Common use of Payment of Amount or Expense Clause in Contracts

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 Company delivers to Parent a copy of a letter from outside counsel which states that the Company has received a private letter ruling from the IRS which holds that its receipt of a payment of the Section 8.2 Amount constitutes Qualifying Income or is excludible from gross income for purposes of the REIT Income Requirements.

Payment of Amount or Expense. The maximum amount (a) In the event that Parent is obligated to pay the Company can receive the Parent Termination Fee, plus the Parent Expenses and the Parent Recovery Costs set forth in its taxable year Section 7.3, Parent shall pay to the Company from the Parent Termination Fee, plus the Parent Expenses and the Parent Recovery Costs deposited into escrow in which occurs accordance with the event giving rise next sentence, an amount equal to liability for the Break-up Fee pursuant to Section 8.2(blesser of (i) or any fee pursuant to Section 8.2(cthe Parent Termination Fee, plus the Parent Expenses and the Parent Recovery Costs and (ii) the sum of (collectively, the “Section 8.2 Amount”1) shall be the maximum amount that can be paid to the Company can receive in that taxable year without failing causing the REIT Income Requirements Company to fail to meet the requirements of Sections 856(c)(2) and (as defined below), 3) of the Code determined as if the receipt payment of that such amount does did not constitute income described in Sections 856(c)(2)(A) through (H) or 856(c)(3)(A) through (I) of the Code (“Qualifying Income (as defined belowIncome”), as determined by the Company’s independent accountants of certified public accountants, plus (2) in the event the Company receives either (each such annual amount, the “Annual Payment Amount”). If the Annual Payment Amount (as determined by the independent accountants of A) a letter from the Company’s counsel indicating that the Company has received a ruling from the IRS described in Section 7.4(b)(ii) for or (B) an opinion from the taxable year Company’s outside counsel as described in which Section 7.4(b)(ii), an amount equal to the Section 8.2 Amount first becomes owed is Parent Termination Fee, plus the Parent Expenses and the Parent Recovery Costs less than the Section 8.2 Amountamount payable under clause (1) above. To secure Parent’s obligation to pay these amounts, Parent shall pay only deposit into escrow an amount in cash equal to the Annual Payment Amount in that taxable yearParent Termination Fee, plus any Parent Expenses and any excess portion the Parent Recovery Costs with an escrow agent selected by Parent and on such terms (subject to Section 7.4(b)) as shall be mutually agreed upon by the Company, Parent and the escrow agent. The payment or deposit into escrow of the Parent Termination Fee, plus the Parent Expenses and the Parent Recovery Costs pursuant to this Section 8.2 Amount 7.4(a) shall be payable made at the time Parent is obligated to pay the Company such amount pursuant to Section 7.3 by wire transfer. (b) The escrow agreement shall provide that the Parent Termination Fee, plus the Parent Expenses and the Parent Recovery Costs in subsequent taxable years only to the extent provided below. The Company escrow or any portion thereof 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 not be released to the Company in that taxable year, which amount shall be unless the Annual Payment Amount for that taxable year set forth in escrow agent receives any one or combination of the following: (i) a letter from the Company’s independent accountants. Subject to satisfaction of certified public accountants indicating the conditions set forth in the immediately preceding sentence, there is no limitation on the number of payments maximum amount that can be made from Parent paid by the escrow agent to the Company prior to the sixth anniversary of the date of this Agreement. In no event shall without causing 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 fail 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 meet the requirements imposed by Section of Sections 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 Code determined as if the payment 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 such amount did not constitute Qualifying Income or a subsequent letter from the date of this Agreement if Company’s accountants revising that amount, in which case the Company delivers escrow agent shall release such amount to Parent a copy of the Company, or (ii) a letter from outside the Company’s counsel which states indicating that the Company has received a private letter ruling from the IRS which holds holding that its the receipt of a payment by the Company of the Section 8.2 Amount constitutes Parent Termination Fee, plus the Parent Expenses and the Parent Recovery Costs should either constitute Qualifying Income or is excludible should be excluded from gross income for purposes within the meaning of Sections 856(c)(2) and (3) of the REIT Code (or alternatively, indicating that the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Parent Termination Fee, plus the Parent Expenses and the Parent Recovery Costs should either constitute Qualifying Income Requirementsor should be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Parent Termination Fee, plus the Parent Expenses and the Parent Recovery Costs to the Company. Parent agrees to amend this Section 7.4 at the request of the Company in order to (x) maximize the portion of the Parent Termination Fee, plus the Parent Expenses and the Parent Recovery Costs that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in this Section 7.4(b) or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in this Section 7.4(b). The escrow agreement shall also provide that any portion of the Parent Termination Fee, plus the Parent Expenses and the Parent Recovery Costs held in escrow for five years shall be released by the escrow agent to Parent. Parent shall not bear any cost of or have liability resulting from the escrow agreement.

