

peron or entity employ or engage or solicit for eiloyien or engagement any pern or entity

emplöd or engage by Hearand.
12.3 RESTRCT COVEAN. D~ the perod of

Emloyee's emloymen by

Head and for a period of one (1) yea aft such employment tees for any reon

whatever, Employe shal not, either directly or indiectly, on hi own acount, or as an employe, consultat, parer, joint ventuer, owner, dièèr or stckhoider of any other pen,
fi, parership, corpration or other entity or in any

other capacity, in any way:

(a) Coduct, engge in or aid or assist anyone in the conduct of a busiess whch is

competitive With any porton of the Heaand=s busines with a twenty five (25) mile raus of
any Hearand offce wher Employee worked;

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DEF 12898

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

Document 345-46

Filed 02/16/2006

Page 9 of 21

(b) Solicit, diver, take away or accept order frm or attempt to solicit, divert take away

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or accept order from any person, firm, parership, corporation or other entity for whom
Heaand has performed any servces or with whom Hearand ha a vendor relaonsp with
the imediately preeding twelve (12) month perod.

(c) Without limiting the prohibition set fort herein at 12.3(b), the Employee is prohibited from contacting or soliciting or of havig any business relatonsp on hi own behalf or on
beh of any new employer with any company which provided inteet lead to Healad durng
the perod of

the Employee=s employment. The Employee reèogi th Heaan ha

tie, effort and money in obtag such interet lead companes as ar used by Hearand and the Employee recognze the value of such vendors to Healan.
invesed large amounts of

12.4 REDæs. Employee açknowledges and agres that the business of Healand is
highy competitive and that violation of any of the covenats provided for in Parphs 12.1,
12.2 and 12.3 of

ths Agreement would cause iiedate imeaàble an irarle ha,
the other reedes available'

loss an damage to Heaand not adequately compenable by a monet awar Aècordigly
Employee agres without limting any of

to Hearand th any

violaton of said covenants or any of them, may be enjoined or retred by any cour of

compet jurisdction, an th any tempora resaig order or emergency preli or
fial inuntions may be issued by any Cour of competent jursdicton without notice an

Without bond. In the event any proceedings ar comienèè by Heaand ag Employ for any

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-- --'- --reewhi'H-earitûiáyili\;w il (;uili:tIun witJS\cees. -------- ----, -- - _____n Pargrhs
12.5 ENFORCEMEN. It is the desire of the pares that the provision of

actual or thtened violation of any of sad covents, Emloye shll be liable to Head for, an shl pay to Healand. all cost and expenes of any kid. includ reonable atmey=

12.1, 12.2 and 12.3 be enforced to the fullest extent perssible under the laws and public
policies in each jursdiètion in which enforcement may be sought. Accrdgly without litig
the gener applicability of Section 22(h) herf if any parcul porton of or 12.3 shall be adjudicaed as invald or unforcle or üth aplication thf

Parhs 12.1, 12.2

to any par or ciruøstance sha be adjudicated to be prohibite by or invald uner such applicable la,
such Paraphs shall be deemed amended to delet thfrm such poron so adjudca sad
deetion to apply only with reect to the operaon of

sad Parhs 12.1, 12.2 or 12.3 in the

paèu1ar jursdicton so adjudicatig on the pares and uner the cirumce as to which adjudicatd and such Pargrhs shal only be mended to naow them to the milD extent. reuired and the pàes will be deemed to have substtute for SU porton so deleted word
which give the rniii sèope pertted under applicable law to Pargrhs 12.1, 12.2 and

12.3.

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DEF 12899

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

Document 345-46

Filed 02/16/2006

Page 10 of 21

12.6 AVOIDANCE OF CONFLICTS: It is the Employee=s responsibility to advise any

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employers subsequent to Hearland of provisions of

the existence of

ths Agreement and in parcu the
ths

this Section 12. To the extent the EmDlovee violates the Drovisions of

Agreeent while emDloyed bv a subsequent emDlover with the ful knowledir of such subseauent emDlover. the EmDlove shall be liable to the Emi:lover Dursut to the Drovisions of
ths Agreement and the subseauent emDlover shal be held reStnsble for daaiies suered bv

the Emnlover for anv contract interfernce with customer=softhe EmDlove.

