Common use of Characterization of and Adjustments to Payments Clause in Contracts

Characterization of and Adjustments to Payments. (a) For all Tax purposes, the Parties agree to treat (and to cause their respective Affiliates to treat) (i) any payment required by this Agreement (other than payments with respect to interest accruing after the Acquisition Date) as either a contribution by Ventas to SpinCo or a distribution by SpinCo to Ventas, as the case may be, occurring immediately prior to the Acquisition or as a payment of an assumed or retained Liability and (ii) any payment of non-federal Taxes by or to a Taxing Authority or any payment of interest as taxable or deductible, as the case may be, to the Party entitled under this Agreement to retain such payment or required under this Agreement to make such payment, in each case, except as otherwise required by applicable Law. (b) Any indemnification payment under this Article V and under Article IV of the Separation and Distribution Agreement shall be increased to take into account any inclusion in income of the Indemnified Party arising from the receipt of such indemnity payment (including any additional REIT Taxes or additional amount required to be distributed under Section 857(a) of the Code resulting therefrom) and shall be decreased to take into account any reduction in income of the Indemnified Party arising from such indemnified Liability (including any reduction in REIT Taxes or reduction in the amount required to be distributed under Section 857(a) of the Code resulting therefrom). For purposes hereof, any adjustment to an indemnification payment on account of Taxes (or REIT Taxes) shall be determined (i) using the highest marginal rates in effect for Ventas, in the case of an Indemnified Party that is a member of the Ventas Group, or for SpinCo, in the case of an Indemnified Party that is a member of the SpinCo Group, at the time of the determination and (ii) assuming that the Indemnified Party will be liable for Taxes at such rate and has no Tax Attributes at the time of the determination.

Characterization of and Adjustments to Payments. (a) For all Tax purposes, the Parties Parent and Spinco agree to treat (and to cause their respective Affiliates to treat) (i) any payment required by this Agreement (other than payments with respect to interest accruing after the Acquisition Closing Date) as either a contribution by Ventas Parent to SpinCo Spinco or a distribution by SpinCo Spinco to VentasParent, as the case may be, occurring immediately prior to the Acquisition or as a payment of an assumed or retained Liability Closing Date and (ii) any payment of non-federal Taxes by or to a Taxing Authority or any payment of interest as taxable or deductible, as the case may be, to the Party entitled under this Agreement to retain such payment or required under this Agreement to make such payment, in each case, either case except as otherwise required by applicable Law. (b) Any indemnification indemnity payment under this Article V and under Article IV III shall be decreased to take into account an amount equal to the present value of any Tax Benefit made allowable to the Separation and Distribution Agreement Indemnified Party (which Tax Benefit would not have arisen or been allowable but for such indemnified liability). If Spinco makes an indemnity payment to Parent for Spinco Taxes attributable to a Spinco Disqualifying Action, such indemnity payment shall be increased to take into account any inclusion in income of the Indemnified Party Parent arising from the receipt of such indemnity payment (including any additional REIT Taxes or additional amount required to be distributed under Section 857(a) of the Code resulting therefrom) and shall be decreased to take into account any reduction in income of the Indemnified Party arising from such indemnified Liability (including any reduction in REIT Taxes or reduction in the amount required to be distributed under Section 857(a) of the Code resulting therefrom)payment. For purposes hereof, any adjustment to an indemnification payment on account of Taxes (inclusion, reduction or REIT Taxes) Tax Benefit shall be determined (i) using the highest marginal rates rate in effect for Ventas, in the case of an Indemnified Party that is a member of the Ventas Group, or for SpinCo, in the case of an Indemnified Party that is a member of the SpinCo Group, at the time of the determination and determination, (ii) assuming that the Indemnified Party will be liable for Taxes at such rate and has no Tax Attributes at the time of the determination, and (iii) assuming that any Tax Benefit is used at the earliest date allowable by applicable Law. The present value referred to in the preceding sentence shall be determined using a discount rate equal to the mid term applicable federal rate in effect at the time of the payment of the relevant indemnity payment.