Payment of Amount or Expense. The maximum amount (a) In the event that the Company can receive is obligated to pay Parent the Company Termination Fee, plus any costs and expenses (including reasonable attorney’s fees and disbursements) that shall be paid by the Company to Parent in its taxable year connection with a lawsuit commenced by Parent which results in which occurs a final, non-appealable judgment against the event giving rise to liability Company for the Break-up Company Termination Fee pursuant to Section 8.2(b) or any fee pursuant portion thereof, then the Company shall pay Parent its costs and expenses (in connection with such suit, together with interest on the Company Termination Fee at the “prime rate” as published in The Wall Street Journal, Eastern Edition, in effect on the date such payment was required to Section 8.2(cbe made through the date of payment (calculated daily on the basis of a year of 365 days and the actual number of days elapsed, without compounding) (collectively, the “Section 8.2 AmountRecovery Costs”). The Company shall pay to Parent from the Company Termination Fee, plus the Recovery Costs deposited into escrow in accordance with the next sentence, an amount equal to the lesser of (i) shall be the Company Termination Fee, plus the Company Recovery Costs and (ii) the sum of (1) 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 paid 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 without causing Parent to the Company prior fail 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 meet the requirements imposed by Section of Sections 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 Code determined as if the Company delivers to payment of such amount did not constitute Disqualifying Income, as determined by Parent’s independent certified public accountants, plus (2) in the event Parent a copy of receives either (X) a letter from outside Parent’s counsel which states indicating that the Company Parent has received a private letter ruling from the IRS which holds described in Section 8.4(b)(ii) or (B) an opinion from Parent’s outside counsel as described in Section 8.4(b)(ii), an amount equal to the Company Termination Fee, plus the Recovery Costs less the amount payable under clause (1) above. To secure the Company’s obligation to pay these amounts, the Company shall deposit into escrow an amount in cash equal to the Company Termination Fee, plus the Recovery Costs with an escrow agent selected by the Company and on such terms (subject to Section 8.4(d)) as shall be mutually agreed upon by the Company, Parent and the escrow agent. The payment or deposit into escrow of the Company Termination Fee, plus the Recovery Costs pursuant to this Section 8.4(c) shall be made at the time the Company is obligated to pay Parent such amount pursuant to Section 8.3 by wire transfer. (b) The escrow agreement shall provide that its receipt the Company Termination Fee, plus the Recovery Costs in escrow or any portion thereof shall not be released to Parent unless the escrow agent receives any one or combination of the following: (i) a letter from the Parent’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to Parent without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2)(A) through (H) or 856(c)(3)(A) through (I) of the Section 8.2 Amount constitutes Code (“Qualifying Income”) or a subsequent letter from Parent’s accountants revising that amount, in which case the escrow agent shall release such amount to Parent, or (ii) a letter from Parent’s counsel indicating that Parent received a ruling from the IRS holding that the receipt by Parent of the Company Termination Fee plus the Recovery Costs should either constitute Qualifying Income or is excludible should be excluded from gross income for purposes within the meaning of the REIT Income Requirements.Sections 856(c)(2) and

Payment of Amount or Expense. The maximum amount (a) In the event that the Company can receive is obligated to pay Parent the Company Termination Fee, plus any costs and expenses (including reasonable attorney’s fees and disbursements) that shall be paid by the Company to Parent in its taxable year connection with a lawsuit commenced by Parent which results in which occurs a final, non-appealable judgment against the event giving rise to liability Company for the Break-up Company Termination Fee pursuant to Section 8.2(b) or any fee pursuant portion thereof, then the Company shall pay Parent its costs and expenses (in connection with such suit, together with interest on the Company Termination Fee at the “prime rate” as published in The Wall Street Journal, Eastern Edition, in effect on the date such payment was required to Section 8.2(cbe made through the date of payment (calculated daily on the basis of a year of 365 days and the actual number of days elapsed, without compounding) (collectively, the “Section 8.2 AmountRecovery Costs”). The Company shall pay to Parent from the Company Termination Fee, plus the Recovery Costs deposited into escrow in accordance with the next sentence, an amount equal to the lesser of (i) shall be the Company Termination Fee, plus the Company Recovery Costs and (ii) the sum of (1) 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 paid 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 without causing Parent to the Company prior fail 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 meet the requirements imposed by Section of Sections 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 Code determined as if the Company delivers to payment of such amount did not constitute Disqualifying Income, as determined by Parent’s independent certified public accountants, plus (2) in the event Parent a copy of receives either (X) a letter from outside Parent’s counsel which states indicating that the Company Parent has received a private letter ruling from the IRS which holds described in Section 8.4(b)(ii) or (B) an opinion from Parent’s outside counsel as described in Section 8.4(b)(ii), an amount equal to the Company Termination Fee, plus the Recovery Costs less the amount payable under clause (1) above. To secure the Company’s obligation to pay these amounts, the Company shall deposit into escrow an amount in cash equal to the Company Termination Fee, plus the Recovery Costs with an escrow agent selected by the Company and on such terms (subject to Section 8.4(d)) as shall be mutually agreed upon by the Company, Parent and the escrow agent. The payment or deposit into escrow of the Company Termination Fee, plus the Recovery Costs pursuant to this Section 8.4(c) shall be made at the time the Company is obligated to pay Parent such amount pursuant to Section 8.3 by wire transfer. (b) The escrow agreement shall provide that its receipt the Company Termination Fee, plus the Recovery Costs in escrow or any portion thereof shall not be released to Parent unless the escrow agent receives any one or combination of the following: (i) a letter from the Parent’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to Parent without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2)(A) through (H) or 856(c)(3)(A) through (I) of the Section 8.2 Amount constitutes Code (“Qualifying Income”) or a subsequent letter from Parent’s accountants revising that amount, in which case the escrow agent shall release such amount to Parent, or (ii) a letter from Parent’s counsel indicating that Parent received a ruling from the IRS holding that the receipt by Parent of the Company Termination Fee plus the Recovery Costs should either constitute Qualifying Income or is excludible should be excluded from gross income for purposes within the meaning of Sections 856(c)(2) and (3) of the REIT Code (or alternatively, indicating that Parent’s outside counsel has rendered a legal opinion to the effect that the receipt by Parent of the Company Termination Fee, plus the Recovery Costs should either constitute Qualifying Income Requirementsor should be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Company Termination Fee, plus the Recovery Costs to Parent. The Company agrees to amend this Section 8.4 at the request of Parent in order to (x) maximize the portion of the Company Termination Fee, plus the Recovery Costs that may be distributed to Parent hereunder without causing Parent to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve Parent’s chances of securing a favorable ruling described in this Section 8.4(b) or (z) assist Parent in obtaining a favorable legal opinion from its outside counsel as described in this Section 8.4(b). The escrow agreement shall also provide that any portion of the Company Termination Fee, plus the Recovery Costs held in escrow for five years shall be released by the escrow agent to the Company. The Company shall not be a party to such escrow agreement and shall not bear any cost of or have liability resulting from the escrow agreement.

