Common use of Payments Subject to Section 409A and Other Applicable Law Clause in Contracts

Payments Subject to Section 409A and Other Applicable Law. (i) Notwithstanding anything herein to the contrary, the Executive shall not be entitled to any payment pursuant to this Section 5 prior to the earliest date permitted under Section 409A of the Code, and applicable Treasury regulations thereunder. To the extent any payment pursuant to this Section 5 is required to be delayed six months pursuant to the special rules of Section 409A of the Code related to “specified employees,” each affected payment shall be delayed until six months after the Executive’s termination of employment, and, unless provided otherwise, with the first such payment being a lump sum equal to the aggregate payments the Executive would have received during such six-month period if no payment delay had been imposed. Any payments or distributions delayed in accordance with the prior sentence shall be paid to the Executive on the first day of the seventh month following the Executive’s termination of employment. (ii) Notwithstanding any other provision contained herein, to the extent any payments or distributions due to the Executive upon termination of his employment under this Agreement are subject to Section 409A of the Code a termination of the Executive’s employment shall be interpreted in a manner that is consistent with the definition of a “separation from service” under Section 409A of the Code and the applicable Treasury regulations thereunder. Notwithstanding anything elsewhere to the contrary, the Executive shall have no duties following any termination of his employment with MFA that are inconsistent with his having a “separation from service” for purposes of Section 409A of the Code and any regulations thereunder. (iii) In the case of any amounts that are payable to the Executive under this Agreement in the form of installment payments, the Executive’s right to receive such payments shall be treated as a right to receive a series of separate payments under Treas. Reg. §1.409A-2(b)(2)(iii). (iv) Notwithstanding anything herein to the contrary, in the event that the reimbursements provided pursuant to Section 5(a)(iii) or Section 5(g)(iii) would subject the Executive or the Company to adverse tax consequences under Section 105(h) of the Code or any tax penalties, then the parties shall enter into an economically consistent arrangement that does not cause either party to incur such adverse tax consequences or penalties.

Payments Subject to Section 409A and Other Applicable Law. (i) Notwithstanding anything herein to the contrary, the Executive shall not be entitled to any payment pursuant to this Section 5 1 prior to the earliest date permitted under Section 409A of the Code, and applicable Treasury regulations thereunder. To the extent any payment pursuant to this Section 5 1 is required to be delayed six months pursuant to the special rules of Section 409A of the Code related to “specified employees,” each affected payment shall be delayed until six months after the Executive’s termination of employment, and, unless provided otherwise, with the first such payment being a lump sum equal to the aggregate payments the Executive would have received during such six-month period if no payment delay had been imposed. Any payments or distributions delayed in accordance with the prior sentence shall be paid to the Executive on the first day of the seventh month following the Executive’s termination of employment. If Executive dies during the postponement period prior to payment, the amounts delayed shall be paid within 60 days after the date of Executive’s death. (ii) Notwithstanding any other provision contained herein, to the extent any payments or distributions due to the Executive upon termination of his employment under this Agreement are subject to Section 409A of the Code a termination of the Executive’s employment shall be interpreted in a manner that is consistent with the definition of a “separation from service” under Section 409A of the Code and the applicable Treasury regulations thereunder. Notwithstanding anything elsewhere to the contrary, the Executive shall have no duties following any termination of his employment with MFA that are inconsistent with his having a “separation from service” for purposes of Section 409A of the Code and any regulations thereunder. (iii) In the case of any amounts that are payable to the Executive under this Agreement in the form of installment payments, the Executive’s right to receive such payments shall be treated as a right to receive a series of separate payments under Treas. Reg. §1.409A-2(b)(2)(iii). (iv) Notwithstanding anything herein to the contrary, in the event that the reimbursements provided pursuant to Section 5(a)(iii) or Section 5(g)(iii1(a)(ii) would subject the Executive or the Company to adverse tax consequences under Section 105(h) of the Code or any tax penalties, then the parties shall enter into an economically consistent arrangement that does not cause either party to incur such adverse tax consequences or penalties.

