Common use of Tax Procedures Clause in Contracts

Tax Procedures. (a) With respect to any period in which (x) Pinnacle has made or will make an election to be taxed as a real estate investment trust within the meaning of Section 856 of the Code (a “REIT”) or (y) Pinnacle is a “qualified REIT subsidiary” (within the meaning of Section 856 of the Code) of a REIT (such other REIT, the “Parent REIT”), notwithstanding any other provisions in this Agreement, any payments to be made by OpCo to the Pinnacle Group pursuant to Section 5.2 or Section 5.4 for any calendar year shall not exceed the sum of (i) the amount that it is determined will not be gross income of Pinnacle or the Parent REIT for purposes of the requirements of Sections 856(c)(2) and (3) of the Code (the “Specified REIT Requirements”) for any period in which Pinnacle or the Parent REIT 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 Pinnacle or the Parent REIT, which opinion shall be reasonably satisfactory to Pinnacle or the Parent REIT plus (ii) such additional amount that is estimated can be paid to Pinnacle or the Parent REIT in such taxable year without causing Pinnacle or the Parent REIT to fail to meet the Specified REIT Requirements, determined (x) as if the payment of such amount did not constitute income described in Sections 856(c)(2)(A) through (I) and 856(c)(3)(A) through (I) of the Code (“Qualifying Income”) and (y) by taking into account any other payments to Pinnacle or the Parent REIT during such taxable year that do not constitute Qualifying Income, which determination shall be (A) made by independent tax accountants to Pinnacle or the Parent REIT, and (B) submitted to and approved by Pinnacle’s or the Parent REIT’s outside tax counsel, and (iii) in the event that Pinnacle or the Parent REIT receives a ruling from the IRS to the effect that Pinnacle or the Parent REIT’s receipt of the additional amount otherwise to be paid under this Agreement either would constitute Qualifying Income or would be excluded from gross income of Pinnacle or the Parent REIT for purposes of the Specified REIT Requirements, the aggregate payments otherwise required to be made pursuant to Section 5.2 or Section 5.4 (determined without regard to this Section 5.6(a)) less the amount otherwise previously paid under clauses (i) and (ii) above. (b) OpCo shall place the full amount of any payments otherwise to be made by OpCo pursuant to Section 5.2 or Section 5.4 in a mutually agreed escrow account upon mutually acceptable terms (which shall provide that (i) the amount in the escrow account shall be treated as the property of OpCo, unless it is released from such escrow account to any Pinnacle Indemnified Party), (ii) all income earned upon the amount in the escrow account shall be treated as the property of OpCo and reported, as and to the extent required by applicable Law, by the escrow agent to the IRS, or any other taxing authority, on IRS Form 1099 or 1042S (or other appropriate form) as income earned by OpCo whether or not said income has been distributed during such taxable year and (iii) any portion thereof shall not be released to any Pinnacle Indemnified Party unless and until OpCo receives any of the following: (A) a letter from Pinnacle’s or the Parent REIT’s independent tax accountants indicating the amount that it is estimated can be paid at that time to the Pinnacle Indemnified Parties without causing Pinnacle or the Parent REIT to fail to meet the Specified REIT Requirements for the taxable year in which the payment would be made, which determination shall be made by such independent tax accountants or (B) an opinion of outside tax counsel selected by Pinnacle or the Parent REIT, such opinion to be reasonably satisfactory to Pinnacle or the Parent REIT, to the effect that, based upon a change in applicable Law after the date on which payment was first deferred hereunder, receipt of the additional amount otherwise to be paid pursuant to Section 5.2 or Section 5.4 either would be excluded from gross income of Pinnacle or the Parent REIT for purposes of the Specified REIT Requirements or would constitute Qualifying Income, in either of which events OpCo shall pay to the applicable Pinnacle Indemnified Parties the lesser of the unpaid amounts due pursuant to Section 5.2 or Section 5.4 (determined without regard to this Section 5.6) or the maximum amount stated in the letter referred to in clause (iii)(A) above. (c) Any amount held in escrow pursuant to Section 5.6(b) for five (5) years shall be released from such escrow to be used as determined by OpCo in its sole and absolute discretion. (d) Pinnacle shall bear all costs and expenses with respect to the escrow. (e) OpCo shall cooperate in good faith to amend this Section 5.6 at the reasonable request of Pinnacle in order to (i) maximize the portion of such payment that may be distributed to Pinnacle hereunder without causing Pinnacle or the Parent REIT to fail to meet the Specified REIT Requirements, (ii) improve Pinnacle’s or the Parent REIT’s chances of securing a favorable ruling described in this Section 5.6, or (iii) assist Pinnacle or the Parent REIT in obtaining a favorable opinion from its outside tax counsel or determination from its tax accountants as described in this Section 5.6. Pinnacle shall reimburse OpCo for all reasonable out-of-pocket costs and expenses of such cooperation.

