IRC Status. This Plan is intended to be a nonqualified deferred compensation arrangement that will comply in form and operation with the requirements of Code section 409A and this Plan will be construed and administered in a manner that is consistent with and gives effect to such intention.

It is the intent of the Company that the Plan comply fully with and meet all the applicable requirements of IRC [Section 162(m)] and the regulations thereunder with respect to Bonuses. If any provision of the Plan or if the award of a Bonus would otherwise conflict with the intent expressed in this Section 14, that provision, to the extent possible, shall be interpreted so as to avoid such conflict. To the extent of any remaining irreconcilable conflict with such intent, such provision shall be deemed void as applicable to Covered Employees. Nothing herein shall be interpreted to preclude a Participant who is or may be a Covered Employee form receiving any remuneration from the Company that is awarded not pursuant to the Plan or does not comply with IRC [Section 162(m)].

“Specified Employee” shall mean an individual determined by the Board, the Committee, or their delegate, to be a “specified employee” as defined in [subsection (a)(2)(B)(i)] of IRC §409A. The Committee may, but need not, elect in writing, subject to the applicable limitations under IRC §409A, any of the special elective rules prescribed in [Section 1.409A-1(i)])] of the Treasury Regulations for purposes of determining “specified employee” status. Any such written election shall be deemed part of this Agreement.

Status ………………………………. “adequately capitalized”

Status. It is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation and, if relevant under such laws, in good standing.

Status. Warnke's status vis-a-vis the Company under this Agreement is that of an independent contractor and he is neither an employee nor agent of the Company.

Status. The status of each party under this Letter Agreement shall be that of an independent contractor. Nothing in this Letter Agreement is intended or shall be deemed to constitute a partner, agency, employer-employee, or joint venture relationship between or among the parties or, except as expressly provided in this Letter Agreement, to grant any party the authority to bind or contract any obligation in the name of or on the account of any other party or to make any statements, representations, warranties or commitments on behalf of any other party.

Compliance with ERISA and the IRC. In addition to and without limiting the generality of [Section 5.8], Parent shall, and shall cause each of its Restricted Subsidiaries to, except as could not reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Effect, # comply with applicable provisions of ERISA and the IRC with respect to all Employee Benefit Plans, # without the prior written consent of Agent and the Required Lenders, not take any action or fail to take action the result of which could result in a Loan Party or ERISA Affiliate incurring a liability to the PBGC or to a Multiemployer Plan (other than to pay contributions or premiums payable in the ordinary course), # allow any failure to comply with applicable law or the terms of any Employee Benefit Plan to exist with respect to one or more Employee Benefit Plans that, in the aggregate, reasonably could be expected to result in a Material Adverse Effect, # not participate in any prohibited transaction that could result in a civil penalty excise tax, fiduciary liability or correction obligation for violating ERISA or the IRC, # operate each Employee Benefit Plan in such a manner that will not incur any tax liability under the IRC (including [Section 4980B] of the IRC), and # furnish to Agent within a reasonable period of time after Agent’s written request such additional information about any Employee Benefit Plan for which any Loan Party could reasonably expect to incur any liability. With respect to each Pension Plan (other than a Multiemployer Plan) except as could not reasonably be expected to result in a Material Adverse Effect, the Loan Parties and the ERISA Affiliates shall # satisfy in full and in a timely manner, without incurring any late payment or underpayment charge or penalty and without giving rise to any Lien, all of the contribution and funding requirements of the IRC and of ERISA, and # pay, or cause to be paid, to the PBGC in a timely manner, without incurring any late payment or underpayment charge or penalty, all premiums required pursuant to ERISA.

By including amounts deferred but not refunded under a cafeteria plan, as such term is defined in [section 125(c)] of the IRC and under a plan, including this Plan, qualified under [section 401(k)] of the IRC, and amounts excludable from a Member’s gross income under [section 132(f)(4)] of the IRC.

“ERISA Affiliate” means # any Person subject to ERISA whose employees are treated as employed by the same employer as the employees of any Borrower or any of its Subsidiaries under IRC [Section 414(b), (b)])] any trade or business subject to ERISA whose employees are treated as employed by the same employer as the employees of any Borrower or any of its Subsidiaries under IRC [Section 414(c), (c)])] solely for purposes of [Section 302] of ERISA and [Section 412] of the IRC, any organization subject to ERISA that is a member of an affiliated service group of which any Borrower or any of its Subsidiaries is a member under IRC [Section 414(m), or (d)])] solely for purposes of [Section 302] of ERISA and [Section 412] of the IRC, any Person subject to ERISA that is a party to an arrangement with any Borrower or any of its Subsidiaries and whose employees are aggregated with the employees of any Borrower or any of its Subsidiaries under IRC [Section 414(o)].