**Exhibit10.23**

 

**AMENDED AND RESTATED EMPLOYMENTAGREEMENT**

 

This Amended and RestatedEmployment Agreement (“Agreement”) is made effective as of January 1, 2003****(“Effective Date”), by andbetween American Mortgage Network, Inc., a Delaware corporation, and asubsidiary of American Residential Investment Trust, Inc., a Marylandcorporation (“Company”) and JudithBerry (“Executive”).

 

WHEREAS Executive andCompany entered into an Employment Agreement dated December 14, 2001 (the“Original Agreement”); 

 

WHEREAS the OriginalAgreement expired on December 13, 2002; and 

 

WHEREAS, Executive andCompany each desire to amend and restate the Original Agreement as set forthbelow.

 

NOW, THEREFORE, inconsideration of the promises and respective covenants and agreements of theparties herein contained, Executive and Company agree as follows:

 

1.                                       Employment.  Company hereby employs Executive, and Executive hereby accepts suchemployment, upon the terms and conditions set forth herein.

 

2.                                       Duties.

 

2.1                                 Position.  Executive is employed as Executive Vice President and Chief FinancialOfficer and shall have the duties and responsibilities assigned byCompany both upon initial hire and as may be reasonably assigned from time totime.  Executive shall performfaithfully and diligently all duties assigned to Executive.  Company reserves the right to modifyExecutive’s position and duties at any time in its sole and absolutediscretion, provided that the duties assigned are consistent with the positionof a senior executive and that Executive continues to report to the ChiefExecutive Officer (“CEO”).

 

2.2                                 BestEfforts/Full-time.  Executive willexpend Executive’s best efforts on behalf of Company, and will abide by allpolicies and decisions made by Company, as well as all applicable federal,state and local laws, regulations or ordinances.  Executive will act in the best interest of Company at alltimes.  Executive shall devoteExecutive’s full business time and efforts to the performance of Executive’sassigned duties for Company, unless Executive notifies the Company’s CEO inadvance of Executive’s intent to engage in other paid work and receives theCEO’s express written consent to do so.

 

2.3                                 WorkLocation.  Executive’s principalplace of work shall be located at 12041 Wateridge Circle, San Diego, California, or such otherlocation as the parties may agree upon from time to time.

 

3.                                       Term.  The employmentrelationship pursuant to this Agreement shall be for a term commencing on theEffective Date set forth above and continuing for a period of one year following such date, unlesssooner terminated in accordance with paragraph 7 below.

 

4.                                       Compensation.

 

4.1                                 BaseSalary.  As compensation forExecutive’s performance of Executive’s duties hereunder, Company shall pay toExecutive an initial Base Salary of

 

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Two Hundred Fifty-Five Thousand One HundredFifty Dollars ($255,150.00) per year, payable in accordance with thenormal payroll practices of Company, less required deductions for state andfederal withholding tax, social security and all other employment taxes andpayroll deductions.  In the eventExecutive’s employment under this Agreement is terminated by either party, forany reason, Executive will earn the Base Salary prorated to the date oftermination.

 

4.2                                 Bonus.  Executive will be eligible to earn a bonusof up to 100 percent of Executive’s Base Salary based on achievement oftargeted goals and objectives, including net income, established by managementand approved by the Company’s Board of Directors (“Board of Directors”).  

 

4.3                                 Performanceand Salary Review.  Company willperiodically review Executive’s performance. Adjustments to salary or other compensation, if any, will be made byCompany in its sole and absolute discretion.

 

5.                                       FringeBenefits.  Executive will be eligiblefor all customary and usual fringe benefits generally available to executivesof Company subject to the terms and conditions of Company’s benefit plandocuments.  In addition, Executive shallbe eligible to accrue 27 days of Paid Time Off (“PTO”) per year and receivereimbursement of up to $2000 per year for a physical examination.  Company reserves the right to change oreliminate the fringe benefits on a prospective basis, at any time, effectiveupon notice to Executive.

 

6.                                       Business Expenses. Executive will be reimbursed for all reasonable, out-of-pocket businessexpenses incurred in the performance of Executive’s duties on behalf ofCompany.  To obtain reimbursement,expenses must be submitted promptly with appropriate supporting documentationin accordance with Company’s policies.