Tax Procedures. (a) With respect to any period in which (x) Pinnacle Sabra has made or will make an election to be taxed as a real estate investment trust within the meaning of Section 856 of the Code (a “REIT”) or (y) Pinnacle is a “qualified REIT subsidiary” (within the meaning of Section 856 of the Code) of a REIT (such other REIT, the “Parent REIT”), notwithstanding any other provisions in this Agreement, any payments to be made by OpCo New Sun to any member of the Pinnacle Sabra Group pursuant to Section 5.2 Sections 4.03(b), 4.03(c) or Section 5.4 4.04(f) for any calendar year shall not exceed the sum of (i) the amount that it is determined will not be gross income of Pinnacle or the Parent REIT Sabra for purposes of the requirements of Sections 856(c)(2) and (3) of the Code (the “Specified REIT Requirements”) for any period in which Pinnacle or the Parent REIT Sabra has made any an election to be taxed as a REIT, with such determination to be set forth in an opinion of outside tax counsel selected by Pinnacle or the Parent REITSabra, which such opinion shall be reasonably satisfactory to Pinnacle or the Parent REIT Sabra (such opinion is referred to as a “No Gross Income Opinion”) plus (ii) such additional amount that it is estimated can be paid to Pinnacle or the Parent REIT Sabra in such taxable year without causing Pinnacle or the Parent REIT Sabra to fail to meet the Specified REIT Requirementsrequirements of Sections 856(c)(2) and 856(c)(3) of the Code, determined (x) as if the payment of such amount did not constitute income described in Sections 856(c)(2)(A) through (I856(c)(2)(A)-(H) and 856(c)(3)(A) through (I856(c)(3)(A)(I) of the Code (“Qualifying Income”) and (y) by taking into account any other payments to Pinnacle or the Parent REIT Sabra during such taxable year that do not constitute Qualifying Income, which determination shall be (A) made by independent tax accountants to Pinnacle or the Parent REITSabra, and (B) submitted to and approved by Pinnacle’s or the Parent REITSabra’s outside tax counsel, and (iii) in the event that Pinnacle or the Parent REIT Sabra receives a ruling from the IRS to the effect holding that Pinnacle or the Parent REITSabra’s receipt of the additional amount otherwise to be paid under this Agreement either would constitute Qualifying Income or would be excluded from gross income of Pinnacle or the Parent REIT Sabra for purposes of Sections 856(c)(2) and (3) of the Code (the “Specified REIT Requirements”), the aggregate payments otherwise required to be made pursuant to Section 5.2 Sections 4.03(b), 4.03(c) or Section 5.4 4.04(f) (determined without regard to this Section 5.6(a4.05(a)) less the amount otherwise previously paid under clauses (i) and (ii) above. (b) OpCo New Sun shall place the full amount of any payments otherwise to be made by OpCo New Sun pursuant to Section 5.2 Sections 4.03(b), 4.03(c) or Section 5.4 4.04(f) in a mutually agreed escrow account upon mutually acceptable terms (which shall provide that (i) the amount in the escrow account shall be treated as the property of OpCoNew Sun, unless it is released from such escrow account to any Pinnacle Sabra Indemnified Party), (ii) all income earned upon the amount in the escrow account shall be treated as the property of OpCo New Sun and reported, as and to the extent required by applicable Applicable Law, by the escrow agent to the IRS, or any other taxing authority, on IRS Form 1099 or 1042S (or other appropriate form) as income earned by OpCo New Sun whether or not said income has been distributed during such taxable year and (iii) any portion thereof shall not be released to any Pinnacle Sabra Indemnified Party unless and until OpCo New Sun receives any of the following: (Ax) a letter from Pinnacle’s or the Parent REITSabra’s independent tax accountants indicating the amount that it is estimated can be paid at that time to the Pinnacle Sabra Indemnified Parties without causing Pinnacle or the Parent REIT Sabra to fail to meet the Specified REIT Requirements for the taxable year in which the payment would be made, which determination shall be made by such independent tax accountants accountants, or (By) an opinion of outside tax counsel selected by Pinnacle or the Parent REITSabra, such opinion to be reasonably satisfactory to Pinnacle or the Parent REITSabra, to the effect that, based upon a change in applicable Applicable Law after the date on which payment was first deferred hereunder, receipt of the additional amount otherwise to be paid pursuant to Section 5.2 Sections 4.03(b), 4.03(c) or Section 5.4 4.04(f) either would be excluded from gross income of Pinnacle or the Parent REIT Sabra for purposes of the Specified REIT Requirements or would constitute Qualifying Income, in either any of which events OpCo New Sun shall pay to the applicable Pinnacle Sabra Indemnified Parties the lesser of the unpaid amounts due pursuant to Section 5.2 Sections 4.03(b), 4.03(c) or Section 5.4 4.04(f) (determined without regard to this Section 5.64.05) or the maximum amount stated in the letter referred to in clause (iii)(Aiii)(x) above). (c) Any amount held in escrow pursuant to Section 5.6(b4.05(b) for five (5) years shall be released from such escrow to be used as determined by OpCo New Sun in its sole and absolute discretion. (d) Pinnacle Sabra shall bear all costs and expenses with respect to the escrow. (e) OpCo New Sun shall cooperate in good faith to amend this Section 5.6 4.05 at the reasonable request of Pinnacle Sabra in order to (i) maximize the portion of such payment that may be distributed to Pinnacle Sabra hereunder without causing Pinnacle or the Parent REIT Sabra to fail to meet the Specified REIT Requirementsrequirements of Sections 856(c)(2) and (3) of the Code, (ii) improve Pinnacle’s or the Parent REITSabra’s chances of securing a favorable ruling described in this Section 5.64.05, or (iii) assist Pinnacle or the Parent REIT Sabra in obtaining a favorable opinion from its outside tax counsel or determination from its tax accountants as described in this Section 5.64.05. Pinnacle Sabra shall reimburse OpCo New Sun for all reasonable out-of-pocket costs and expenses of such cooperation.