Characterization of and Adjustments to Payments. (a) For all Tax purposes, the Parties Parent and Xxxxxxxx Beach Holding agree to treat (and to cause their respective Affiliates to treat) (i) any payment required by this Agreement (other than payments with respect of expenses, interest pursuant to interest accruing after Section 8.3, and any item described in (ii) below) as a payment of an assumed or retained liability, as the Acquisition Date) case may be, or as either a contribution by Ventas Parent to SpinCo Xxxxxxxx Beach Holding or a distribution by SpinCo Xxxxxxxx Beach Holding to VentasParent, as the case may be, occurring immediately prior to the Acquisition or as a payment of an assumed or retained Liability Distribution Date and (ii) any payment (x) of non-federal Taxes by to or to Refunds received from a Taxing Authority which either gives rise to a tax deduction or any payment taxable income, or (y) of interest interest, as tax deductible, or includible in, taxable or deductibleincome, as the case may be, to the Party entitled under this Agreement to retain such payment or required under this Agreement to make such payment, in each either case, except as otherwise required by applicable Law. (b) Any indemnification indemnity payment under this Article V and under Article IV of 3 or the Separation and Distribution Agreement shall be increased to take into account any inclusion in income of the Indemnified Party arising from the receipt of such indemnity payment (including any additional REIT Taxes or additional amount required to be distributed under Section 857(a) of the Code resulting therefrom) and shall be decreased to take into account any reduction in income of the Indemnified Party arising from the payment by the Indemnified Party of such indemnified Liability (including any reduction in REIT Taxes or reduction in the amount required to be distributed under Section 857(a) of the Code resulting therefrom)liability. For purposes hereof, any adjustment to an indemnification payment on account of Taxes (inclusion or REIT Taxes) reduction shall be determined (i) using the highest applicable marginal rates U.S. federal corporate income tax rate in effect for Ventas, in the case of an Indemnified Party that is a member of the Ventas Group, or for SpinCo, in the case of an Indemnified Party that is a member of the SpinCo Group, at the time of the determination (and excluding any state income tax effect of such inclusion or reduction) and (ii) assuming that the Indemnified Party will be liable for Taxes at such rate rate, has sufficient taxable income to use any tax deduction, and has no Tax Attributes at the time of the determination.

Characterization of and Adjustments to Payments. (a) For all Tax purposes, other than for purposes of Section 355(g) in accordance with the Parties IRS Ruling, Penn and GLPI agree to treat (and or cause to cause their respective Affiliates to treat) be treated (i) any payment required by this Agreement (other than payments with respect to any payment of interest accruing after the Acquisition Closing Date) as either a contribution by Ventas Penn to SpinCo GLPI or a distribution by SpinCo GLPI to VentasPenn, as the case may be, occurring immediately prior to the Acquisition or as a payment of an assumed or retained Liability Closing Date and (ii) any payment of non-federal Taxes by or to a Taxing Authority or any payment of interest as taxable or deductible, as the case may be, to the Party entitled under this Agreement to retain such payment or required under this Agreement to make such payment, in each case, either case except as otherwise required by applicable Law. (b) Any indemnification indemnity payment under this Article V and under Article IV of the Separation and Distribution Agreement III shall be increased to take into account any inclusion in income of the Indemnified Party (or an Affiliate thereof) arising from the receipt of such relevant indemnity payment (including any additional REIT Taxes or additional amount required to be distributed under Section 857(a) of the Code resulting therefrom) and shall be decreased to take into account any reduction in income of the Indemnified Party (or an Affiliate thereof) arising from such indemnified Liability (including any reduction in REIT Taxes the incurrence or reduction in the amount required to be distributed under Section 857(a) payment of the Code resulting therefrom)relevant indemnified item. For purposes hereofof this Section 3.03(b), any adjustment to an indemnification payment on account of Taxes (inclusion or REIT Taxes) reduction, as applicable, shall be determined (i) using the highest marginal rates in effect for Ventas, in the case of an Indemnified Party that is a member of the Ventas Group, or for SpinCo, in the case of an Indemnified Party that is a member of the SpinCo Group, at the time of the determination determination, and (ii) assuming that the Indemnified Party will be liable for such Taxes at such rate and has no Tax Attributes at the time of the determination.