Payments Subject to Section 409A and Other Applicable Law. (i) i. The Company and Executive intend that this Agreement will be interpreted and administered so that any amount or benefit payable hereunder will be paid or provided in a manner that is either exempt from or compliant with Section 409A, and thus does not incur any income inclusion, additional tax, or interest under Section 409A. ii. Notwithstanding anything herein in this Agreement or elsewhere to the contrary, the Executive shall will not be entitled to any payment or benefit pursuant to this Section 5 prior to the earliest date he is permitted to receive such payment or benefit without incurring income inclusion, additional tax, or interest under Section 409A of the Code, and applicable Treasury regulations thereunder. 409A. To the extent any payment pursuant to this Section 5 or benefit is required to be delayed six months pursuant to the special rules of Section 409A of the Code related to “specified employees,” each affected payment shall and benefit will be delayed until six months after the Executive’s termination of employment, and, unless provided otherwise, with the first such payment being a lump sum equal to the aggregate payments the Executive would have received during such six-month period if no payment delay had been imposed. Any payments or distributions delayed in accordance with the prior sentence shall be paid to the Executive on the first day of the seventh month following the Termination Date or, if earlier, within ten days following the date of Executive’s termination of employmentdeath. (ii) Notwithstanding any other provision contained herein, to the extent any iii. Any installment payments or distributions due to the Executive upon termination of his employment benefits under this Agreement or any other arrangement will be treated as a series of separate payments and benefits for purposes of Section 409A. Executive shall have no duties following the Termination Date that are subject to Section 409A of the Code a termination of the Executive’s employment shall be interpreted in a manner that is consistent inconsistent with the definition of his having had a “separation from service” under Section 409A of on or before the Code and the applicable Treasury regulations thereunderTermination Date. Notwithstanding anything elsewhere to the contraryany other provision contained herein, the Executive shall have no duties following any termination of his employment with MFA that are inconsistent with his having if a “separation from service” Change in Control is not a change in ownership or control as defined for purposes of Section 409A and payment of the Code and any regulations thereunder. (iiiseverance amount in a lump sum would trigger “additional tax” under Section 409A, then the severance amount under Section 5(e)(i) In the case of any amounts that are payable to the Executive under this Agreement shall be paid in the form described in Section 5(b)(i). iv. If Executive is entitled to any reimbursement of installment paymentsexpenses or in-kind benefits that are includable in Executive’s federal gross taxable income, the amount of such expenses reimbursable or in-kind benefits provided in any one calendar year will not affect the expenses eligible for reimbursement or the in-kind benefits to be provided in any other calendar year. Executive’s right to receive such payments shall reimbursement of expenses or in-kind benefits under this Agreement will (x) not be treated subject to liquidation or exchange for another benefit and (y) be made on or before the last day of Executive’s taxable year following the year in which the expense was incurred. v. None of the Company, its affiliates or their respective directors, officers, employees or advisors will be held liable for any taxes, interest or other amounts owed by Executive as a right to receive a series result of separate payments under Treas. Reg. §1.409A-2(b)(2)(iii). the application of Section 409A or otherwise, provided (iv) Notwithstanding anything herein to the contrary, in the event case of the Company only) that the reimbursements provided pursuant to Section 5(a)(iii) or Section 5(g)(iii) would subject Company has complied with the Executive or provisions of this Agreement, and of any other applicable Company Arrangement, concerning the Company to adverse tax consequences under Section 105(h) timing of the Code or any tax penalties, then the parties shall enter into an economically consistent arrangement that does not cause either party to incur such adverse tax consequences or penaltiespayments and benefits.

Payments Subject to Section 409A and Other Applicable Law. i. This Agreement and all payments hereunder (iincluding payments pursuant to this Section 5) are intended to comply with or be exempt from Section 409A of the Code and applicable Treasury regulations thereunder; provided that, MFA shall have no liability for any taxes or penalties incurred by the Executive pursuant to Section 409A. Notwithstanding anything herein to the contrary, the Executive shall not be entitled to any payment pursuant to this Section 5 prior to the earliest date permitted under Section 409A of the Code, and applicable Treasury regulations thereunder. To the extent any payment pursuant to this Section 5 is required to be delayed six months pursuant to the special rules of Section 409A of the Code related to “specified employees,” each affected payment shall be delayed until six months after the Executive’s termination of employment, and, unless provided otherwise, with the first such payment being a lump sum equal to the aggregate payments the Executive would have received during such six-month period if no payment delay had been imposed. Any payments or distributions delayed in accordance with the prior sentence shall be paid to the Executive on the first day of the seventh month following the Executive’s termination of employment. If the Executive dies during the postponement period prior to payment, the amounts delayed shall be paid within 60 days after the date of the Executive’s death. (ii) . Notwithstanding any other provision contained herein, to the extent any payments or distributions due to the Executive upon termination of his employment under this Agreement are subject to Section 409A of the Code Code, a termination of the Executive’s employment shall be interpreted in a manner that is consistent with the definition of a “separation from service” under Section 409A of the Code and the applicable Treasury regulations thereunder. Notwithstanding anything elsewhere to the contrary, the Executive shall have no duties following any termination of his employment with MFA that are inconsistent with his having a “separation from service” for purposes of Section 409A of the Code and any regulations thereunder. (iii. With respect to the lump sum amounts payable in connection with a Change of Control set forth in Section 5(a)(i) and Section 5(f)(i), such amounts shall be paid in installments as described in Section 5(a)(i) and Section 5(c)(i) as though a Change of Control had not occurred, if such Change of Control does not constitute a “change in control event” for purposes of Section 409A of the Code or if otherwise required by Section 409A of the Code. iv. In the case of any amounts that are payable to the Executive under this Agreement in the form of installment payments, the Executive’s right to receive such payments shall be treated as a right to receive a series of separate payments under Treas. Reg. §1.409A-2(b)(2)(iii). (iv) v. Notwithstanding anything herein to the contrary, in the event that the reimbursements provided pursuant to Section 5(a)(iii) or Section 5(g)(iii5(f)(iii) would subject the Executive or the Company to adverse tax consequences under Section 105(h) of the Code or any tax penalties, then the parties shall enter into an economically consistent arrangement that does not cause either party to incur such adverse tax consequences or penalties.