Tax Procedures. (a) With respect to any period in which (x) Pinnacle GLPI has made or will make an election to be taxed as a real estate investment trust within the meaning of Section 856 of the Code (a “REIT”) or (y) Pinnacle is a “qualified REIT subsidiary” (within the meaning of Section 856 of the Code) of a REIT (such other REIT, the “Parent REIT”), notwithstanding any other provisions in this Agreement, any payments to be made by OpCo Penn to any member of the Pinnacle GLPI Group pursuant to Section 5.2 5.3 or Section 5.4 5.6 for any calendar year shall not exceed the sum of (i) the amount that it is determined will not be gross income of Pinnacle or the Parent REIT GLPI for purposes of the requirements of Sections 856(c)(2) and (3) of the Code (the “Specified REIT Requirements”) for any period in which Pinnacle or the Parent REIT GLPI 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 Pinnacle or the Parent REITGLPI, which opinion shall be reasonably satisfactory to Pinnacle or the Parent REIT GLPI plus (ii) such additional amount that is estimated can be paid to Pinnacle or the Parent REIT GLPI in such taxable year without causing Pinnacle or the Parent REIT GLPI to fail to meet the Specified REIT Requirementsrequirements of Sections 856(c)(2) and (3) of the Code, determined (x) as if the payment of such amount did not constitute income described in Sections 856(c)(2)(A) through (I) and 856(c)(3)(A) through (I) of the Code (“Qualifying Income”) and (y) by taking into account any other payments to Pinnacle or the Parent REIT GLPI during such taxable year that do not constitute Qualifying Income, which determination shall be (A) made by independent tax accountants to Pinnacle or the Parent REITGLPI, and (B) submitted to and approved by Pinnacle’s or the Parent REITGLPI’s outside tax counsel, and (iii) in the event that Pinnacle or the Parent REIT GLPI receives a ruling from the IRS to the effect that Pinnacle or the Parent REITGLPI’s receipt of the additional amount otherwise to be paid under this Agreement either would constitute Qualifying Income or would be excluded from gross income of Pinnacle or the Parent REIT GLPI for purposes of Sections 856(c)(2) and (3) of the Code (the “Specified REIT Requirements”), the aggregate payments otherwise required to be made pursuant to Section 5.2 5.3 or Section 5.4 5.6 (determined without regard to this Section 5.6(a5.8(a)) less the amount otherwise previously paid under clauses (i) and (ii) above. (b) OpCo Penn shall place the full amount of any payments otherwise to be made by OpCo Penn pursuant to Section 5.2 5.3 or Section 5.4 5.6 in a mutually agreed escrow account upon mutually acceptable terms (which shall provide that (i) the amount in the escrow account shall be treated as the property of OpCoPenn, unless it is released from such escrow account to any Pinnacle GLPI Indemnified Party), (ii) all income earned upon the amount in the escrow account shall be treated as the property of OpCo Penn and reported, as and to the extent required by applicable Law, by the escrow agent to the IRS, or any other taxing authority, on IRS Form 1099 or 1042S (or other appropriate form) as income earned by OpCo Penn whether or not said income has been distributed during such taxable year and (iii) any portion thereof shall not be released to any Pinnacle GLPI Indemnified Party unless and until OpCo Penn receives any of the following: (A) a letter from Pinnacle’s or the Parent REITGLPI’s independent tax accountants indicating the amount that it is estimated can be paid at that time to the Pinnacle GLPI Indemnified Parties without causing Pinnacle or the Parent REIT GLPI to fail to meet the Specified REIT Requirements for the taxable year in which the payment would be made, which determination shall be made by such independent tax accountants or (B) an opinion of outside tax counsel selected by Pinnacle or the Parent REITGLPI, such opinion to be reasonably satisfactory to Pinnacle or the Parent REITGLPI, to the effect that, based upon a change in applicable Law after the date on which payment was first deferred hereunder, receipt of the additional amount otherwise to be paid pursuant to Section 5.2 5.3 or Section 5.4 5.6 either would be excluded from gross income of Pinnacle or the Parent REIT GLPI for purposes of the Specified REIT Requirements or would constitute Qualifying Income, in either of which events OpCo Penn shall pay to the applicable Pinnacle GLPI Indemnified Parties the lesser of the unpaid amounts due pursuant to Section 5.2 5.3 or Section 5.4 5.6 (determined without regard to this Section 5.65.8) or the maximum amount stated in the letter referred to in clause (iii)(A) above. (c) Any amount held in escrow pursuant to Section 5.6(b5.8(b) for five (5) years shall be released from such escrow to be used as determined by OpCo Penn in its sole and absolute discretion. (d) Pinnacle GLPI shall bear all costs and expenses with respect to the escrow. (e) OpCo Penn shall cooperate in good faith to amend this Section 5.6 5.8 at the reasonable request of Pinnacle GLPI in order to (i) maximize the portion of such payment that may be distributed to Pinnacle GLPI hereunder without causing Pinnacle or the Parent REIT GLPI to fail to meet the Specified REIT Requirementsrequirements of Sections 856(c)(2) and (3) of the Code, (ii) improve Pinnacle’s or the Parent REITGLPI’s chances of securing a favorable ruling described in this Section 5.65.8, or (iii) assist Pinnacle or the Parent REIT GLPI in obtaining a favorable opinion from its outside tax counsel or determination from its tax accountants as described in this Section 5.65.8. Pinnacle GLPI shall reimburse OpCo Penn for all reasonable out-of-pocket costs and expenses of such cooperation.

