Agreement
THIS
"AGREEMENT" is made and entered into by and between Secured Lending,
a
Arizona
corporation. and Dakota First, LLC., a North Dakota Company.
RECITAL
A. Secured
Lending is a Arizona corporation, which provides financial services.
B. Secured
Lending and Dakota First desire to enter into this Agreement to
establish, the terms and conditions of Secured Lending
and Dakota First as set forth below.
NOW,
THEREFORE, in consideration of the foregoing premise, as well as the
promises,
covenants and conditions set forth herein, the parties agree as
follows:
1. Employment:
Secured
Lending hereby contracts Dakota First in the capacity of loan origination
of Secured Lending offices located at 00000
X. Xxxxxxxxxx Xxxx,
Xxxxxxx , XX
00000. Dakota
First accepts such agreement. Dakota First's job duties and responsibilities,
to
be performed
with, the approval and concurrence of the President of secured Lending are
as
follows:
A.
Generate
and process loans in accordance with Secured.
Lending's general plans
and
policies and in compliance with Secured Lending's underwriting standards.
Such
duties may be curtailed, augmented or modified from time to time as deemed
mutually agreeable to Dakota First and Secured Lending. Dakota First will at
all
times perform their job duties
in
an honest and ethical manner and will, at a minimum, comply with the provisions
of any and
all
state or federal statutes, laws, rules or regulations applicable to Secured
Lending or
of
any
requirement of any federal or state agency having
jurisdiction
over Secured Lending including but not limited to the United States Department
of Housing and Urban Development.
Dakota
First acknowledges and agrees that Dakota. First will devote their
utmost
knowledge and best skill, to the performance of their duties.
2. At-Will
Employment.
Dakota,
First and Secured Lending understand and expressly agree that Dakota Firsts
agreement may be terminated by Secured Lending or by Dakota First at any time,
with or without notice and with or without cause. Dakota First and Secured
Lending expressly agree that this provision is intended by Dakota First and
by
Secured Lending
to be the complete and final, expression of their understanding regarding the
terms and
conditions under which Dakota First's agreement may be terminated. Dakota First
and Secured Lending further understand and agree that no representation contrary
to this provision is valid, and
that
this provision may not be augmented, contradicted or modified in any way, except
by a
writing
signed by Dakota First and Secured Lending
3. Compensation.
As
compensation for the services to be rendered by Dakota First
1
hereunder,
Secured Lending shall pay Dakota First pursuant to the
schedule
attached, hereto as
Schedule
"A". Any fees from Loans generated, including loans in the pipeline and
prequalifications,
by Dakota First prior to Dakota First's termination with Secured Lending,
but
which
loans close after, for whatever cause, will be paid to Dakota First, according
to the schedule referenced above in this subparagraph.. The
payment
of commissions to Dakota First shall be subject to the following
provisions:
3.1. Deduction
of Expenses. Dakota
First
authorize Secured Lending to
deduct
from
any
commissions due at termination. of this Agreement all financial obligations
owed
to Secured. that are imposed. by the terms of this Agreement, including, past
due fees, dues, late charges and expenses of commission payable to Dakota
First.
3.2 Receipt
of Commissions.
All
commissions will
be
received by Secured
Lending.
Dakota First's share of such commissions, as outlined in schedule “A",
however, shall be payable upon the
funding
of each loan
3.3 Non-Liability
for Uncollected Commissions.
In no
event shall Secured
Lending
be liable to Dakota First for Dakota First's
share
of commissions not collected, nor
shall
Dakota First he entitled to any advance or payment from Secured Lending
upon future
commissions.
4. Employer’s
Policies and Regulations.
Dakota
First will comply with policies and regulations, including those set forth
in
Secured Lending's , policies and procedures manual, if any, and any subsequent
amendments or additions thereto and Secured Lending's underwriting standards
for loans and any amendment or additions thereto. In. the event of any conflict
between
those
policies and regulations and. this Agreement, the terms of this Agreement shall
govern,
5. Solicitation
of Employees or Customers.
The
non-solicitation covenants contained in paragraph 5 will be mutually binding
on
the Secured Lending and Dakota First.
5.1 Information
About Other Employees and Independent Contractors.
Dakota
First will be called upon to work closely with employees and independent
contractors of Secured Lending in performing services under this Agreement.