Payments Subject to Section 409A and Other Applicable Law. (i) Notwithstanding anything herein to the contrary, the Executive shall not be entitled to any payment pursuant to this Section 5 prior to the earliest date permitted under Section 409A of the Code, and applicable Treasury regulations thereunder. To the extent any payment pursuant to this Section 5 is required to be delayed six months pursuant to the special rules of Section 409A of the Code related to “specified employees,” each affected payment shall be delayed until six months after the Executive’s termination of employment, and, unless provided otherwise, with the first such payment being a lump sum equal to the aggregate payments the Executive would have received during such six-month period if no payment delay had been imposed. Any payments or distributions delayed in accordance with the prior sentence shall be paid to the Executive on the first day of the seventh month following the Executive’s termination of employment. If the Executive dies during the postponement period prior to payment, the amounts delayed shall be paid within 60 days after the date of the Executive’s death. (ii) Notwithstanding any other provision contained herein, to the extent any payments or distributions due to the Executive upon termination of his employment under this Agreement are subject to Section 409A of the Code a termination of the Executive’s employment shall be interpreted in a manner that is consistent with the definition of a “separation from service” under Section 409A of the Code and the applicable Treasury regulations thereunder. Notwithstanding anything elsewhere to the contrary, the Executive shall have no duties following any termination of his employment with MFA that are inconsistent with his having a “separation from service” for purposes of Section 409A of the Code and any regulations thereunder. (iii) With respect to the lump sum amounts payable in connection with a Change of Control set forth in Section 5(a)(i) and Section 5(g)(i), such amounts shall be paid in installments as described in Section 5(a)(i) and Section 5(c)(i) as though a Change of Control had not occurred, if such Change of Control does not constitute a “change in control event” for purposes of Section 409A of the Code or if otherwise required by Section 409A of the Code. (iv) In the case of any amounts that are payable to the Executive under this Agreement in the form of installment payments, the Executive’s right to receive such payments shall be treated as a right to receive a series of separate payments under Treas. Reg. §1.409A-2(b)(2)(iii). (ivv) Notwithstanding anything herein to the contrary, in the event that the reimbursements provided pursuant to Section 5(a)(iii) ), Section 5(d)(iii), or Section 5(g)(iii) would subject the Executive or the Company to adverse tax consequences under Section 105(h) of the Code or any tax penalties, then the parties shall enter into an economically consistent arrangement that does not cause either party to incur such adverse tax consequences or penalties.

Payments Subject to Section 409A and Other Applicable Law. (i) The Company and Executive intend that this Agreement will be interpreted and administered so that any amount or benefit payable hereunder will be paid or provided in a manner that is either exempt from or compliant with Section 409A of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations and Internal Revenue Service guidance promulgated thereunder (“Section 409A”). (ii) Notwithstanding anything herein to the contrary, the Executive shall will not be entitled to any payment pursuant to this Section 5 prior to the earliest date permitted under Section 409A of the Code, and applicable Treasury regulations thereunder. To the extent any payment pursuant to this Section 5 is required to be delayed six months pursuant to the special rules of Section 409A of the Code related to “specified employees,” each affected payment shall will be delayed until six months after the Executive’s termination of employment, and, unless provided otherwise, with the first such payment being a lump sum equal to the aggregate payments the Executive would have received during such six-month period if no payment delay had been imposed. Any payments or distributions delayed in accordance with the prior sentence shall will be paid to the Executive on the first day of the seventh month following the Executive’s termination of employmentemployment or, if earlier, within ten days following the date of Executive’s death. (iiiii) Notwithstanding any other provision contained herein, to the extent any payments or distributions due to the Executive upon termination of his employment under this Agreement are subject to Section 409A of the Code (i) a termination of the Executive’s employment shall will be interpreted in a manner that is consistent with the definition of a “separation from service” under Section 409A of the Code and the applicable Treasury regulations thereunder. Notwithstanding anything elsewhere to the contrary, the Executive shall have no duties following any termination thereunder and (ii) all such payments will be treated as a series of his employment with MFA that are inconsistent with his having a “separation from service” separate payments for purposes of Section 409A of the Code and any regulations thereunder. (iii) In the case of any amounts that are payable to the Executive under this Agreement in the form of installment payments, the Executive’s right to receive such payments shall be treated as a right to receive a series of separate payments under Treas. Reg. §1.409A-2(b)(2)(iii)Code. (iv) Notwithstanding anything herein If Executive is entitled to any reimbursement of expenses or in-kind benefits that are includable in Executive’s federal gross taxable income, the contrary, amount of such expenses reimbursable or in-kind benefits provided in any one calendar year will not affect the event that the reimbursements provided pursuant to Section 5(a)(iii) or Section 5(g)(iii) would subject the Executive expenses eligible for reimbursement or the Company in-kind benefits to adverse tax consequences be provided in any other calendar year. Executive’s right to reimbursement of expenses or in-kind benefits under Section 105(hthis Agreement will not be subject to liquidation or exchange for another benefit. (v) None of the Code Company, its affiliates or their respective directors, officers, employees or advisors will be held liable for any tax penaltiestaxes, then interest or other amounts owed by Executive as a result of the parties shall enter into an economically consistent arrangement that does not cause either party to incur such adverse tax consequences application of Section 409A or penaltiesotherwise.