Tax Procedures. (a) With respect to any period in which (x) Pinnacle has made or will make an election to The Purchasers shall be taxed responsible for the filing of all Business Tax Returns and reports of ACI that have not been filed as a real estate investment trust within the meaning of Section 856 of the Code Closing which are due (a “REIT”taking into account extensions) or (y) Pinnacle is a “qualified REIT subsidiary” (within after the meaning of Section 856 of the Code) of a REIT (such other REIT, the “Parent REIT”), notwithstanding any other provisions in this Agreement, any payments to be made by OpCo to the Pinnacle Group pursuant to Section 5.2 or Section 5.4 for any calendar year shall not exceed the sum of (i) the amount that it is determined will not be gross income of Pinnacle or the Parent REIT for purposes of the requirements of Sections 856(c)(2) Closing and (3) of the Code (the “Specified REIT Requirements”) for any period in which Pinnacle or the Parent REIT 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 Pinnacle or the Parent REIT, which opinion shall be reasonably satisfactory to Pinnacle or the Parent REIT plus (ii) such additional amount that is estimated can be paid to Pinnacle or the Parent REIT in such taxable year without causing Pinnacle or the Parent REIT to fail to meet the Specified REIT Requirements, determined (x) as if the payment of all Taxes due in respect of such amount did not constitute income described Tax returns, other than Income Taxes in Sections 856(c)(2)(A) through (I) respect of periods ending on or before the Closing Date. For the avoidance of doubt it is understood that the Purchasers shall be responsible for and 856(c)(3)(A) through (I) shall pay all liability for Taxes in respect of the Code Business for all periods ending before, on, or after the Closing Date other than liability for Income Taxes and Canadian Transfer Taxes in respect of periods ending on or before the Closing Date (“Qualifying Income”) and (y) by taking into account in the case of any other payments to Pinnacle or period beginning before and ending after the Closing Date, liability for Income Taxes and Canadian Transfer Taxes in respect of the portion of such period through the Closing Date determined on the basis of a closing of the books as of the Closing Date), and EFC and the Parent REIT during such taxable year that do not constitute Qualifying Income, which determination shall be (A) made by independent tax accountants responsible for and shall pay all liability for Income Taxes and Canadian Transfer Taxes with respect to Pinnacle or the Parent REITBusiness, and (B) submitted with respect to and approved by Pinnacle’s or ACI, in respect to periods through the Parent REIT’s outside tax counsel, and (iii) in the event that Pinnacle or the Parent REIT receives a ruling from the IRS to the effect that Pinnacle or the Parent REIT’s receipt of the additional amount otherwise to be paid under this Agreement either would constitute Qualifying Income or would be excluded from gross income of Pinnacle or the Parent REIT for purposes of the Specified REIT Requirements, the aggregate payments otherwise required to be made pursuant to Section 5.2 or Section 5.4 (determined without regard to this Section 5.6(a)) less the amount otherwise previously paid under clauses (i) and (ii) aboveClosing. (b) OpCo Each Party shall place provide to each other Party such information as may reasonably be requested by the full amount other Party in connection with the preparation of any payments otherwise to be made Business Tax Return, any audit or other examination by OpCo pursuant to Section 5.2 or Section 5.4 in a mutually agreed escrow account upon mutually acceptable terms (which shall provide that (i) the amount in the escrow account shall be treated as the property of OpCo, unless it is released from such escrow account to any Pinnacle Indemnified Party), (ii) all income earned upon the amount in the escrow account shall be treated as the property of OpCo and reported, as and to the extent required by applicable Law, by the escrow agent to the IRStaxing authority, or any other taxing authority, on IRS Form 1099 judicial or 1042S (or other appropriate form) as income earned by OpCo whether or not said income has been distributed during such taxable year and (iii) any portion thereof shall not be released administrative proceeding relating to any Pinnacle Indemnified Party unless and until OpCo receives any of the following: (A) a letter from Pinnacle’s or the Parent REIT’s independent tax accountants indicating the amount that it is estimated can be paid at that time liability for Taxes with respect to the Pinnacle Indemnified Business. Each Party shall retain, for a reasonable period of time, and provide the other Parties without causing Pinnacle upon request and reasonable notice with, any records or the Parent REIT information which they in fact have and which may be relevant to fail to meet the Specified REIT Requirements for the taxable year in which the payment would be madesuch return, which determination shall be made by such independent tax accountants audit or (B) an opinion of outside tax counsel selected by Pinnacle examination, proceeding or the Parent REIT, such opinion to be reasonably satisfactory to Pinnacle or the Parent REIT, to the effect that, based upon a change in applicable Law after the date on which payment was first deferred hereunder, receipt of the additional amount otherwise to be paid pursuant to Section 5.2 or Section 5.4 either would be excluded from gross income of Pinnacle or the Parent REIT for purposes of the Specified REIT Requirements or would constitute Qualifying Income, in either of which events OpCo shall pay to the applicable Pinnacle Indemnified Parties the lesser of the unpaid amounts due pursuant to Section 5.2 or Section 5.4 (determined without regard to this Section 5.6) or the maximum amount stated in the letter referred to in clause (iii)(A) abovedetermination. (c) Any amount held The Parent shall promptly notify the Purchasers, and the Purchasers shall promptly notify the Parent, in escrow pursuant writing, of any notice of a tax deficiency, assessment or audit relating to Section 5.6(b) for five (5) years shall be released from such escrow to be used as determined by OpCo in its sole and absolute discretionthe Business. (d) Pinnacle The Parent and EFC shall bear all costs be liable, and expenses with shall indemnify and hold harmless the Purchasers in respect of any Claim, for Income Taxes and Canadian Transfer Taxes which are the Sellers' responsibility pursuant to Section 6.11(a) and any such indemnity payments shall not be subject to the escrow. (e) OpCo shall cooperate in good faith to amend this Section 5.6 at the reasonable request of Pinnacle in order to (i) maximize the portion of such payment that may be distributed to Pinnacle hereunder without causing Pinnacle Basket Amount or the Parent REIT to fail to meet the Specified REIT Requirements, (ii) improve Pinnacle’s or the Parent REIT’s chances of securing a favorable ruling described in this Section 5.6, or (iii) assist Pinnacle or the Parent REIT in obtaining a favorable opinion from its outside tax counsel or determination from its tax accountants as described in this Section 5.6. Pinnacle shall reimburse OpCo for all reasonable out-of-pocket costs and expenses of such cooperationCap Amount.