 

7.                                       Terminationof Executive’s Employment.  

 

7.1                                 Terminationfor Cause by Company.  AlthoughCompany anticipates a mutually rewarding employment relationship withExecutive, Company may terminate Executive’s employment immediately at any timefor Cause.  For purposes of thisAgreement, “Cause” is defined as: (i) acts or omissions constituting grossnegligence, recklessness or willful misconduct on the part of Executive with respectto Executive’s obligations or otherwise relating to the business of Company;(ii) Executive’s material breach of this Agreement or Company’sConfidentiality Agreement; (iii) Executive’s conviction or entry of a pleaof nolo contendere for fraud, misappropriation or embezzlement, or any felony orcrime of moral turpitude; (iv) Executive’s willful neglect of duties asdetermined in the sole and exclusive discretion of the Board of Directors; or(v) Executive’s chemical dependence, as certified by a licensed physician,resulting in impairment of Executive’s abilities to perform her dutieshereunder or substantial damage to the reputation of Company.  Notwithstanding the foregoing, thetermination of Executive’s employment shall not constitute termination forCause unless Company first provides Executive with written notice of the breachand Executive fails to cure the breach (if possible) within 30 days of thenotice.  During this 30 day noticeperiod, Executive shall be afforded the opportunity to make a presentation tothe Board of Directors regarding the matters referred to in the notice ofbreach.  In the event Executive’semployment is terminated in accordance with this subparagraph 7.1, Executiveshall be entitled to receive only the Base Salary then in effect and anyamounts payable pursuant to paragraphs 5 and 6, prorated to the date oftermination (“Standard Entitlements”). All other Company obligations to Executive pursuant to this Agreement

 

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will become automaticallyterminated and completely extinguished. Executive will not be entitled to receive the Severance Packagedescribed in subparagraph 7.2 below.

 

7.2                                 TerminationWithout Cause by Company/Severance. Company may terminate Executive’s employment under this Agreementwithout Cause at any time on 30 days’****advance written notice to Executive.  In the event of such termination, Executivewill receive the Standard Entitlements and will be eligible to receive a“Severance Package” as described in subparagraph (a) below, providedExecutive complies with all the conditions set forth in subparagraph (b)below.  All other Company obligations toExecutive will be automatically terminated and completely extinguished.  

 

(a)                                  Severance Package. The Severance Package will consist of the following:

 

(i)                                    SeverancePayment.  Executive will receive aSeverance Payment equivalent to one yearof Executive’s Base Salary then in effect on the date of termination,less required deductions for state and federal withholding tax, social securityand all other employment taxes and payroll deductions, payable in accordancewith Company’s regular payroll cycle. 

 

(ii)                                 BonusPayment.  Executive will receive a Bonus Payment equivalent to the amountof Executive’s bonus for the immediately preceding year, less requireddeductions for state and federal withholding tax, social security and all otheremployment taxes and payroll deductions, payable in a lump sum payment withinthree months of the date of termination.

 

(iii)                              Continuationof Group Health Benefits.  Executive will continue to receive grouphealth insurance benefits on the same terms as during Executive’s employment for one year following the date oftermination, provided Company’sinsurance carrier allows for such benefits continuation.  In the event****Company’s insurance carrier does not allow such coveragecontinuation,****Company****agreesto pay the premiums required to continue Executive’s group health care coverage for the one-year period,under the applicable provisions of the Consolidated Omnibus Budget ReconciliationAct of 1985 (“COBRA”), provided that Executiveelects to continue and remains eligible for these benefits under COBRA, anddoes not obtain health coverage through another employer during thisperiod.  

 

(b)                                 Conditions to Receive Severance Package.  Executive will be eligible for the SeverancePackage provided that Executive: (a) complies with all survivingprovisions of this Agreement as specified in subparagraph 14.8 below; and(b) executes a full general release, releasing all claims, known orunknown, that Executive may have against Company arising out of or any wayrelated to Executive’s employment or termination of employment withCompany.  All other Company obligationsto Executive will be automatically terminated and completely extinguished.