Payments Subject to Section 409A and Other Applicable Law. (i) Notwithstanding anything herein to the contrary, the Executive shall not be entitled to any payment pursuant to this Section 5 prior to the earliest date permitted under Section 409A of the Code, and applicable Treasury regulations thereunder. To the extent any payment pursuant to this Section 5 is required to be delayed six months pursuant to the special rules of Section 409A of the Code related to “specified employees,” each affected payment shall be delayed until six months after the Executive’s termination of employment, and, unless provided otherwise, with the first such payment being a lump sum equal to the aggregate payments the Executive would have received during such six-month period if no payment delay had been imposed. Any payments or distributions delayed in accordance with the prior sentence shall be paid to the Executive on the first day of the seventh month following the Executive’s termination of employment. (ii) Notwithstanding any other provision contained herein, to the extent any payments or distributions due to the Executive upon termination of his employment under this Agreement are subject to Section 409A of the Code (i) a termination of the Executive’s employment shall be interpreted in a manner that is consistent with the definition of a “separation from service” under Section 409A of the Code and the applicable Treasury regulations thereunderthereunder and (ii) as applicable, such payments shall be treated as a series of separate payments for purposes of Section 409A of the Code. Notwithstanding anything elsewhere to the contrary, the Executive shall have no duties following any termination of his employment with MFA that are inconsistent with his having a “separation from service” for purposes of Section 409A of the Code and any regulations thereunder. (iii) In the case of any amounts that are payable to the Executive under this Agreement in the form of installment payments, the Executive’s right to receive such payments shall be treated as a right to receive a series of separate payments under Treas. Reg. §1.409A-2(b)(2)(iii). (iv) Notwithstanding anything herein to the contrary, in the event that the reimbursements provided pursuant to Section 5(a)(iii), Section 5(c)(iii) or Section 5(g)(iii5(f)(iii) would subject the Executive or the Company to adverse tax consequences under Section 105(h) of the Code or any tax penalties, then the parties shall enter into an economically consistent arrangement that does not cause either party to incur such adverse tax consequences or penalties.

Payments Subject to Section 409A and Other Applicable Law. (i) i. Notwithstanding anything herein to the contrary, the Executive shall not be entitled to any payment pursuant to this Section 5 2 prior to the earliest date permitted under Section 409A of the Code, and applicable Treasury regulations thereunder. To the extent any payment pursuant to this Section 5 2 is required to be delayed six months pursuant to the special rules of Section 409A of the Code related to “specified employees,” each affected payment shall be delayed until six months after the Executive’s termination of employment, and, unless provided otherwise, with the first such payment being a lump sum equal to the aggregate payments the Executive would have received during such six-month period if no payment delay had been imposed. Any payments or distributions delayed in accordance with the prior sentence shall be paid to the Executive on the first day of the seventh month following the Executive’s termination of employment. If Executive dies during the postponement period prior to payment, the amounts delayed shall be paid within 60 days after the date of Executive’s death. (ii) . Notwithstanding any other provision contained herein, to the extent any payments or distributions due to the Executive upon termination of his employment under this Agreement are subject to Section 409A of the Code a termination of the Executive’s employment shall be interpreted in a manner that is consistent with the definition of a “separation from service” under Section 409A of the Code and the applicable Treasury regulations thereunder. Notwithstanding anything elsewhere to the contrary, the Executive shall have no duties following any termination of his employment with MFA that are inconsistent with his having a “separation from service” for purposes of Section 409A of the Code and any regulations thereunder. (iii) . In the case of any amounts that are payable to the Executive under this Agreement in the form of installment payments, the Executive’s right to receive such payments shall be treated as a right to receive a series of separate payments under Treas. Reg. §1.409A-2(b)(2)(iii). (iv) . Notwithstanding anything herein to the contrary, in the event that the reimbursements provided pursuant to Section 5(a)(iii) or Section 5(g)(iii2(a)(ii) would subject the Executive or the Company to adverse tax consequences under Section 105(h) of the Code or any tax penalties, then the parties shall enter into an economically consistent arrangement that does not cause either party to incur such adverse tax consequences or penalties.