13. RETU OF RECORDS AN PROPERTY AN USE OF INT
PASSWORDS: Upon terination of

ths Agreeent, Employee sb imedately deliver al

rerds, notes, data memoranda and any equipment of any nae that are in Employe's
possesson, or under Employee's control and tht ar Heaand's proper or relate to Heaand's

buses. Furer, Employe, upon teration, shal not accss any computer netork or

Heaan internet site using preiously authorize pasord.
14. BOOKS AN RECORDS: All records in regar to the Loan Applications shl at al
ties remai the exclusive proper of

Hearand.

15. BENS. Employee shall be eligible for al benefits alowed generly to
emloyees of Hearand baSed upon the reuiments for suh beneDts as dite by the Boar
ofDirtör of

Hearlan or th vendor suplyig such beefits.

16. LAPP COMPUTR; SOFTAR:

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(a) hi the event that Employer provides a laptop computér to Employee, Employee
underds and agres that such computer, together with any softar owned by

or liceed to

Employer and provided to Employee, shall at al ties be and remai the exclusive proper of

Employe and shal be us only in connection with the conduèt ofEniloye=$ busess and in aèrdèe with any and all rules, policies, proedures and order Employe may frm tie to
tie adopt or give.

(b) Upon termination ofEmploye=s emloymen with Employe, any laptop computer
anor soft an related documentation owned by or licen to Emloyer, includ any
copes thereof, shall be immediately retued to Employer. Employee fuer agr tht upon

teaton of Emloye=s employent with Employer, Employer may withold any and al
compensaon due or to become due Employe frm Employe until any laptop computer,
softe anor related documentation owned by or licened to Emloye, includg any copies
therf, are retumed to Employe.

(c). In the event that Employee brigs laptop compute or softar on to the prese of
the Employe, the Employe shll have no rensbilty to safegua such ites an wi not be

rensible if such items ar damaged or stlen. , .r
Int. VI IT"-

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DEF 12900

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

Document 345-46

Filed 02/16/2006

Page 11 of 21

17. EMPLOYER WEBSITE AN INTERNT ACTIES: Dug the ter of

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Employee=s employment with Employer, Employer may mae available to Employe space on
Employer=s corporate website and/or allow Employee use ofEmployero=s elecnic mlÛl (Ae

mallê) sytem. Employee=s use of any spac OD Employer=s corporate website, and the contet
therf, sb at all ties be and reai subject to Employer=s prior approval. Employe reeres

the right to delete, remove, or modifY any inormon or maal that Emloye, in its sole
discrons, deems inpprpriate, improper, inurte, or misleadg in any way. Emloyee

agr that Employee shal abide by and fully comply with any and al rues, policies, prcedures
and orders which Employer may frm tie to tie adopt or give regadig Employer=s corporae

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

i 8. POWER OF A TIORNY. Employee herby irocably appints Employe, or any
of

its authorizëd agents, as Employee=s attorney-in-fac to ac for Employee and in Employer""s

nae (in any way Employee could act in persn) with respect to the followig power: (a) to open and review an and al corrspondence, envelopes or packaes adesed to Emloye and delivered via th United States Mail or other mea to Bmployeo=s offces, and to tae for itself any cuncy, checks, draf money order or other form of payment enclose therin to which Employer is or may be entitled (b) to dèposit any curcy and endo an negotiat any an al
checks, drafts, money maybe th propery of

order or other form of payment nide päyale to Emloyee which ar or

Eiloyc; and (c) to the èXtetpertt by aplicale law and/or th

Agreement to deduct and withold from any èömpenon due or to bece due Emloyee frm
Employe any and all sus owed to Employer by Emloyee unde th Agreet or any

othr

agreeent, whetlier ora Or Wrtten

e

19. INSURNCE. Employee agees th dur the te ofEmployee=s employment

with Employer, Employee wil maitai in effec on any and al motor vehicles Used by Employe=s business a mium ofS300,OO.00 in coinbined Emloyee in the conduct of

sigle-limit bodily injur/proert damge liabilty ince. Emloye fuer agr to defend,
indefy and hold Employer harless frm and agat any an all clai agt Employer for

injures or daages caused, or aleged to have be cau by Employe whie operg any
moto vehèle in the coure and scope ofEmployee=s employment with Emloye. Furer,

Emploee shll notify Employer within 24 hour of any mot vecle accident whch oc in
the coure an scope ofEmployee=s employment with Employer whèh coùld re Úi a clam
agaist th Employee.