Characterization of and Adjustments to Payments. (a) For all Tax purposes, the Parties Xxxxxxx and Newco agree to treat (and to cause their respective Affiliates to treat) (i) any payment required by this Agreement (other than payments with respect to interest accruing after the Acquisition Closing Date) as either a contribution by Ventas Xxxxxxx to SpinCo Newco or a distribution by SpinCo Newco to VentasXxxxxxx, as the case may be, occurring immediately prior to the Acquisition or as a payment of an assumed or retained Liability and (ii) any payment of non-federal Taxes by or to a Taxing Authority or any payment of interest as taxable or deductible, as the case may be, to the Party entitled under this Agreement to retain such payment or required under this Agreement to make such payment, in each case, except as otherwise required by applicable LawClosing Date. (b) Any indemnification Notwithstanding the foregoing, any payment under made pursuant to Article III of this Article V and under Article IV of the Separation and Distribution Agreement shall be (i) decreased to take into account the present value of any Tax Benefit made allowable to the Indemnified Party (or any of its affiliates) arising from the incurrence or payment of the relevant indemnified item (which Tax Benefit would not have arisen or been allowable but for such indemnified item), and (ii) increased to take into account any inclusion in income Tax Cost of the Indemnified Party (or any of its affiliates) arising from the receipt of such the relevant indemnity payment (including any additional REIT Taxes or additional amount required to be distributed under Section 857(a) of the Code resulting therefrom) and shall be decreased to take but taking into account any reduction in income the present value of all correlative Tax Benefits resulting from the Indemnified Party arising from payment of such indemnified Liability (including any reduction in REIT Taxes or reduction in the amount required to be distributed under Section 857(a) of the Code resulting therefromTax Cost). For purposes hereofof this Section 3.03(b), any adjustment to an indemnification payment on account of Taxes (Tax Benefit or REIT Taxes) Tax Cost, as applicable, shall be determined (i) using the highest marginal rates in effect for Ventas, in the case of an Indemnified Party that is a member of the Ventas Group, or for SpinCo, in the case of an Indemnified Party that is a member of the SpinCo Group, at the time of the determination and determination, (ii) assuming that the Indemnified Party will be liable for such Taxes at such rate and has no Tax Attributes at the time of the determination, and (iii) assuming that any such Tax Benefit is used at the earliest date allowable by applicable Law. The present value referred to in the first sentence of this Section 3.03(b) shall be determined using a discount rate equal to the mid term applicable federal rate in effect at the time of the payment of the relevant indemnity payment.

Characterization of and Adjustments to Payments. (a) For all Tax purposes, the Parties agree to treat (and to cause their respective Affiliates to treat) (i) any payment required by this Agreement (other than (x) payments with respect to interest accruing after the Acquisition DateClosing Date and (y) indemnification payments required as a result of a breach of the covenants set forth in Section 9.01 or Section 9.02) as either a contribution by Ventas SPG LP to SpinCo WPG LP or a distribution by SpinCo WPG LP to VentasSPG LP, as the case may be, occurring immediately prior to the Acquisition first SPG LP Distribution or as a payment of an assumed or retained Liability and (ii) any payment of non-federal Taxes by or to a Taxing Authority or any payment of interest as taxable or deductible, as the case may be, to the Party entitled under this Agreement to retain such payment or required under this Agreement to make such payment, in each case, except as otherwise required by applicable Law. (b) Any indemnification payment under this Article V and under Article IV of the Separation and Distribution Agreement shall be increased to take into account any inclusion in income of the Indemnified Party arising from the receipt of such indemnity payment (including any additional REIT Taxes or additional amount required to be distributed under Section 857(a) of the Code resulting therefrom) and shall be decreased to take into account any reduction in income of the Indemnified Party arising from such indemnified Liability (including any reduction in REIT Taxes or reduction in the amount required to be distributed under Section 857(a) of the Code resulting therefrom). For purposes hereof, any adjustment to an indemnification payment on account of Taxes (or REIT Taxes) shall be determined (i) using the highest marginal rates in effect for VentasSPG, in the case of an Indemnified Party that is a member of the Ventas SPG Group, or for SpinCoWPG, in the case of an Indemnified Party that is a member of the SpinCo WPG Group, at the time of the determination and (ii) assuming that the Indemnified Party will be liable for Taxes at such rate and has no Tax Attributes at the time of the determination.