Payments Subject to Section 409A and Other Applicable Law. i. The Company and Executive intend that this Agreement will be interpreted and administered so that any amount or benefit payable hereunder will be paid or provided in a manner that is either exempt from or compliant with Section 409A of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations and Internal Revenue Service guidance promulgated thereunder (i) “Section 409A”), and thus does not incur any income inclusion, “additional tax”, or interest under Section 409A. ii. Notwithstanding anything herein in this Agreement or elsewhere to the contrary, the Executive shall will not be entitled to any payment or benefit pursuant to this Section 5 prior to the earliest date he is permitted to receive such payment or benefit without incurring income inclusion, “additional tax”, or interest under Section 409A of the Code, and applicable Treasury regulations thereunder. 409A. To the extent any payment pursuant to this Section 5 or benefit is required to be delayed six months pursuant to the special rules of Section 409A of the Code related to “specified employees,” each affected payment shall and benefit will be delayed until six months after the Executive’s termination of employment, and, unless provided otherwise, with the first such payment being a lump sum equal to the aggregate payments the Executive would have received during such six-month period if no payment delay had been imposed. Any payments or distributions delayed in accordance with the prior sentence shall be paid to the Executive on the first day of the seventh month following the Termination Date or, if earlier, within ten days following the date of Executive’s termination of employmentdeath. (ii) Notwithstanding any other provision contained herein, to the extent any iii. Any installment payments or distributions due to the Executive upon termination of his employment benefits under this Agreement or any other arrangement will be treated as a series of separate payments and benefits for purposes of Section 409A. Executive shall have no duties following the Termination Date that are subject to Section 409A of the Code a termination of the Executive’s employment shall be interpreted in a manner that is consistent inconsistent with the definition of his having had a “separation from service” under Section 409A of on or before the Code and the applicable Treasury regulations thereunderTermination Date. Notwithstanding anything elsewhere to the contraryany other provision contained herein, the Executive shall have no duties following any termination of his employment with MFA that are inconsistent with his having if a “separation from service” Change in Control is not a change in ownership or control as defined for purposes of Section 409A and payment of the Code and any regulations thereunder. (iiiseverance amount in a lump sum would trigger “additional tax” under Section 409A, then the severance amount under Section 5(e)(i) In the case of any amounts that are payable to the Executive under this Agreement shall be paid in the form described in Section 5(b)(i). iv. If Executive is entitled to any reimbursement of installment paymentsexpenses or in-kind benefits that are includable in Executive’s federal gross taxable income, the amount of such expenses reimbursable or in-kind benefits provided in any one calendar year will not affect the expenses eligible for reimbursement or the in-kind benefits to be provided in any other calendar year. Executive’s right to receive such payments shall reimbursement of expenses or in-kind benefits under this Agreement will (x) not be treated subject to liquidation or exchange for another benefit and (y) be made on or before the last day of Executive’s taxable year following the year in which the expense was incurred. v. None of the Company, its affiliates or their respective directors, officers, employees or advisors will be held liable for any taxes, interest or other amounts owed by Executive as a right to receive a series result of separate payments under Treas. Reg. §1.409A-2(b)(2)(iii). the application of Section 409A or otherwise, provided (iv) Notwithstanding anything herein to the contrary, in the event case of the Company only) that the reimbursements provided pursuant to Section 5(a)(iii) or Section 5(g)(iii) would subject Company has complied with the Executive or provisions of this Agreement, and of any other applicable Company Arrangement, concerning the Company to adverse tax consequences under Section 105(h) timing of the Code or any tax penalties, then the parties shall enter into an economically consistent arrangement that does not cause either party to incur such adverse tax consequences or penaltiespayments and benefits.