20. RESOLUTION OF DISPUTS. Any dispute, clai or contrver by or beteen
Empioyee and/or Employer arsing out of or relatig to ths Agent, includig, but not lite

to, any dispute, claim or controversy regag any compenon allege to be due Employee

under ths Agreeent, shall be submitted to arbitration adtered by the Amercan Aritron
Assoèiation (MAN$;) in Chcago, llinois under its Commercal Aritron Rules. Notwthding anytng contained herin to the COlitm, in the event of any aleged breah by

Int. rJ
10

e
DEF 12901

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

Document 345-46

Filed 02/16/2006

Page 12 of 21

e

Paragraph 12. I (AConfdential and Propriet Inormtionc¡) or Pargrh 12.2 (ANon.Solicitationc¡) or Pargrh 12.3 (Restrctve Covent) or 12.6 this Agrement, Employer shal have the option, in its sole (AAvoidance ofConfcts(l) of
Employee ofthe provisions of diretion, of submittg any clai alegig breh of

those provisions to bing aritrtion or,

altetively, filing suit against Employee in any cour or competet jursdction. Liewse the
reedy of Arbitration shall not apply to remedes avaiable to the Employer purt to Secon
12 herin.

21. INEMNICATION: The Employe herby indemes and saves haes the
Emloyer, its assign and successors, against any

and all loss, cost, dage, expose (includg,

withut liting the foregoing, reasonable attorney=s fees, cour cost an other expenes), and

ofan Conner employer of

liailty whatsoever incurr by it in any maer aring frm any asseron agai the Employe the Employe.
Although the Employer is priy responsible for any liilty th may arse due to any

acts or omissions of the Employee occrrng withn the scope ofhi iIce to the Emloyer in

the peonnance of its reed activities, the Employe agr th th Employe wi
indemfy and bold harless th Employe for the consequees for ce actions by th
Emloyee which are in violation oflaw, amomit to Û'd or miepsentaton or si actions
which would impose legal

liability on the Employer. Without litig the foreing, suh

indenUlification shall include any legal

liability imse on the Employe for the attions of th

Employee in originatng or attptig to origite a morte in a jurction in whch the the applicable st Emloyee is prohibited by this Agren or by th liceur st of

e

The Emplovee ackDowled2es for informational purposes that in the event the
Emplovee partido.tes in any fraudulent actty.that lC2al UabUlty for such fraudulent or

ilClal actvity may not be discharl!able pursuant to Federa BankrDte Droetion laws.
22. MISCELLANOUS PROVISIONS: (a) Amendment. Neither th Agreeent nor
any ter hereof may be amended, waived or dischage oray, but only by instent in wrtig

signed by th part against which enforcement of the amenent, waiver or dihae is sought.
(b) Headin~s. The headigs in ths Agrent ate for convenence or referce only

and

shall not define or limit the provisions herf.

(c) AP!lliè8ble Law. Ths Agreement sh be constred in acrdce with and
govered by the laws of

the ste in which the designte offce as set fort on Ride B athed

heto is located.
(d) Countemar. Ths Agrement may be exec in several counter, eah of
which shall constute an origial, but all of

which together sha constute but one inent.

Int. 4\
11

.
DEF 12902

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

Document 345-46

Filed 02/16/2006

Page 13 of 21

.

(e) Jursdiction of

Courts. Any judicial proceegs beteen the pares under ths

Agreeent shall be brought in the state in which the designated offce as set fort on Rider B attched hereto is located..
(f) Pares in Interest. All of

the ters, covenats and conditions herin contaed shall

inur to the benefit of and be binding upon the pares her, their hei sucessors and assign.

or sent by certfied or register mail, retu receipt reques, to the pares at thei addrses

(g) Notices. Notices under ths agreement shal be in wrti and be peronaly delivered

speced below or at such addrs as desgnted in wrtig to al puruat to ths pargrh. In

th event that the Employee changes his address he shal notifY the Employe purt to the
provision of

ths pargrh.

