Common use of Indemnification Payments to Ventas Clause in Contracts

Indemnification Payments to Ventas. (i) With respect to any period in which Ventas has made or will make an election to be taxed as a REIT, notwithstanding any other provisions in this Agreement or any Ancillary Agreement, any indemnification payments to be made to any member of the Ventas Group pursuant to Section 4.3 or 4.4 or any indemnification payments to be made to any member of the Ventas Group pursuant to any Ancillary Agreement (a “Ventas Indemnity Payment”) for any calendar year shall not exceed the sum of (1) the amount that is determined will not be gross income of Ventas for purposes of the requirements of Sections 856(c)(2) and (3) of the Code for any period in which Ventas has made any election to be taxed as a REIT, with such determination to be set forth in an opinion of outside tax counsel selected by Ventas, which opinion shall be reasonably satisfactory to Ventas, plus (2) such additional amount that is estimated can be paid to Ventas in such taxable year without causing Ventas to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, determined (x) as if the payment of such amount did not constitute Qualifying Income and (y) by taking into account any other payments to Ventas (and any other relevant member of the SpinCo Group) during such taxable year that do not constitute Qualifying Income, which determination shall be (A) made by independent tax accountants to Ventas, and (B) submitted to and approved by Ventas’s outside tax counsel, and (3) in the event that Ventas receives a ruling from the IRS to the effect that the receipt of the additional amount of Ventas Indemnity Payments otherwise required to be paid, either would constitute Qualifying Income or would be excluded from gross income of Ventas for purposes of the Specified REIT Requirements, the aggregate Ventas Indemnity Payments otherwise required to be made (determined without regard to this Section 4.11(b)) less the amount otherwise previously paid under clauses (1) and (2) above.