Payment of Amount or Expense. The maximum amount ‌ (a) In the event that the Company can receive in its taxable year in which occurs Purchaser is obligated to pay the event giving rise to liability for the Break-up Purchaser Termination Fee pursuant to Section 8.2(b) or any fee pursuant to Section 8.2(c6.3(c) (collectively, the “Section 8.2 6.3 Amount”), the Purchaser shall pay to the REIT from the applicable Section 6.3 Amount deposited into escrow, if any, in accordance with the next sentence, an amount equal to the lesser of (A) shall be the Section 6.3 Amount and (B) the maximum amount that the Company can receive in that taxable year without failing be paid to the REIT Income Requirements without causing the REIT to fail to qualify as a “real estate investment trust” within the meaning of the Tax Act in the taxation year of the REIT of such payment (as defined below), determined as if the receipt of that amount does not constitute Qualifying Income (as defined below“Relevant Taxation Year”), as determined by the REIT’s independent certified public accountants of or outside counsel. To secure the Company (each such annual amountPurchaser’s obligation to pay these amounts, the “Annual Payment Amount”). If Purchaser shall deposit into escrow an amount in cash equal to the Annual Payment Section 6.3 Amount (as determined with an escrow agent selected by the independent accountants of REIT and on such terms (subject to Section 6.4(b)) as shall be mutually agreed upon by the Company) for REIT, the taxable year Purchaser and the escrow agent as reflected in which an escrow agreement among such Parties, provided that the Section 8.2 Amount first becomes owed is less than payment or deposit into escrow shall be at the Section 8.2 Amount, Parent shall pay only the Annual Payment Amount in that taxable year, and any excess portion REIT’s option. The payment or deposit into‌ escrow of the Section 8.2 6.3 Amount pursuant to this Section 6.4(a) shall be payable made at the time the Purchaser is obligated to pay the REIT such amount pursuant to Section 6.3(c) by wire transfer of same day funds. (b) The escrow agreement shall provide that the Section 6.3 Amount in subsequent taxable years only escrow or any portion thereof shall not be released to the extent provided below. The Company shall send a letter to Parent during each subsequent taxable year indicating REIT unless 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 escrow agent receives a letter from the CompanyREIT’s independent accountants. Subject to satisfaction of certified public accountants or outside counsel indicating the conditions set forth in the immediately preceding sentence, there is no limitation on the number of payments maximum amount that can be made from Parent paid by the escrow agent to the Company prior REIT without causing the REIT to the sixth anniversary of the date of this Agreement. In no event shall the Company be entitled fail 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 “real estate investment trust” within the meaning of the CodeTax Act in the Relevant Taxation Year, in which case the escrow agent shall release such amount to the REIT. The remainder of Purchaser shall be deemed to have satisfied its obligations pursuant to this Section 8.4 notwithstanding, Parent shall pay the Company any unpaid portion of 6.4 so long as it deposits into escrow the Section 8.2 Amount at 6.3 Amount, notwithstanding any time prior delay or reduction in payment to six years from the date of this Agreement if the Company delivers REIT, and shall have no further liability with respect to Parent a copy of a letter from outside counsel which states that the Company has received a private letter ruling from the IRS which holds that its receipt of a payment of the Section 8.2 Amount constitutes Qualifying Income or is excludible from gross income for purposes of the REIT Income Requirements.6.3