(h) Severabilty. Whenever possible, eah provision of ths Ageement sha be
interreed in such manner as to be effective and vald under aplicable law. Ifanyprovision of
ths Agreeent, or any portion of any proviion of

ths Agrment; is found to be unWf or

inalid or othetBe unènforceable, such proviion or poon therf sb be inective only to

the extet of sUèh prohibition or invalidity, an the other proviions herf, and the reg
porton of any such Învald or unenforcble provision, Shl re in fu fore and. cffect

(i) Waiver. No waiver, or alleged waiver, by Employe of any te condtion or
prvision of

this Agrment shall be effective for an purc whatever unes suh waiver is

- ------,-waiver-by-Em.pleyer-ltf-øltr-eo&Hhs-grt-t-er~e_6DS----- -.--.,
waer of any subsequen breah.

in wrtig an sign by a duly authoried offcer (a Vice Presidet or higher) ofBnloye. Any

e

expreion of thir Ilgreèmcnt and undersding with reeèt to the suject matt herf and as
a complete and exclusive statement of the ters theref and suersedes any

(j) Entire Aitement. This agrent is inteded by the pares herto as a fi

an al prior and

contempora agrents an underdigs.
(k) Section Headiniz The heags of the seer seon of

th Agren ar ined

for convenence of reference and ar not a pa of and ar bOt itteed to gover lit or aid in
the constction of any term or provision thereof.

(1) Constrction When necessar, the masulie shal inlude the feme or neute and

the singüliir shall include the plural and vice versa.

not sell assign or otherse trer any of th righ and intet herde without the pror
wrtten èonsent of the Emloyer. Any attte asignent herf

(m) Assiiment (i) Ths Agrent is pesonal to the Employee and the Emloye sb
withut prior wrtten const

shall be void an of no forc or effect.

Int If
12

e
DEF 12903

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

Document 345-46

Filed 02/16/2006

Page 14 of 21

(ii) The Employer shall have the right to assign ths Agreement and al of

its

e

obligations hereunder to any person, firm or corporation to whom it sell or trfer a injor
porton of

its asets.

(n) Liauidation Damages. In the event the Employee violate the provisions of Section
12.1 (A)(vii) relating to the privacy of

cusomer ficial inormtion, the Employe sha pay to

the Employer the sum of ten thousad ($10,000.00) for injur to the Employer by ren of such
breh, it being impossible to ascertain or estiate the enti or ext costs, dae, or injur

which the Employer may sustai by reasn of such breach, and suh sum is agr on as

compenaton for the injur suffered by the Employe and not as a penty.
(0) Emplovee Authoriation. The Employee auories the Employer, at its sole
reanable discetion and subjeèt to applicable law, to obta a backgrund check on the