Tax Procedures. (a) With respect to any period in which (x) Pinnacle MGP has made or will make an election to be taxed as a real estate investment trust within the meaning of Section 856 of the Code (a “REIT”) or (y) Pinnacle is a “qualified REIT subsidiary” (within the meaning of Section 856 of the Code) of a REIT (such other REIT, the “Parent REIT”), notwithstanding any other provisions in this Agreement, any payments to be made by OpCo any member of the MGM Group to any member of the Pinnacle MGP Group pursuant to Section 5.2 Sections 6.3, 6.4 or Section 5.4 6.5 for any calendar year shall not exceed the sum of (i) the amount that it is determined will not be gross income of Pinnacle or the Parent REIT MGP for purposes of the requirements of Sections 856(c)(2) and (3) of the Code (the “Specified REIT Requirements”) for any period in which Pinnacle or the Parent REIT 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 Pinnacle or the Parent REIT, which opinion shall be reasonably satisfactory to Pinnacle or the Parent REIT plus (ii) such additional amount that is estimated can be paid to Pinnacle or the Parent REIT in such taxable year without causing Pinnacle or the Parent REIT to fail to meet the Specified REIT Requirements, determined (x) as if the payment of such amount did not would constitute income described in Sections 856(c)(2)(A) through (I) and 856(c)(3)(A) through (I) of the Code (“Qualifying Income”), with such determination to be set forth in an opinion of outside Tax counsel selected by MGP, which opinion shall be reasonably satisfactory to MGP, plus (ii) such additional amount that is estimated can be paid to MGP in such Taxable year without causing MGP to fail to meet the Specified REIT Requirements, determined (x) as if the payment of such amount did not constitute Qualifying Income and (y) by taking into account any other payments to Pinnacle or the Parent REIT MGP during such taxable Taxable year that do not constitute Qualifying Income, which determination shall be (A) made by independent tax Tax accountants to Pinnacle or the Parent REITMGP, and (B) submitted to and approved by Pinnacle’s or the Parent REITMGP’s outside tax Tax counsel, and plus (iii) in the event that Pinnacle or the Parent REIT MGP receives a ruling from the IRS to the effect that Pinnacle or the Parent REITMGP’s receipt of the additional amount otherwise to be paid under this Agreement either would constitute Qualifying Income or would will not be excluded from gross income of Pinnacle or the Parent REIT MGP for purposes of the Specified REIT Requirements, the aggregate payments otherwise required to be made pursuant to Section 5.2 Sections 6.3, 6.4 or Section 5.4 6.5 (determined without regard to this Section 5.6(a6.7(a)) less the amount otherwise previously paid under clauses (i) and (ii) above. (b) OpCo At the election of MGP, MGM shall place cause the full amount of any payments otherwise to be made by OpCo any member of the MGM Group pursuant to Section 5.2 Sections 6.3, 6.4 or Section 5.4 6.5 either to be paid in cash as promptly as reasonably practicable by wire transfer of immediately available funds to an account designated by MGP or to be placed in a mutually agreed escrow account upon mutually acceptable terms (which shall provide that (i) the amount in the escrow account shall be treated as the property of OpCothe applicable member of the MGM Group, unless it is released from such escrow account to any Pinnacle MGP Indemnified Party), (ii) all income earned upon the amount in the escrow account shall be treated as the property of OpCo the applicable member of the MGM Group and reported, as and to the extent required by applicable Law, by the escrow agent to the IRS, or any other taxing Taxing authority, on IRS Form 1099 or 1042S (or other appropriate form) as income earned by OpCo the applicable member of the MGM Group whether or not said income has been distributed during such taxable Taxable year and (iii) any portion thereof shall not be released to any Pinnacle MGP Indemnified Party unless and until OpCo MGM receives any of the following: (A) a letter from Pinnacle’s or the Parent REITMGP’s independent tax Tax accountants indicating the amount that it is estimated can be paid at that time to the Pinnacle MGP Indemnified Parties without causing Pinnacle or the Parent REIT MGP to fail to meet the Specified REIT Requirements for the taxable Taxable year in which the payment would be made, which determination shall be made by such independent tax Tax accountants or (B) a ruling from the IRS or an opinion of outside tax Tax counsel selected by Pinnacle or the Parent REIT, MGP such opinion to be reasonably satisfactory to Pinnacle or the Parent REITMGP, in each case, to the effect that, based upon a change in applicable Law after that the date on which payment was first deferred hereunder, receipt of the additional amount otherwise to be paid pursuant to Section 5.2 Sections 6.3, 6.4 or Section 5.4 6.5 either would be excluded from gross income of Pinnacle or the Parent REIT MGP for purposes of the Specified REIT Requirements or would constitute Qualifying Income, in either of which events OpCo MGM shall cause the applicable member of the MGM Group to pay to the applicable Pinnacle MGP Indemnified Parties the lesser of the unpaid amounts due pursuant to Section 5.2 Sections 6.3, 6.4 or Section 5.4 6.5 (determined without regard to this Section 5.66.7) or the maximum amount stated in the letter referred to in clause (iii)(A) above. (c) Any amount held in escrow pursuant to Section 5.6(b6.7(b) for five (5) years shall be released from such escrow to be used as determined by OpCo the applicable member of the MGM Group in its sole and absolute discretion. (d) Pinnacle MGP shall bear all costs and expenses with respect to the escrow. (e) OpCo MGM shall cooperate in good faith to amend this Section 5.6 6.7 at the reasonable request of Pinnacle MGP in order to (i) maximize the portion of such payment that may be distributed to Pinnacle MGP hereunder without causing Pinnacle or the Parent REIT MGP to fail to meet the Specified REIT Requirementsrequirements of Sections 856(c)(2) and (3) of the Code, (ii) improve Pinnacle’s or the Parent REITMGP’s chances of securing a favorable ruling described in this Section 5.66.7, or (iii) assist Pinnacle or the Parent REIT MGP in obtaining a favorable opinion from its outside tax Tax counsel or determination from its tax Tax accountants as described in this Section 5.66.7. Pinnacle MGP shall reimburse OpCo MGM for all reasonable out-of-pocket costs and expenses of such cooperation.