All
information
about such employees and/or independent contractors which becomes
known to
Dakota
First during the course of their agreement with Secured Lending, and which,
is
not
otherwise known to the public, including compensation or commission structure,
is not tolerated.
6.
Further
Restrictive Covenants.
The
Trade Secrets covenants contained, in.
paragraph 6 will
be
mutually binding on the Secured Lending and Dakota First. Neither Secured
Lending nor Dakota
First shall make improper use or disclosure of their respective Trade
Secrets. Disclosure
of
Trade
Secrets to
someone
who is not
an
employee of Secured Lending must first be authorized in
writing by the President on behalf
of
Secured Lending or by the Branch Manager on behalf of
Dakota
First.
2
6.1 Trade Secrets.
During
the course of Dakota First's agreement, Dakota First will. have access to
various trade secrets of Secured Lending. A "Trade Secret" is information
which
is not generally known to the public and, as a result, is of economic benefit
to
Employer in the conduct of its business. Dakota First and Secured Lending
agree
that Track Secrets include,
but are not limited to, a11. information, developed or obtained by Secured
Lending and comprising the following items, whether or not such
items
have been reduced to tangible form (e.g. physical writing) all methods,
techniques, processes, ideas, research and development, trade names, service
n.
arks,
slogans, forms, customer lists, pricing structures, menus., business forms,
marketing programs and plans, layouts and designs, financial structures,
operational methods and tactics, cost information,
the identity of or contractual arrangements with suppliers, the
identity
or buying habits of customers, accounting procedures, and any document,
record. or other information of Secured. Lending relating to the
above.
6.2
During
the course of Dakota First's agreement, Secured Lending will have
access
to various trade secrets of Dakota First. A "Trade Secret" is information
which is not generally known to the public and., as a result, is
of
economic benefit to employer in the conduct of its business. Dakota First and
Secured Lending agree that trade secrets include, but not limited to, all
information developed or obtained by Dakota first and compromising the following
items, whether or not such items have been reduced to tangible form (e.g.
physical writing) all methods, techniques, processes, ideas, research and
development, trade names, service marks, slogans, forms, customer lists, pricing
structures, menus, business forms, marketing programs and plans, layouts and
designs, financial structures, operational methods and tactics, cost
information, the identity of or contractual arrangements with. suppliers, the
identity or buying habits of customers, accounting procedures. and any document,
record or other information of Dakota First relating above.
6.2.1
Non.
Disclosure. Dakota First will not publish. or disclose, or allow to be published
or disclosed., Trade Secrets to any person who is not an employee of Secured
Lending unless such disclosure is necessary for the performance of Dakota
First's obligations under this Agreement. Disclosure to someone who is not
an
employee of Secured Lending must first be authorized, in writing by the
President.
6.2.2 Use
Restriction. Dakota
First will use Trade Secrets only for the limited purpose for which they were
disclosed.. Dakota. First will not disclose any Trade
Secrets
to any third party (including subcontractors) without first obtaining Secured
Lending's written consent
and will disclose Trade Secrets only to Secured. Lending's
3
own
employees having a need to know. Dakota First will promptly notify Secured
Lending of any Trade Secrets improperly or prematurely disclosed.
7.
Representation Concerning Prior Agreements Dakota
First represents to Secured Lending that they are not bound by any
non-competition or non-solicitation agreement that would. preclude, limit or
in
any manner affect Dakota First Agreement with Secured Lending, Dakota First
further represents that he can fully perform the duties of their agreement
without violating any obligations they may have to any former employer,
including but not limited to, misappropriating any proprietary information
acquired from a prior employer and agrees that they have not and will not
misappropriate any proprietary information acquired from any prior employer.
(see schedule "A")
8.
Limitations
on Authority.
Without
the express written consent from the Secured Lending, Dakota First has no
authority to:
a) Pledge
the credit of Secured. Lending or any of its other employees;
b) Release
or discharge any debt in excess of $ 100.00 due to Secured Lending
unless Secured Lending has received the full amount thereof; and
c) Sell,
mortgage, transfer or otherwise dispose of any non-inventory assets of
the
Secured. Lending which, have a fair market value in excess of
$100.00
9.
Personnel
Policies and Procedures.