 

7.3                                 VoluntaryResignation by Executive for Good Reason/Severance.  Executive may voluntarily resign Executive’sposition with Company for Good Reason at any time on 30 days’****advancewritten notice to Company.  Executivewill be deemed to have resigned for Good Reason if resignation is made withinsix (6) months following the occurrence of any of the followingcircumstances:  (i) Company’smaterial breach of this Agreement; (ii) Executive’s Base Salary is reducedby more than 10% below Executive’s salary as provided for in this Agreement,unless the reduction is due to a voluntary change of Executive’sresponsibilities; (iii) Executive’sposition and/or duties are

 

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modified so that Executive’s duties are no longer consistent with theposition of a senior executive or Executive no longer reports to the CEO;or (iv) Company relocates Executive’s principal place of work to alocation more than thirty (30) miles from the location specified insubparagraph 2.3, without Executive’s prior written approval.  Notwithstanding the foregoing, thetermination of Executive’s employment under this subparagraph 7.3 shallnot constitute voluntary resignation for Good Reason unless Executive firstprovides Company with written notice of the breach and Company fails to curethe breach (if possible) within 30 days of the notice.  In the event of Executive’s resignation forGood Reason, Executive will be entitled to receive the Standard Entitlementsand the Severance Package described in subparagraph 7.2(a) above, providedExecutive complies with all of the conditions in subparagraph 7.2(b)above.  All other Company obligations toExecutive pursuant to this Agreement will become automatically terminated andcompletely extinguished.

 

7.4                                 VoluntaryResignation by Executive Without Good Reason.  Executive may voluntarily resign Executive’s position withCompany Without Good Reason at any time on 30 days’ advance writtennotice.  In the event of Executive’sresignation Without Good Reason, Executive will be entitled to receive only theStandard Entitlements and no other amount. All other Company obligations to Executive pursuant to this Agreementwill become automatically terminated and completely extinguished.  In addition, Executive will not be entitledto receive the Severance Package described in subparagraph 7.2 above.

 

7.5                                 TerminationUpon Death.  Executive’s employmentwill terminate immediately on Executive’s death.  In the event of such termination, Company shall provide a deathbenefit equal to: (i) Executive’s Base Salary then in effect, prorated forthe current year to the date of Executive’s death; (ii) an amount equal tothe bonus paid to Executive the previous year, prorated for the current year tothe date of Executive’s death; and (iii) any amounts payable pursuant toparagraphs 5 and 6 that at the date of Executive’s death, are accrued butunpaid (collectively “Death Benefit”). The Death Benefit shall be made in a lump sum payment within 90 days ofExecutive’s death to such person as Executive shall designate in a notice filedwith Company or, if no such notice is filed, the Death Benefit shall be paid toExecutive’s estate.

 

7.6                                 TerminationUpon Disability.  Executive’semployment may be terminated by Company as a result of Executive’s inability toperform the essential functions of Executive’s position, with or withoutreasonable accommodation, if required by law, due to a mental or physicaldisability.  In no event will Executive’semployment be terminated pursuant to this subparagraph 7.6 until 180consecutive days of paid leave have elapsed and Company has provided 30 days’written notice in advance of termination. In the event of termination pursuant to this subparagraph 7.6,Executive shall be entitled to receive only the Standard Entitlements.  All other Company obligations to Executivepursuant to this Agreement will become automatically terminated and completelyextinguished.  Executive will not beentitled to receive the Severance Package described in subparagraph 7.2 above.  

 

7.7                                 TerminationUpon Expiration of Agreement.  IfExecutive’s employment is not terminated in accordance withsubparagraphs 7.1-7.6, this Agreement will expire exactly one year fromthe Effective Date.  In the event ofexpiration of this Agreement, Executive shall be entitled to receive only theStandard Entitlements earned through the date of expiration.  All other Company obligations to Executivepursuant to this Agreement will become automatically terminated and completelyextinguished.

 

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Executive will not be entitled to receive theSeverance Package described in subparagraph 7.2 above.

 

8.                                       ConsultantAfter Termination.  In the eventExecutive’s employment is terminated pursuant to subparagraphs 7.1, 7.4 or7.7, Executive agrees to act as aconsultant for Company, if requested to do so by Company.  Executive will be paid a fixed monthly feeequal to 25 percent of Executive’s monthly base salary in effect at thetime of termination for up to****six (6)months following the termination of the employment relationship (“ConsultantPayments”).  Consultant Payments shallbe made in arrears on or before the last business day of each month duringwhich Executive has acted as a consultant. Company may elect, in its sole and absolute discretion, to terminate theConsultant Payments at any time upon 10 days’ advance written notice toExecutive.