Emloyee frm tie to time while this Agreeent is in effect

--- -.--.--.,--.----IN-\VffESßWHREF,e-esaveiHAgmefte--d-f--- -

e

abve wrtten.

~~~
Employe

Employer

Healand Home Fince, Inc.
Heaand Mortgae Company

i 40 i Bradig Lae
Downers Grve; niois 60515

Pt

..,.. V" i to ~(obu'-

Nube

Employee's Social Securty
'Z '?\- i'n~$"', '3

By:

/ 1._ ~./ L
Aisis1t Vice Prdet

k:\lg\38093\employinent4.lo\3-25-03\3.3l-03\4- 1 4-03\5-5-03

13

e
DEF 12906

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

Document 345-46

Filed 02/16/2006

Page 15 of 21

Rider A

e

Licenses of

Healand as of _June-, 2003

Arizna
State Banng Departent
Firt & Second Mortgage License #

Gilbert Branch Lic # BK-09043 1 7 Middleburg Lic # BKBR-0103721 Downers Lic # BKBR-OI03722 Kaas City Lic # BKBR-Ol 04023

Lansing, MI Lic#KBR-0104698 St. Louis, MO Lic #BKBR-OI04699 Aurora, CO Lic #BKBR-0103907 Independence, MO Lic # BKBR-OI05541

Colorado
State of Colorado
Deparent of Law
Mortgage Lieene #

Downers Grve LiC#098431

Middleburg Lic #098431-001
Aurra CO Lic #098431-002

CODnectcut Sta of Coniiecticut
Deparent of

Firt Mortgage Licee

----D Grve Lie #6881
Middleburg Lic # 10217 Marlborough, MA Lic # 1117 i
Second Mortgagq Licene

e

Banng

Consumer Credit Division

Downer Grve Lic #7108 Middlebur Lic # 10218

Malborough MA lie # 11172
Delaware Offce of the State Bim Commissioner
Firtcnd Mortgage Licee

Downer Grve, IL Lic #143875 Hanover, MD Lic # 143877 Middleburg Hts Lic # 143876

Georl!a
Deparent of

Banng and Finance

FirSecnd Mortgage Lic # 12 I 79

Mortgage Division

in
State of

Indiana Securities Division

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

e
DEF 12907

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

Document 345-46

Filed 02/16/2006

Page 16 of 21

",

Iowa

e

Sta of Iowa
Iowa Division of

First/Second Mortgage Lic # 640

Baning
First & Second Mortgae
Downers Lic #1998-3744 St. Louis Lic #1998-3744-04 Middleburg #1998-374403

K!
Offèe of

the State Ban Còmmissioner

Division of Consumer & Mortgage Lending

Aurra Lic #1998-374405
OVerland Lie #1998-374406

Independence Lic # 1998-374410 Bretwood; TN Lic # 1998-3744-07 Pittburgh PA Lie # 1998-374408
Atlanta, GA Lic # 1998-374409

Kentuckv
Deparent of

Fincial Institutions

Fir & Second Mortgage 1025

Lic # 734 &739

Maniland
Depárent of

Labr, Licensing and Regulation Firs & Secnd Mortgage
Downer Lic # 6691

-..-..---....--.----.---,------- -..----.----------Hver Li # 71142
Indianolis #7603

e

Middleburg # 7602

Massachusetts
Divion ofaanks and Loan Agencies
Firt & Second Mortgage

Downcrs Lic # MC1738

Middlebur Lie #MC1886
Faiorn OH Lie #MC2188

Haover, MD Lic #MC2161

Malborough #MC2148 MilfordCT #MC3029

Michinil
Divsion ofFincia Intutions

Firt Mortgae Lic # L-06l9 . Second Lic # SR-026l

MiDDe$Otà
Sta of

Minesta

Firt Mortgage

Dcparent of Commerce

Downer Lic # MO 20229291

e
DEF 12908

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

Document 345-46

Filed 02/16/2006

Page 17 of 21

Misouri

e

Division ofFin81ce

First & Secnd Mortgage
St. Louis Lie # 99-344 Independence, MO #01-344.1

New Hampshire State of New Hampshie

First Mortgage Licene

Bang Deparent

Downer Grve Lic # 9067-MBB Middleburg Lic # 9069.MBB-BCH Marlborough Lic # 9068-MBB-BCH

New Mexico
State of

New Mexico

Firt & Secnd Mortgage

Reguation and Liëensing Deparent

. Downer Lic # 00994

Ohio
Ohio Dertent of Commerce
Division of

Fir Mortgag

Financial Institutions

Sprigdae Lic #M8 1 7
Middlebur Lie #MB530 Faim Lic # MB909

Wortgtn Lic #M800

Seeònertgage---

e

Sprigdae SM7649

Fairn SM7650
Middlebur SM7645

Pennsvlvania
Commonweath of

Pennsylvana

Dëent ofBanrig

Fir Mortgage Lic Gree Tre Lie #1517

Grd Raids Lic #1517.001

LagLic# 1517.002
Doers LiC#1517.006
Middlebur Lic #1517.003
Southeld Liè #1517.004
Southeld Liè #1517.005

Secnd Mortgae Lic
GrenTree Lic #1833
Grd Raids Lic #1833.001 Lasi Lie #1833.002