Payments Subject to Section 409A and Other Applicable Law. (i) Notwithstanding anything herein to the contrary, the Executive shall not be entitled to any payment pursuant to this Section 5 2 prior to the earliest date permitted under Section 409A of the Code, and applicable Treasury regulations thereunder. To the extent any payment pursuant to this Section 5 2 is required to be delayed six months pursuant to the special rules of Section 409A of the Code related to “specified employees,” each affected payment shall be delayed until six months after the Executive’s termination of employment, and, unless provided otherwise, with the first such payment being a lump sum equal to the aggregate payments the Executive would have received during such six-month period if no payment delay had been imposed. Any payments or distributions delayed in accordance with the prior sentence shall be paid to the Executive on the first day of the seventh month following the Executive’s termination of employment. If Executive dies during the postponement period prior to payment, the amounts delayed shall be paid within 60 days after the date of Executive’s death. (ii) Notwithstanding any other provision contained herein, to the extent any payments or distributions due to the Executive upon termination of his employment under this Agreement are subject to Section 409A of the Code a termination of the Executive’s employment shall be interpreted in a manner that is consistent with the definition of a “separation from service” under Section 409A of the Code and the applicable Treasury regulations thereunder. Notwithstanding anything elsewhere to the contrary, the Executive shall have no duties following any termination of his employment with MFA that are inconsistent with his having a “separation from service” for purposes of Section 409A of the Code and any regulations thereunder. (iii) In the case of any amounts that are payable to the Executive under this Agreement in the form of installment payments, the Executive’s right to receive such payments shall be treated as a right to receive a series of separate payments under Treas. Reg. §1.409A-2(b)(2)(iii). (iv) Notwithstanding anything herein to the contrary, in the event that the reimbursements provided pursuant to Section 5(a)(iii) or Section 5(g)(iii2(a)(ii) would subject the Executive or the Company to adverse tax consequences under Section 105(h) of the Code or any tax penalties, then the parties shall enter into an economically consistent arrangement that does not cause either party to incur such adverse tax consequences or penalties.

Payments Subject to Section 409A and Other Applicable Law. (i) The Company and Executive intend that this Agreement will be interpreted and administered so that any amount or benefit payable hereunder will be paid or provided in a manner that is either exempt from or compliant with Section 409A, and thus does not incur any income inclusion, additional tax, or interest under Section 409A. (ii) Notwithstanding anything herein in this Agreement or elsewhere to the contrary, the Executive shall will not be entitled to any payment or benefit pursuant to this Section 5 prior to the earliest date she is permitted to receive such payment or benefit without incurring income inclusion, additional tax, or interest under Section 409A of the Code, and applicable Treasury regulations thereunder. 409A. To the extent any payment pursuant to this Section 5 or benefit is required to be delayed six months pursuant to the special rules of Section 409A of the Code related to “specified employees,” each affected payment shall and benefit will be delayed until six months after the Executive’s termination of employment, and, unless provided otherwise, with the first such payment being a lump sum equal to the aggregate payments the Executive would have received during such six-month period if no payment delay had been imposed. Any payments or distributions delayed in accordance with the prior sentence shall be paid to the Executive on the first day of the seventh month following the Termination Date or, if earlier, within ten days following the date of Executive’s termination of employmentdeath. (iiiii) Notwithstanding any other provision contained herein, to the extent any Any installment payments or distributions due to the Executive upon termination of his employment benefits under this Agreement or any other arrangement will be treated as a series of separate payments and benefits for purposes of Section 409A. Executive shall have no duties following the Termination Date that are subject to Section 409A of the Code a termination of the Executive’s employment shall be interpreted in a manner that is consistent inconsistent with the definition of her having had a “separation from service” under Section 409A of on or before the Code and the applicable Treasury regulations thereunderTermination Date. Notwithstanding anything elsewhere to the contraryany other provision contained herein, the Executive shall have no duties following any termination of his employment with MFA that are inconsistent with his having if a “separation from service” Change in Control is not a change in ownership or control as defined for purposes of Section 409A and payment of the Code and any regulations thereunder. (iiiseverance amount in a lump sum would trigger “additional tax” under Section 409A, then the severance amount under Section 5(e)(i) In the case of any amounts that are payable to the Executive under this Agreement shall be paid in the form of installment payments, the Executive’s right to receive such payments shall be treated as a right to receive a series of separate payments under Treas. Reg. §1.409A-2(b)(2)(iiidescribed in Section 5(b)(i). (iv) Notwithstanding anything herein If Executive is entitled to any reimbursement of expenses or in-kind benefits that are includable in Executive’s federal gross taxable income, the contraryamount of such expenses reimbursable or in-kind benefits provided in any one calendar year will not affect the expenses eligible for reimbursement or the in-kind benefits to be provided in any other calendar year. Executive’s right to reimbursement of expenses or in-kind benefits under this Agreement will (x) not be subject to liquidation or exchange for another benefit and (y) be made on or before the last day of Executive’s taxable year following the year in which the expense was incurred. (v) None of the Company, its affiliates or their respective directors, officers, employees or advisors will be held liable for any taxes, interest or other amounts owed by Executive as a result of the application of Section 409A or otherwise, provided (in the event case of the Company only) that the reimbursements provided pursuant to Section 5(a)(iii) or Section 5(g)(iii) would subject Company has complied with the Executive or provisions of this Agreement, and of any other applicable Company Arrangement, concerning the Company to adverse tax consequences under Section 105(h) timing of the Code or any tax penalties, then the parties shall enter into an economically consistent arrangement that does not cause either party to incur such adverse tax consequences or penaltiespayments and benefits.