Tax Procedures. (a) With respect to any period in which (x) Pinnacle MGP has made or will make an election to be taxed as a real estate investment trust within the meaning of Section 856 of the Code (a “REIT”) or (y) Pinnacle is a “qualified REIT subsidiary” (within the meaning of Section 856 of the Code) of a REIT (such other REIT, the “Parent REIT”), notwithstanding any other provisions in this Agreement, any payments to be made by OpCo any MGM Party to the Pinnacle Group any MGP Party pursuant to Section 5.2 Sections 10.2 or Section 5.4 10.3 for any calendar year shall not exceed the sum of (i) the amount that it is determined will not be gross income of Pinnacle or the Parent REIT MGP for purposes of the requirements of Sections 856(c)(2) and (3) of the Code (the “Specified REIT Requirements”) for any period in which Pinnacle or the Parent REIT 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 Pinnacle or the Parent REIT, which opinion shall be reasonably satisfactory to Pinnacle or the Parent REIT plus (ii) such additional amount that is estimated can be paid to Pinnacle or the Parent REIT in such taxable year without causing Pinnacle or the Parent REIT to fail to meet the Specified REIT Requirements, determined (x) as if the payment of such amount did not would constitute income described in Sections 856(c)(2)(A) through (I) and 856(c)(3)(A) through (I) of the Code (“Qualifying Income”), with such determination to be set forth in an opinion of outside Tax counsel selected by MGP, which opinion shall be reasonably satisfactory to MGP, plus (ii) such additional amount that is estimated can be paid to the applicable MGP Party in such Taxable year without causing MGP to fail to meet the Specified REIT Requirements, determined (x) as if the payment of such amount did not constitute Qualifying Income and (y) by taking into account any other payments to Pinnacle or the Parent REIT MGP during such taxable Taxable year that do not constitute Qualifying Income, which determination shall be (A) made by independent tax Tax accountants to Pinnacle or the Parent REITMGP, and (B) submitted to and approved by Pinnacle’s or the Parent REITMGP’s outside tax Tax counsel, and plus (iii) in the event that Pinnacle or the Parent REIT MGP receives a ruling from the IRS to the effect that Pinnacle or the Parent REIT’s receipt of the additional amount otherwise to be paid under this Agreement either would constitute Qualifying Income or would will not be excluded from gross income of Pinnacle or the Parent REIT MGP for purposes of the Specified REIT Requirements, the aggregate payments otherwise required to be made pursuant to Section 5.2 Sections 10.2 or Section 5.4 10.3 (determined without regard to this Section 5.6(a10.5(a)) less the amount otherwise previously paid under clauses (i) and (ii) above. (b) OpCo At the election of MGP, MGM shall place cause the full amount of any payments otherwise to be made by OpCo any MGM Party pursuant to Section 5.2 Sections 10.2 or Section 5.4 10.3 either to be paid in cash as promptly as reasonably practicable by wire transfer of immediately available funds to an account designated by MGP or to be placed in a mutually agreed escrow account upon mutually acceptable terms (which shall provide that (i) the amount in the escrow account shall be treated as the property of OpCothe applicable MGM Party, unless it is released from such escrow account to any Pinnacle MGP Indemnified Party), (ii) all income earned upon the amount in the escrow account shall be treated as the property of OpCo the applicable MGM Party and reported, as and to the extent required by applicable Law, by the escrow agent to the IRS, or any other taxing Taxing authority, on IRS Form 1099 or 1042S (or other appropriate form) as income earned by OpCo the applicable MGM Party whether or not said income has been distributed during such taxable Taxable year and (iii) any portion thereof shall not be released to any Pinnacle MGP Indemnified Party unless and until OpCo MGM receives any of the following: (A) a letter from Pinnacle’s or the Parent REITMGP’s independent tax Tax accountants indicating the amount that it is estimated can be paid at that time to the Pinnacle MGP Indemnified Parties without causing Pinnacle or the Parent REIT MGP to fail to meet the Specified REIT Requirements for the taxable Taxable year in which the payment would be made, which determination shall be made by such independent tax Tax accountants or (B) a ruling from the IRS or an opinion of outside tax Tax counsel selected by Pinnacle or the Parent REIT, MGP such opinion to be reasonably satisfactory to Pinnacle or the Parent REITMGP, in each case, to the effect that, based upon a change in applicable Law after that the date on which payment was first deferred hereunder, receipt of the additional amount otherwise to be paid pursuant to Section 5.2 Sections 10.2 or Section 5.4 10.3 either would be excluded from gross income of Pinnacle or the Parent REIT MGP for purposes of the Specified REIT Requirements or would constitute Qualifying Income, in either of which events OpCo MGM shall cause the applicable MGM Party to pay to the applicable Pinnacle MGP Indemnified Parties the lesser of the unpaid amounts due pursuant to Section 5.2 Sections 10.2 or Section 5.4 10.3 (determined without regard to this Section 5.610.5) or the maximum amount stated in the letter referred to in clause (iii)(A) above. (c) Any amount held in escrow pursuant to Section 5.6(b10.5(b) for five (5) years shall be released from such escrow to be used as determined by OpCo the applicable MGM Party in its sole and absolute discretion. (d) Pinnacle The OP shall bear all costs and expenses with respect to the escrow. (e) OpCo MGM shall cooperate in good faith to amend this Section 5.6 10.5 at the reasonable request of Pinnacle MGP in order to (i) maximize the portion of such payment that may be distributed to Pinnacle the MGP Indemnified Party hereunder without causing Pinnacle or the Parent REIT MGP to fail to meet the Specified REIT Requirementsrequirements of Sections 856(c)(2) and (3) of the Code, (ii) improve Pinnacle’s or the Parent REITMGP’s chances of securing a favorable ruling described in this Section 5.610.5, or (iii) assist Pinnacle or the Parent REIT MGP in obtaining a favorable opinion from its outside tax Tax counsel or determination from its tax Tax accountants as described in this Section 5.610.5. Pinnacle MGP shall reimburse OpCo MGM for all reasonable out-of-pocket costs and expenses of such cooperation.