 

9.                                       NoConflict of Interest.  During theterm of Executive’s employment with Company and during any period Executive isreceiving payments from Company pursuant to this Agreement, Executive must notengage in any work, paid or unpaid, that creates an actual conflict of interestwith Company.  Such work shall include,but is not limited to, directly competing with Company in any way, or acting asan officer, director, employee, consultant, stockholder, volunteer, lender, oragent of any business enterprise of the same nature as, or which is in directcompetition with, the business in which Company is now engaged or in whichCompany becomes engaged during the term of Executive’s employment with Company,as may be determined by the Board of Directors in its sole discretion.  If the Board of Directors believes such aconflict exists during the term of this Agreement, the Board of Directors mayask Executive to choose to discontinue the other work or resign employment withCompany.  If the Board of Directorsbelieves such a conflict exists during any period in which Executive isreceiving payments pursuant to this Agreement, the Board of Directors may askExecutive to choose to discontinue the other work or forego the remainingpayments.  In addition, Executive agreesnot to refer any client or potential client of Company to competitors ofCompany, without obtaining Company’s prior written consent, during the term ofExecutive’s employment and during any period in which Executive is receivingpayments from Company pursuant to this Agreement.  Notwithstanding the foregoing, Executive maywork or perform services for Company and its affiliates or a financialinstitution or similar entity that is involved in the mortgage business so longas such entity is not engaged primarily in managing real estate investmenttrusts or originating and/or selling mortgages, and Executive may ownsecurities in any publicly held corporation, but only to the extent Executivedoes not own of record or beneficially more than 1 percent of the outstandingbeneficial ownership of such corporation.

 

10.                                 ConfidentialityAgreement and Return of Company Property. Executive agrees to abide by Company’s Confidentiality Agreement thatExecutive read and signed in connection with Executive’s employment by Company,which is incorporated herein by reference.  Executivefurther agrees that upon termination or expiration of Executive’s employment,Executive will return all Company property, including all confidential andproprietary information as described in the Confidentiality Agreement, allmaterials and documents containing trade secrets and copyrighted materials, allcorrespondence, management studies and any other materials or data relating toor connected with Executive’s employment, including all copies and excerpts ofthe same.

 

11.                                 Indemnification.  Company agrees to defend and indemnifyExecutive to the fullest extent provided by California Labor Codesection 2802 and/or Company’s Directors’ and Officers’ liability insurancepolicy.

 

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12.                                 Injunctive Relief.  Executive acknowledges that Executive’s breachof the covenants contained in paragraphs 9-10 (collectively “Covenants”) wouldcause irreparable injury to Company and agrees that in the event of any suchbreach, Company shall be entitled to seek temporary, preliminary and permanentinjunctive relief without the necessity of proving actual damages or postingany bond or other security.

 

13.                                 Agreement toArbitrate.  To the fullest extentpermitted by law, Executive and Company agree to arbitrate any controversy,claim or dispute between them arising out of or in any way related to thisAgreement, the employment relationship between Company and Executive and anydisputes upon termination of employment, including but not limited to breach ofcontract, tort, discrimination, harassment, wrongful termination, demotion,discipline, failure to accommodate, family and medical leave, compensation orbenefits claims, constitutional claims; and any claims for violation of anylocal, state or federal law, statute, regulation or ordinance or common law.  By executing this Agreement, Executive andCompany are both waiving the right to a jury trial with respect to any suchdisputes.  For the purpose of thisagreement to arbitrate, references to “Company” include all parent, subsidiaryor related entities and their employees, supervisors, officers, directors,agents, pension or benefit plans, pension or benefit plan sponsors,fiduciaries, administrators, affiliates and all successors and assigns of anyof them, and this agreement shall apply to them to the extent Executive’sclaims arise out of or relate to their actions on behalf of Company.  

 

13.1                           Consideration.  The mutual promise by Company and Executiveto arbitrate any and all disputes between them rather than litigate them beforethe courts or other bodies, provides the consideration for this agreement toarbitrate.

 

13.2                           Initiationof Arbitration.  Either party mayexercise the right to arbitrate by providing the other party with writtennotice of any and all claims forming the basis of such right in sufficient detailto inform the other party of the substance of such claims.  In no event shall the request forarbitration be made after the date when institution of legal or equitableproceedings based on such claims would be barred by the applicable statute oflimitations.

 

13.3                           ArbitrationProcedure.  The arbitration will beconducted in San Diego, Californiaby a single neutral arbitrator and in accordance with the then current rulesfor resolution of employment disputes of the American Arbitration Association(“AAA”).  The parties are entitled torepresentation by an attorney or other representative of their choosing.  The arbitrator shall have the power to enterany award that could be entered by a judge of the trial court of the State ofCalifornia, and only such power, and shall follow the law.  The parties agree to abide by and performany award rendered by the arbitrator. The arbitrator shall issue the award in writing and therein state theessential findings and conclusions on which the award is based.  Judgment on the award may be entered in anycourt having jurisdiction thereof.