Payments Subject to Section 409A and Other Applicable Law. (i) Notwithstanding anything herein to the contrary, the Executive shall not be entitled to any payment pursuant to this Section 5 prior to the earliest date permitted under Section 409A of the Code, and applicable Treasury regulations thereunder. To the extent any payment pursuant to this Section 5 is required to be delayed six months pursuant to the special rules of Section 409A of the Code related to “specified employees,” each affected payment shall be delayed until six months after the Executive’s termination of employment, and, unless provided otherwise, with the first such payment being a lump sum equal to the aggregate payments the Executive would have received during such six-month period if no payment delay had been imposed. Any payments or distributions delayed in accordance with the prior sentence shall be paid to the Executive on the first day of the seventh month following the Executive’s termination of employment. If the Executive dies during the postponement period prior to payment, the amounts delayed shall be paid within 60 days after the date of the Executive’s death. (ii) Notwithstanding any other provision contained herein, to the extent any payments or distributions due to the Executive upon termination of his employment under this Agreement are subject to Section 409A of the Code Code, a termination of the Executive’s employment shall be interpreted in a manner that is consistent with the definition of a “separation from service” under Section 409A of the Code and the applicable Treasury regulations thereunder. Notwithstanding anything elsewhere to the contrary, the Executive shall have no duties following any termination of his employment with MFA that are inconsistent with his having a “separation from service” for purposes of Section 409A of the Code and any regulations thereunder. (iii) With respect to the lump sum amounts payable in connection with a Change of Control set forth in Section 5(a)(i) and Section 5(g)(i), such amounts shall be paid in installments as described in Section 5(a)(i) and Section 5(c)(i) as though a Change of Control had not occurred, if such Change of Control does not constitute a “change in control event” for purposes of Section 409A of the Code or if otherwise required by Section 409A of the Code. (iv) In the case of any amounts that are payable to the Executive under this Agreement in the form of installment payments, the Executive’s right to receive such payments shall be treated as a right to receive a series of separate payments under Treas. Reg. §1.409A-2(b)(2)(iii). (ivv) Notwithstanding anything herein to the contrary, in the event that the reimbursements provided pursuant to Section 5(a)(iii) ), Section 5(d)(iii), or Section 5(g)(iii) would subject the Executive or the Company to adverse tax consequences under Section 105(h) of the Code or any tax penalties, then the parties shall enter into an economically consistent arrangement that does not cause either party to incur such adverse tax consequences or penalties.

Payments Subject to Section 409A and Other Applicable Law. (i) This Agreement and all payments hereunder (including payments pursuant to this Section 5) are intended to comply with or be exempt from Section 409A of the Code and applicable Treasury regulations thereunder; provided that, MFA shall have no liability for any taxes or penalties incurred by the Executive pursuant to Section 409A. Notwithstanding anything herein to the contrary, the Executive shall not be entitled to any payment pursuant to this Section 5 prior to the earliest date permitted under Section 409A of the Code, and applicable Treasury regulations thereunder. To the extent any payment pursuant to this Section 5 is required to be delayed six months pursuant to the special rules of Section 409A of the Code related to “specified employees,” each affected payment shall be delayed until six months after the Executive’s termination of employment, and, unless provided otherwise, with the first such payment being a lump sum equal to the aggregate payments the Executive would have received during such six-month period if no payment delay had been imposed. Any payments or distributions delayed in accordance with the prior sentence shall be paid to the Executive on the first day of the seventh month following the Executive’s termination of employment. If the Executive dies during the postponement period prior to payment, the amounts delayed shall be paid within 60 days after the date of the Executive’s death. (ii) Notwithstanding any other provision contained herein, to the extent any payments or distributions due to the Executive upon termination of his employment under this Agreement are subject to Section 409A of the Code Code, a termination of the Executive’s employment shall be interpreted in a manner that is consistent with the definition of a “separation from service” under Section 409A of the Code and the applicable Treasury regulations thereunder. Notwithstanding anything elsewhere to the contrary, the Executive shall have no duties following any termination of his employment with MFA that are inconsistent with his having a “separation from service” for purposes of Section 409A of the Code and any regulations thereunder. (iii) With respect to the lump sum amounts payable in connection with a Change of Control set forth in Section 5(a)(i) and Section 5(g)(i), such amounts shall be paid in installments as described in Section 5(a)(i) and Section 5(c)(i) as though a Change of Control had not occurred, if such Change of Control does not constitute a “change in control event” for purposes of Section 409A of the Code or if otherwise required by Section 409A of the Code. (iv) In the case of any amounts that are payable to the Executive under this Agreement in the form of installment payments, the Executive’s right to receive such payments shall be treated as a right to receive a series of separate payments under Treas. Reg. §1.409A-2(b)(2)(iii). (ivv) Notwithstanding anything herein to the contrary, in the event that the reimbursements provided pursuant to Section 5(a)(iii) or Section 5(g)(iii) would subject the Executive or the Company to adverse tax consequences under Section 105(h) of the Code or any tax penalties, then the parties shall enter into an economically consistent arrangement that does not cause either party to incur such adverse tax consequences or penalties.