Tax Procedures. (a) With respect to any period in which (x) Pinnacle MGP has made or will make an election to be taxed as a real estate investment trust within the meaning of Section 856 of the Code (a “REIT”) or (y) Pinnacle is a “qualified REIT subsidiary” (within the meaning of Section 856 of the Code) of a REIT (such other REIT, the “Parent REIT”), notwithstanding any other provisions in this Agreement, any payments to be made by OpCo any MGM Party to the Pinnacle Group any MGP Party pursuant to Section 5.2 Sections 10.2 or Section 5.4 10.3 for any calendar year shall not exceed the sum of (i) the amount that it is determined will not be gross income of Pinnacle or the Parent REIT MGP for purposes of the requirements of Sections 856(c)(2) and (3) of the Code (the “Specified REIT Requirements”) for any period in which Pinnacle or the Parent REIT 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 Pinnacle or the Parent REIT, which opinion shall be reasonably satisfactory to Pinnacle or the Parent REIT plus (ii) such additional amount that is estimated can be paid to Pinnacle or the Parent REIT in such taxable year without causing Pinnacle or the Parent REIT to fail to meet the Specified REIT Requirements, determined (x) as if the payment of such amount did not would constitute income described in Sections 856(c)(2)(A) through (I) and 856(c)(3)(A) through (I) of the Code (“Qualifying Income”), with such determination to be set forth in an opinion of outside Tax counsel selected by MGP, which opinion shall be reasonably satisfactory to MGP, plus (ii) such additional amount that is estimated can be paid to the applicable MGP Party in such Taxable year without causing MGP to fail to meet the Specified REIT Requirements, determined (x) as if the payment of such amount did not constitute Qualifying Income and (y) by taking into account any other payments to Pinnacle or the Parent REIT MGP during such taxable Taxable year that do not constitute Qualifying Income, which determination shall be (A) made by independent tax Tax accountants to Pinnacle or the Parent REITMGP, and (B) submitted to and approved by Pinnacle’s or the Parent REITMGP’s outside tax Tax counsel, and plus (iii) in the event that Pinnacle or the Parent REIT MGP receives a ruling from the IRS to the effect that Pinnacle or the Parent REIT’s receipt of the additional amount otherwise to be paid under this Agreement either would constitute Qualifying Income or would will not be excluded from gross income of Pinnacle or the Parent REIT MGP for purposes of the Specified REIT Requirements, the aggregate payments otherwise required to be made pursuant to Section 5.2 Sections 10.2 or Section 5.4 10.3 (determined without regard to this Section 5.6(a10.5(a)) less the amount otherwise previously paid under clauses (i) and (ii) above. (b) OpCo At the election of MGP, MGM shall place cause the full amount of any payments otherwise to be made by OpCo any MGM Party pursuant to Section 5.2 Sections 10.2 or Section 5.4 10.3 either to be paid in cash as promptly as reasonably practicable by wire transfer of immediately available funds to an account designated by MGP or to be placed in a mutually agreed escrow account upon mutually acceptable terms (which shall provide that (i) the amount in the escrow account shall be treated as the property of OpCothe applicable MGM Party, unless it is released from such escrow account to any Pinnacle MGP Indemnified Party), (ii) all income earned upon the amount in the escrow account shall be treated as the property of OpCo the applicable MGM Party and reported, as and to the extent required by applicable Law, by the escrow agent to the IRS, or any other taxing Taxing authority, on IRS Form 1099 or 1042S (or other appropriate form) as income earned by OpCo the applicable MGM Party whether or not said income has been distributed during such taxable Taxable year and (iii) any portion thereof shall not be released to any Pinnacle MGP Indemnified Party unless and until OpCo MGM receives any of the following: (A) a letter from Pinnacle’s or the Parent REITMGP’s independent tax Tax accountants indicating the amount that it is estimated can be paid at that time to the Pinnacle MGP Indemnified Parties without causing Pinnacle or the Parent REIT MGP to fail to meet the Specified REIT Requirements for the taxable Taxable year in which the payment would be made, which determination shall be made by such independent tax Tax accountants or (B) a ruling from the IRS or an opinion of outside tax Tax counsel selected by Pinnacle or the Parent REIT, MGP such opinion to be reasonably satisfactory to Pinnacle or the Parent REITMGP, in each case, to the effect that, based upon a change in applicable Law after that the date on which payment was first deferred hereunder, receipt of the additional amount otherwise to be paid pursuant to Section 5.2 Sections 10.2 or Section 5.4 10.3 either would be excluded from gross income of Pinnacle or the Parent REIT MGP for purposes of the Specified REIT Requirements or would constitute Qualifying Income, in either of which events OpCo MGM shall cause the applicable MGM Party to pay to the applicable Pinnacle MGP Indemnified Parties the lesser of the unpaid amounts due pursuant to Section 5.2 Sections 10.2 or Section 5.4 10.3 (determined without regard to this Section 5.610.5) or the maximum amount stated in the letter referred to in clause (iii)(A) above. (c) Any amount held in escrow pursuant to Section 5.6(b10.5(b) for five (5) years shall be released from such escrow to be used as determined by OpCo the applicable MGM Party in its sole and absolute discretion. (d) Pinnacle The OP shall bear all costs and expenses with respect to the escrow. (e) OpCo The MGM Parties shall cooperate in good faith to amend this Section 5.6 10.5 at the reasonable request of Pinnacle MGP in order to (i) maximize the portion of such payment that may be distributed to Pinnacle the MGP Indemnified Party hereunder without causing Pinnacle or the Parent REIT MGP to fail to meet the Specified REIT Requirementsrequirements of Sections 856(c)(2) and (3) of the Code, (ii) improve Pinnacle’s or the Parent REITMGP’s chances of securing a favorable ruling described in this Section 5.610.5, or (iii) assist Pinnacle or the Parent REIT MGP in obtaining a favorable opinion from its outside tax Tax counsel or determination from its tax Tax accountants as described in this Section 5.610.5. Pinnacle MGP shall reimburse OpCo the MGM Parties for all reasonable out-of-pocket costs and expenses of such cooperation. (f) The Parties agree that any amounts paid in cash by OP to the Ground Lessee and any debt assumed by OP in excess of the amount that is allocated to the Ground Lessee pursuant to Treasury Regulations Section 1.707-5(a) shall be treated as the reimbursement of preformation expenditures to the extent permitted under Treasury Regulations Section 1.707-4(d).

