Payment of Amount or Expense. (a) In the event that Eagles or the Company is obligated to pay the other the Break-up Fee pursuant to Section 8.2(b) (the “Termination Amount”), Eagles or the Company (the “Payor”) shall pay to the other party (the “Payee”) from the applicable Termination Amount deposited into escrow in accordance with the next sentence, an amount equal to the lesser of (i) the Termination Amount and (ii) the sum of (A) the maximum amount that can be paid to the Payee without causing the Payee to fail to meet the requirements of Code Sections 856(c)(2) and (3) determined as if the payment of such amount did not constitute income described in Code Sections 856(c)(2)(H) or Code 856(c)(3)(I) (“Qualifying Income”), as determined by the Payee’s independent certified public accountants, plus (B) in the event the Payee receives either (1) a letter from the Payee’s counsel indicating that the Payee has received a ruling from the IRS described in Section 8.4(b)(ii) or (2) an opinion from the Payee’s outside counsel as described in Section 8.4(b)(ii), an amount equal to the Termination Amount less the amount payable under clause (A) above. To secure the Payor’s obligation to pay these amounts, the Payor shall deposit into escrow an amount in cash equal to the Termination Amount with an escrow agent selected by the Payor and on such terms (subject to Section 8.3(b)) as shall be mutually agreed upon by Eagles, the Company and the escrow agent. The payment or deposit into escrow of the Termination Amount pursuant to this Section 8.3(a) shall be made at the time the Payor is obligated to pay the Payee the such amount pursuant to Section 8.3 or Section 8.2(b), as applicable, by wire transfer or bank check.
(b) The escrow agreement shall provide that the Termination Amount in escrow or any portion thereof shall not be released to the Payee unless the escrow agent receives any of the following: (i) a letter from the Payee’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Payee without causing the Payee to fail to meet the requirements of Code Sections 856(c)(2) and (3) determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Payee’s accountants revising that amount, in which case the escrow agent shall release such amount to the Payee, or (ii) a letter from the Payee’s counsel indicating that the Payee received a ruling from the IRS holding that the receipt by the Pay...
Payment of Amount or Expense. The maximum amount that the Company can receive in its taxable year in which occurs the event giving rise to liability for the Break-up Fee pursuant to Section 8.2(b) or any fee pursuant to Section 8.2(c) (collectively, the “Section 8.2 Amount”) shall be the maximum amount that the Company can receive in that taxable year without failing the REIT Income Requirements (as defined below), determined as if the receipt of that amount does not constitute Qualifying Income (as defined below), as determined by the independent accountants of the Company (each such annual amount, the “Annual Payment Amount”). If the Annual Payment Amount (as determined by the independent accountants of the Company) for the taxable year in which the Section 8.2 Amount first becomes owed is less than the Section 8.2 Amount, Parent shall pay only the Annual Payment Amount in that taxable year, and any excess portion of the Section 8.2 Amount shall be payable in subsequent taxable years only to the extent provided below. The Company shall send a letter to Parent during each subsequent taxable year indicating the portion of the unpaid Section 8.2 Amount that Parent shall pay to the Company in that taxable year, which amount shall be the Annual Payment Amount for that taxable year set forth in a letter from the Company’s independent accountants. Subject to satisfaction of the conditions set forth in the immediately preceding sentence, there is no limitation on the number of payments that can be made from Parent to the Company prior to the sixth anniversary of the date of this Agreement. In no event shall the Company be entitled to receive from Parent in any taxable year any portion of the Section 8.2 Amount in excess of the Annual Payment Amount (as determined by the independent accountants of the Company) for that taxable year. The obligation of Parent to pay any unpaid portion of the Section 8.2 Amount shall terminate six years from the date of this Agreement. Income is “Qualifying Income” if it is described in any subparagraph of Section 856(c)(2) of the Code and in any subparagraph of Section 856(c)(3) of the Code. The “REIT Income Requirements” are the requirements imposed by Section 856(c)(2) and (3) on the income that an entity can receive and qualify as a REIT for purposes of the Code. The remainder of this Section 8.4 notwithstanding, Parent shall pay the Company any unpaid portion of the Section 8.2 Amount at any time prior to six years from the date of this Agreement if the Com...