Characterization of and Adjustments to Payments. (a) For all Tax purposes, the Parties agree to treat (and to cause their respective Affiliates to treat) (i) any payment required by this Agreement (other than payments with respect to interest accruing after the Acquisition Distribution Date) as either a contribution by Ventas Parent to SpinCo or a distribution by SpinCo to VentasParent, as the case may be, occurring immediately prior to the Acquisition Distribution or as a payment of an assumed or retained Liability and (ii) any payment of non-federal Taxes by or to a Taxing Authority or any payment of interest as taxable or deductible, as the case may be, to the Party entitled under this Agreement to retain such payment or required under this Agreement to make such payment, in each case, except as otherwise required by applicable Law. (b) Any indemnification payment under this Article V and under Article IV VI of the Separation and Distribution Agreement shall be increased to take into account any inclusion in taxable income of the Indemnified Party arising from the receipt of such indemnity payment (including any additional REIT Taxes or additional amount required to be distributed under Section 857(a) of the Code resulting therefrom) and shall be decreased to take into account any reduction in taxable income of the Indemnified Party arising from such indemnified Liability (including any reduction in REIT Taxes or reduction in the amount required to be distributed under Section 857(a) of the Code resulting therefrom)Liability. For purposes hereof, any adjustment to an indemnification payment on account of Taxes (or REIT Taxes) shall be determined (i) using the highest marginal rates in effect for VentasParent, in the case of an Indemnified Party that is a member of the Ventas Parent Group, or for SpinCo, in the case of an Indemnified Party that is a member of the SpinCo Group, at the time of the determination and (ii) assuming that the Indemnified Party will be liable for Taxes at such rate and has no Tax Attributes at the time of the determination.

Characterization of and Adjustments to Payments. (a) For all Tax purposes, the Parties Rayonier and SpinCo agree to treat (and to cause their respective Affiliates to treat) (i) any payment required by this Agreement (other than payments with respect to interest accruing after the Acquisition Closing Date) as either a contribution by Ventas Rayonier to SpinCo or a distribution by SpinCo to VentasRayonier, as the case may be, occurring immediately prior to the Acquisition Closing Date or as a payment of an assumed or retained Liability liability and (ii) any payment of non-federal Taxes by or to a Taxing Authority or any payment of interest as taxable or deductible, as the case may be, to the Party entitled under this Agreement to retain such payment or required under this Agreement to make such payment, in each case, either case except as otherwise required by applicable Law. (b) Any indemnification payment under this Article V and under Article IV of the Separation and Distribution Agreement shall be increased to take into account any inclusion in income of the Indemnified Party arising from the receipt of such indemnity payment (including any additional REIT Taxes or additional amount required to be distributed under Section 857(a) of the Code resulting therefrom) and shall be decreased to take into account any reduction in income of the Indemnified Party arising from such indemnified Liability (including any reduction in REIT Taxes or reduction liability, except, in the amount required case of an increase, to be distributed under Section 857(athe extent the Indemnified Party expressly waives such right to receive an increased indemnification payment (or portion thereof) of the Code resulting therefrom)in writing. For purposes hereof, any adjustment to an indemnification payment on account of Taxes (inclusion or REIT Taxes) reduction shall be determined (i) using the highest marginal rates in effect for Ventas, in the case of an Indemnified Party that is a member of the Ventas Group, or for SpinCo, in the case of an Indemnified Party that is a member of the SpinCo Group, at the time of the determination and (ii) assuming that the Indemnified Party will be liable for Taxes at such rate and has no Tax Attributes at the time of the determination.