Payments Subject to Section 409A and Other Applicable Law. (i) The Company and Executive intend that this Agreement will be interpreted and administered so that any amount or benefit payable hereunder will be paid or provided in a manner that is either exempt from or compliant with Section 409A of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations and Internal Revenue Service guidance promulgated thereunder (“Section 409A”), and thus does not incur any income inclusion, “additional tax”, or interest under Section 409A. (ii) Notwithstanding anything herein in this Agreement or elsewhere to the contrary, the Executive shall will not be entitled to any payment or benefit pursuant to this Section 5 prior to the earliest date he is permitted to receive such payment or benefit without incurring income inclusion, “additional tax”, or interest under Section 409A of the Code, and applicable Treasury regulations thereunder. 409A. To the extent any payment pursuant to this Section 5 or benefit is required to be delayed six months pursuant to the special rules of Section 409A of the Code related to “specified employees,” each affected payment shall and benefit will be delayed until six months after the Executive’s termination of employment, and, unless provided otherwise, with the first such payment being a lump sum equal to the aggregate payments the Executive would have received during such six-month period if no payment delay had been imposed. Any payments or distributions delayed in accordance with the prior sentence shall be paid to the Executive on the first day of the seventh month following the Termination Date or, if earlier, within ten days following the date of Executive’s termination of employmentdeath. (iiiii) Notwithstanding any other provision contained herein, to the extent any Any installment payments or distributions due to the Executive upon termination of his employment benefits under this Agreement or any other arrangement will be treated as a series of separate payments and benefits for purposes of Section 409A. Executive shall have no duties following the Termination Date that are subject to Section 409A of the Code a termination of the Executive’s employment shall be interpreted in a manner that is consistent inconsistent with the definition of his having had a “separation from service” under Section 409A of on or before the Code and the applicable Treasury regulations thereunderTermination Date. Notwithstanding anything elsewhere to the contraryany other provision contained herein, the Executive shall have no duties following any termination of his employment with MFA that are inconsistent with his having if a “separation from service” Change in Control is not a change in ownership or control as defined for purposes of Section 409A and payment of the Code and any regulations thereunder. (iiiseverance amount in a lump sum would trigger “additional tax” under Section 409A, then the severance amount under Section 5(e)(i) In the case of any amounts that are payable to the Executive under this Agreement shall be paid in the form of installment payments, the Executive’s right to receive such payments shall be treated as a right to receive a series of separate payments under Treas. Reg. §1.409A-2(b)(2)(iiidescribed in Section 5(b)(i). (iv) Notwithstanding anything herein If Executive is entitled to any reimbursement of expenses or in-kind benefits that are includable in Executive’s federal gross taxable income, the contraryamount of such expenses reimbursable or in-kind benefits provided in any one calendar year will not affect the expenses eligible for reimbursement or the in-kind benefits to be provided in any other calendar year. Executive’s right to reimbursement of expenses or in-kind benefits under this Agreement will (x) not be subject to liquidation or exchange for another benefit and (y) be made on or before the last day of Executive’s taxable year following the year in which the expense was incurred. (v) None of the Company, its affiliates or their respective directors, officers, employees or advisors will be held liable for any taxes, interest or other amounts owed by Executive as a result of the application of Section 409A or otherwise, provided (in the event case of the Company only) that the reimbursements provided pursuant to Section 5(a)(iii) or Section 5(g)(iii) would subject Company has complied with the Executive or provisions of this Agreement, and of any other applicable Company Arrangement, concerning the Company to adverse tax consequences under Section 105(h) timing of the Code or any tax penalties, then the parties shall enter into an economically consistent arrangement that does not cause either party to incur such adverse tax consequences or penaltiespayments and benefits.