Secured,
Lending has the authority to establish from time to time personnel policies
and
procedures to be followed by its employees. Dakota First agrees to comply with
the policies and procedures of Secured. Lending. To the extent any provisions
in. Secured Lending's personnel policies and procedures differ with the terms
of
this Agreement, the terms of this Agreement apply. In. no case will any
personnel policies or procedures be deemed to contradict the at-will employment
provision in. this Agreement.
10. Advertising.
No
advertising in any form. is to be used by Dakota First prior to written approval
from Secured. Lending.
11. Accounts.
No
savings, checking, investment or other accounts may be
established
by Dakota First in. the name of Secured Lending or in any naive similar to
that
of Secured Lending. The determination as to similarity of names is within the
sole discretion of Secured. Lending.
12. General
Provisions.
12.1
Continuing Obligations. Neither
the
termination
of Dakota. First's agreement, termination, of this Agreement shall affect any
rights or obligations accruing prior thereto or any
continuing obligations
of
the
parties
hereunder.
4
12.2
Notice.
Any
notice, request, instruction or other document to be given hereunder
shall be in writing and shall he deemed. to have been given when
delivered personally,
Entire
Agreement.
This
Agreement supersedes any and all other agreements, either oral or in writing
or
implied. in fact, between the parties hereto with respect to the
employment
of Dakota First by Secured, Lending, and contains all of the covenants and
agreements between the parties with respect to that employment. Each, party
to
this Agreement acknowledges that, with respect to employment, no
representations, inducements, promises or agreements, orally or otherwise,
have
been made by any party, or anyone acting on behalf of any party, which are
not
embodied herein, and that no other agreement, statement or promise not contained
in this Agreement shall he valid, or binding.
12.3
Modif.cations.
Any
modification of this Agreement will be effective only if it is in a writing
that
(i) is signed by both parties; (ii) specifically references this Agreement
and
(iii) specifically expresses an intent by both parties to modify this
Agreement.
12.4
Effect of Waiver.
The
failure of either party to insist on strict compliance with any of the terms,
covenants or conditions of this Agreement by the other party shall not be deemed
a waiver of that term, covenant or condition, nor shall any waiver or
relinquishment of any right or power at any one time or times be deemed a waiver
or relinquishment of that right or power for all, or any other
tunes.
12.5
Partial Invalidity,.
If any
provision in this Agreement is held by a court of competent jurisdiction to
be
invalid., void, or unenforceable, the remaining provisions shall nevertheless
continue in. fall force without
being
impaired or invalidated
in any way. Dakota
First acknowledges and agrees that Secured Lending has no duty or obligation
to
employ Dakota First at
any
time
after expiration of this Agreement.
12.6
Law
Governing Agreement.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Arizona
13.
Acknowledgement. Dakota
First acknowledges that they have had the opportunity to consult with
independent counsel of their own, choice concerning this Agreement, and that
they have taken advantage if that opportunity to the
extent
that Dakota First desires. Secured Lending further acknowledges that they have
read and understands this Agreement, is fully aware of its legal effect, and
has
entered into it voluntarily based. on Their own judgment.
Executed
on August 2, 2006 at Phoenix, Arizona
By:
Secured Lending
By:
/s/
Xxx Xxxxxxx
5
Schedule
"A" to Dakota First and Secured
Lending
Agreement
Dakota
First Compensation
Dakota
First will receive a commission from Secured Lending as follows:
| 1. | 70% all origination fees and discount points |
| 2. |
70%
of all yield spread. premiums. All fees will be paid, after fees
to
Americash. are paid. ($595usd plus a quarter point and surcharges
from
certain banking institutions in the Americash banking
arms)
|
| 3. |
A
$30,000usd. consulting fee, to be paid each month over three months,
for
the months of June, July, August of
2006.
|
| 4. |
Dakota
First understands and agrees that it will be paid. commissions on
loans
its organization generates. Any loans generated by outside contractors,
employees, agents, Americash, or representatives of Secured
Lending will not entitle Dakota First to
commissions.
|
| 5. |
Dakota
first will use its best efforts to assist Secured Lending in achieving
Secured
Lending revenue goals of 80 loans a month as outlined, in the
attached
proforma (addendum A)
|
| 6. |
Secured
Lending understands and agrees that Dakota First will be pursuing
many
other
business ventures in. the mortgage industry and will exercise these
options
without interference from Secured
Lending.
|
