Separation Payments (a) By the later of (i) the date that is seven (7) calendar days from Termination Date, and (ii) the Company’s next regular payroll date following Termination Date, the Company will provide you with the Accrued Obligations (as such term is defined in the Employment Agreement).
(b) Provided you have not voluntarily quit your employment with the Company prior to the Separation Date, in exchange for your executing a non-revocable Separation and Release Agreement, a copy of which is attached hereto (the “Release”) on or after the Termination Date, you will receive the following payments and benefits:
(i) Continuation of your base salary (at an annual rate of $350,000) for the period commencing on the Termination Date and ending on the one (1) year anniversary of the Termination Date (the “Severance Term”), payable in accordance with the Company’s payroll practices and subject to applicable withholdings;
(ii) An amount equal to the Pro Rata Bonus (as such term is defined in the Employment Agreement), equal to an aggregate of $173,611, payable in equal installments during the Severance Term and in accordance with the Company’s payroll practices and subject to applicable withholdings;
(iii) Subject to your election to participate in continuation coverage under the Company’s health plan pursuant to COBRA, payment of COBRA premiums for you and your covered dependents in excess of the cost of such health insurance coverage for active employees of the Company until the earlier of (A) expiration of the Severance Term, or (B) the date that you commence employment with any person or entity and, thus, are eligible for health insurance benefits; and
(iv) Reimbursement for all legitimate business expenses incurred by you which have not yet been reimbursed as of the date hereof, and an amount in respect of 21 days of Paid Time Off you have accrued while employed.
(c) In the event that any regular payroll date occurs prior to the Effective Date (as defined in the Release), any amount that would otherwise have been payable as a result of the subparagraphs (b)(i), (b)(ii) or (b)(iii) above shall be deferred and paid together with the regular salary installment on the first regular payroll date following the Effective Date.
(d) You acknowledge and agree that the payment(s) and other benefits provided pursuant to paragraph 2 are in full discharge of any and all liabilities and obligations of the Company or any other member of the Company Group to you, monetarily or with respect to employee benefits or otherwise, including but not limited to any and all obligations arising under any alleged written or oral employment agreement, policy, plan or procedure of the Company or any other member of the Company Group and/or any alleged understanding or arrangement between you and the Company or any other member of the Company Group (other than claims for accrued and vested benefits under an employee benefit, insurance, or pension plan of the Company or any other member of the Company Group, subject to the terms and conditions of such plan(s)).
Termination Payments In the event of termination of the employment of Executive, all compensation and benefits set forth in this Agreement shall terminate except as specifically provided in this paragraph 4:
Income Payments (i) If Income is paid in respect of any Purchased Mortgage Loans during the term of a Transaction, such Income shall be the property of Buyer. Seller shall cause the Servicer to remit to the Collection Account all Income in accordance with the related Servicer Side Letter. Upon the occurrence and during the continuance of an Event of Default, within two (2) Business Days of receipt thereof, Seller shall, and shall cause the applicable Servicer to deposit such Income into the account set forth in Section 10(a) hereof.
(ii) Notwithstanding any provision to the contrary in this Section 5, within two (2) Business Days after notification of receipt by Seller or Servicer of any prepayment of principal in full, with respect to a Purchased Mortgage Loan, Seller shall or shall cause Servicer to remit such amount directly to the Collection Account in accordance with the related Servicer Side Letter. Buyer shall immediately apply any such amount received to reduce the amount of the Repurchase Price due upon termination of the related Transaction and to the extent no Default or Event of Default has occurred and is continuing, shall promptly remit any excess to Seller; provided, that Buyer shall have no obligation to apply such payments in the event that it is unable to identify the Purchased Mortgage Loans to which such payments correspond.
(iii) Provided that no Event of Default has occurred and is continuing, on each Price Differential Payment Date, Buyer shall remit all Income in the Collection Account with respect to the Purchased Mortgage Loans as follows:
(A) first, to Buyer, in payment of any accrued and unpaid Price Differential to the extent not paid by Seller to Buyer pursuant to Section 5(b) hereof;
(B) second, to Buyer, in the order of priority as determined in accordance with Section 4, in reduction of the Repurchase Price of any liquidation, pay-off or repurchase of any Purchased Mortgage Loan up to the amount advanced by Buyer;
(C) third, without limiting the rights of Buyer under Section 7 hereof, to Buyer, in the amount of any unpaid Margin Deficit in excess of the Minimum Margin Threshold;
(D) fourth, to the payment of all other Obligations then due and owing to Buyer; and
(E) fifth, to, or at the direction of Seller, any remaining amounts.
(iv) Notwithstanding the preceding provisions, if an Event of Default has occurred and is continuing, all funds received by Buyer pursuant to this Section 5 shall be applied to reduce Obligations as determined by Buyer in its sole discretion.
Retention Payment (a) In the event, if ever, on or after the Effective Date, the Company executes an engagement agreement with an investment banking firm or other business brokerage firm for the purposes that include exploring a transaction the consummation of which would constitute a Change In Control (“Engagement Date”), and, subject to the other provisions of this Section 8, if Executive is still employed with the Company on the date which is twenty-four (24) months from the Engagement Date, the Company shall pay Executive a retention payment in an amount equal to fifty percent (50%) of his then current Base Salary plus fifty percent (50%) of his then current Target Bonus (calculated assuming that Executive and the Company had achieved all objectives set by the Company with respect thereto), which payment shall be made on the next regular pay day following such date (“Retention Payment”). Notwithstanding the foregoing, no such retention payment shall be paid if Executive previously has received a payment under Section 7(a) within the above-referenced twenty-four (24) month period.
(b) Additionally, in the event a Change in Control occurs during the period beginning twenty-four (24) months following the Engagement Date and ending thirty-six (36) months following the Engagement Date (the “Reduction Period”), then any payment otherwise payable to Executive under Section 7(a) shall be reduced, pro rata, based on the number of days remaining in the Reduction Period. By way of example, if a Change in Control occurs ninety (90) days into the Reduction Period, the payment otherwise payable to Executive under Section 7(a) shall be reduced by 275/365, or seventy-five percent (75%).
(c) Notwithstanding anything in this Section 8 to the contrary, if the Board determines that, after giving effect to the Retention Payment and to any other retention payments to be made under any other employment agreements between the Company and other employees, a default could occur under any financing facility or loan between the Company and any Company lender, the Retention Payment shall be made in fully vested Company shares of common stock under the Company’s 2006 Equity Incentive Plan.
Separation Payment An ASF Member shall be compensated at the final rate of pay for all unused, accumulated vacation, leave time upon separation from state service, or movement to a vacation ineligible position. An employee on an unpaid leave of absence of more than one (1) year for a purpose other than accepting an unclassified position in state civil service, or an employee on layoff that results in separation from service, may elect to be compensated at the final rate of pay for unused accumulated vacation leave. This accumulated vacation payout shall not exceed two hundred and seventy-five (275) hours, except in the case of the ASF Member's death. Calculation of an ASF Member's hourly rate for purposes of computing vacation separation payment shall be based upon a base of two thousand eighty-eight (2,088) working hours per year. Appointment periods of less than one
(1) year in duration shall be prorated on this basis. Except as provided in Article 16, Section C, Subdivision 4 which pertains to the separation payment to retirees, the separation payment will be made in cash.
Payments From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.