Downer Lic # 1833.006 Middleburg Lie #1833.003
Southeld Lic #1833.004 Southeld Lic #1833.005

.
DEF 12909

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

Document 345-46

Filed 02/16/2006

Page 18 of 21

Rhode Island

e

Sta of

Rhode Island

Firt & Secnd Mortgage

Deparent of

Business Regulation

Downers Lic # 20001195 LL Downers Lic # 20001196 LB

Middlebur, OH Lic#0001196LB BOI
Sprigdae, OH Lie #2001 196LB B02

Marlborugh MA Lic #2000 1196L B03
Tennessee
Deparent of

Finacial Intitutions

Firt & Second Mortgage

Downer Grve Lic
Lic #0000000300
Brentwood 300

Vil1inia
COßODwealtb of

Virgiia

Firt & Secnd Mortgage

Middlebur MLB-SS7

Down Grve ML557 Haover,M MLSS7
Cher Hi NJ ML-S57
WasbiDl!lon
Deparent of

St Louis ML-557

---..._... - -_.--Se-f.ashingtel-'--'-' ------ -----.-Bit-m-eensng- ------,---.--- --

e

Financial Intitutions

Wisconsin Wisconsin Stae of
Dearènt of

Financial Intitutions

MortgaJe Baner I It & 2 Mortgages Lic # 1206

.I
Offce of

Heartlnd Mortgage Company
Banks and Real Estate
Fir & Secnd Mortgages
Licene # 0814

Date Issued 5/1/03

Expiration 4/30/05

.
DEF 12910

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

Document 345-46

Filed 02/16/2006

Page 19 of 21

Rider B

e

Design Offce of

Employee and States Where Orgion Pertted

Designted Offce of Employe: Malad 2 - 4231 Posta Cour Ste204 Pasen t- 21 122

. pA IW( .

States in which EDployee may origi residential mortgage loan: MD,)& VA, DE

Employe Intials ~

e

e
DEF 12911

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

Document 345-46

Filed 02/16/2006

Page 20 of 21

Schedule A

e

Loan Officer Compensaton
For all services rendered by the Employee under ths Agreeent, the Employer shal pay

the

Employee a commission upon fuding of residential and commeria fiing obtaed for clients

generted by the Employee based on the followig commssion schedule:
Hearland Lea
Employee Geerted Lead

HM#
Conformng

35%*

47%*

HM#
Non-Conf.

40%**

52%**

Brokere

30%*

42%*

* % commission paid on applicable fees less the processing fee
*. % commission paid on applicable fee inèludg the presing fee

# any loan in whch Hearand acts as the Leder
-.....---.,----..-.Thømi55aiè en eiw loail-ayale en the fi pay day follong th

e

disbursement of

the funds on said loan provided however, that any fuds disbured two or les da

pror to said payday shall be payable on the second payay followig disburement.
In addition to the above the Employee will reeive a sem-monthy drw of $500.00 agat commisions, so that at no time shall an Employe be paid less th grss wage of$500.00 durg
any two week pay perod.

e
DEF 12912

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

Document 345-46

Filed 02/16/2006

Page 21 of 21

.

Schedule B

Senior Loan Offcer Compenaton
For all services rendered by the Employee under ths Agreeent, the Employe shal pay the

Employee a cortission upon fuding of residential and commerial fiancing obtaed for clients
generate by the Employee based on the following commssion schedule:

Hearland Led

Employee Generted Lead

HM#
Conforming

35%*

55%*

HM
Non-Conf.

40%**

60%...

Brokerd

30%'"

50%.

. % commission paid on applicale fee les th processing fee

· ** % commission paid on applicale fee includ the prsig fe

. # imy loa in which Healand acts as the lender

e

Bonus on House Leads (net fees on house leads only)
0- 10,000

x
x

10,000-15,000

15,00 +

x

0% 10% 20%

The comssions paid on eah loan Sh be payble on the fu pay day followig disburment of

the

the fuds on said loan pravided howeer, th any fu dibmsed two or les da
In addition to the above the Employee will reve a sem-monthy drw of$500.00

prior to said payday shall be payable on the Second payday following dibursement

against commission, sO that at no time shall an Employee be paid less th grss wages of $500.00 .
dur any two week pay perod.

e
DEF 12913