 

13.4                           Costsof Arbitration.  Company shall bearthe costs of the arbitrator, forum and filing fees.  

 

14.                                 GeneralProvisions.

 

14.1                           Successorsand Assigns.  The rights andobligations of Company under this Agreement shall inure to the benefit of andshall be binding upon the successors and assigns of Company.  Executive shall not be entitled to assignany of Executive’s rights or obligations under this Agreement.

 

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14.2                           Waiver.  Either party’s failure to enforce anyprovision of this Agreement shall not in any way be construed as a waiver ofany such provision, or prevent that party thereafter from enforcing each andevery other provision of this Agreement.

 

14.3                           Attorneys’Fees.  Each side will bear its ownattorneys’ fees in any dispute unless a statutory section at issue, if any,authorizes the award of attorneys’ fees to the prevailing party.

 

14.4                           Severability.  In the event any provision of this Agreementis found to be unenforceable by an arbitrator or court of competentjurisdiction, such provision shall be deemed modified to the extent necessaryto allow enforceability of the provision as so limited, it being intended thatthe parties shall receive the benefit contemplated herein to the fullest extentpermitted by law.  If a deemedmodification is not satisfactory in the judgment of such arbitrator or court,the unenforceable provision shall be deemed deleted, and the validity andenforceability of the remaining provisions shall not be affected thereby. 

 

14.5                           Interpretation;Construction.  The headings setforth in this Agreement are for convenience only and shall not be used ininterpreting this Agreement.  ThisAgreement has been drafted by legal counsel representing Company, but Executivehas participated in the negotiation of its terms.  Furthermore, Executive acknowledges that Executive has had anopportunity to review and revise the Agreement and have it reviewed by legal counsel,if desired, and, therefore, the normal rule of construction to the effect thatany ambiguities are to be resolved against the drafting party shall not beemployed in the interpretation of this Agreement.

 

14.6                           GoverningLaw.  This Agreement will be governedby and construed in accordance with the laws of the United States and the Stateof California.  Each party consents tothe jurisdiction and venue of the state or federal courts in San Diego,****California, if applicable,in any action, suit, or proceeding arising out of or relating to thisAgreement.

 

14.7                           Notices.  Any notice required or permitted by thisAgreement shall be in writing and shall be delivered as follows with noticedeemed given as indicated:  (i) bypersonal delivery when delivered personally; (ii) by overnight courierupon written verification of receipt; (iii) by telecopy or facsimiletransmission upon acknowledgment of receipt of electronic transmission; or(iv) by certified or registered mail, return receipt requested, uponverification of receipt.  Notice shallbe sent to the addresses set forth below, or such other address as either partymay specify in writing.

 

14.8                           Survival.  Sections 9 (“No Conflict of Interest”), 10(“Confidentiality Agreement”), 12 (“Injunctive Relief”), 13 (“Agreement toArbitrate”), 7.2 (“General Provisions”) and 15 (“Entire Agreement”) of thisAgreement shall survive Executive’s employment by Company.

 

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15.                                 EntireAgreement.  This Agreement,including the Company’s Confidentiality Agreement incorporated herein byreference, constitutes the entire agreement between the parties relating tothis subject matter and supersedes all prior or simultaneous representations,discussions, negotiations, and agreements, whether written or oral.  This Agreement may be amended or modifiedonly with the written consent of Executive and the CEO of Company.  No oral waiver, amendment or modificationwill be effective under any circumstances whatsoever.

 

THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT ANDFULLY UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THEPARTIES HAVE EXECUTED THIS AGREEMENT ON THE DATES SHOWN BELOW.

 
|   |           | JUDITH BERRY                      |
|--------|----------------|-----------------------------------|
|   |           |                              |
| Dated: |   3/31/03 |                              |    /s/ Judith  Berry |
|   |           |                              |
|   |           |                              |
|   |           |                              |
|   |           | American Mortgage Network,  Inc.  |
|   |           |                              |   |
|   |           |                              |   |
| Dated: |   3/31/03 |                              | By: |     /s/ John  Robbins |
|   |           | John Robbins                      |
|   |           | Chief Executive Officer           |
|   |           | 10421 Wateridge Circle,  Ste. 250 |
|   |           | San Diego, CA 92121               |
|        |                |                                   |  |  |  |

 

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