Tax Procedures. (a) With Notwithstanding anything regarding the time of distributions to the contrary in Section 5.5 of the LLC Agreement, the Company shall, as promptly as practicable following its determination of the members' distributive shares of taxable income for the period preceding Closing, make a Tax Distribution to the members in respect of income allocated for such short taxable period which the members shall apply to the taxes related thereto; provided, however, that the Company shall not make any Tax Distribution to the members prior to Closing to the extent any member has a "Shortfall Amount" (as defined in the LLC Agreement) with respect to any period in which (x) Pinnacle has made or will make an election to be taxed as a real estate investment trust within the meaning of Section 856 of the Code (a “REIT”) or (y) Pinnacle is a “qualified REIT subsidiary” (within the meaning of Section 856 of the Code) of a REIT (such other REIT, the “Parent REIT”), notwithstanding any other provisions in this Agreement, any payments to be made by OpCo to the Pinnacle Group pursuant to Section 5.2 or Section 5.4 for any calendar year shall not exceed the sum of (i) the amount that it is determined will not be gross income of Pinnacle or the Parent REIT for purposes of the requirements of Sections 856(c)(2) and (3) of the Code (the “Specified REIT Requirements”) for any period in which Pinnacle or the Parent REIT 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 Pinnacle or the Parent REIT, which opinion shall be reasonably satisfactory to Pinnacle or the Parent REIT plus (ii) such additional amount that is estimated can be paid to Pinnacle or the Parent REIT in such previous taxable year without causing Pinnacle or the Parent REIT to fail to meet the Specified REIT Requirements, determined (x) as if the payment of such amount did not constitute income described in Sections 856(c)(2)(A) through (I) and 856(c)(3)(A) through (I) of the Code (“Qualifying Income”) and (y) by taking into account any other payments to Pinnacle or the Parent REIT during such taxable year that do not constitute Qualifying Income, which determination shall be (A) made by independent tax accountants to Pinnacle or the Parent REIT, and (B) submitted to and approved by Pinnacle’s or the Parent REIT’s outside tax counsel, and (iii) in the event that Pinnacle or the Parent REIT receives a ruling from the IRS to the effect that Pinnacle or the Parent REIT’s receipt of the additional amount otherwise to be paid under this Agreement either would constitute Qualifying Income or would be excluded from gross income of Pinnacle or the Parent REIT for purposes of the Specified REIT Requirements, the aggregate payments otherwise required to be made pursuant to Section 5.2 or Section 5.4 (determined without regard to this Section 5.6(a)) less the amount otherwise previously paid under clauses (i) and (ii) aboveyears. (b) OpCo Sellers shall place the full amount of any payments otherwise prepare or cause to be made by OpCo pursuant prepared and file or cause to Section 5.2 or Section 5.4 be filed (in each case in a mutually agreed escrow manner consistent with past practice) all federal, state and local Tax Returns of Razor, Shaver, the Company and its Subsidiaries required to be filed (taking xxxx account upon mutually acceptable terms (which any extensions) for taxable periods ending on or before the Closing Date, and shall provide that (i) the amount in Purchaser with the escrow account shall be treated as the property of OpCo, unless it is released from opportunity to review and comment upon such escrow account to any Pinnacle Indemnified Party), (ii) all income earned upon the amount in the escrow account shall be treated as the property of OpCo and reported, as and filings prior to the extent required by applicable Lawtime they are filed and the Sellers shall not file such filings without the Purchaser's consent, by the escrow agent to the IRS, or any other taxing authority, on IRS Form 1099 or 1042S (or other appropriate form) as income earned by OpCo whether or not said income has been distributed during such taxable year and (iii) any portion thereof which consent shall not be released unreasonably withheld. If the Sellers have requested such consent and have not received within fifteen (15) days of making such request either the Purchaser's consent or a written notice from the Purchaser that describes in reasonable detail any dispute that the Purchaser has with any information contained in the subject Tax Return (a "Dispute Notice"), then the Purchaser shall automatically be deemed to have given such consent. In the event that the Purchaser has delivered a Dispute Notice, such dispute(s) shall be subject to good faith negotiation among the Sellers, the Purchaser and their respective tax advisors for a period of ten (10) days, and if there has been no resolution of all such dispute(s) within such ten (10) day period, then unless otherwise agreed, any Pinnacle Indemnified Party unless and until OpCo receives remaining disputes shall then be submitted to an independent "Big Four" accounting firm (or, if all "Big Four" accounting firms shall have a conflict of interest, any other nationally recognized accounting firm), that has not performed material services for the Company, the Sellers or the Purchaser or any of their respective controlled Affiliates for a period of at least one (1) year, selected by the following: respective tax advisors of the Sellers and the Purchaser (Athe "Tax Return Arbitrator"), which shall act as an arbitrator and shall issue its report resolving all such disputes within ten (10) days after such dispute is referred to and accepted by it. The Tax Return Arbitrator shall use its best judgment to resolve the disputed matters in a letter from Pinnacle’s manner that most consistently reflects the Company's or other affected entity's past custom and practices so long as such past custom and practices are consistent with applicable law. The subject Tax Return, as so modified, may be filed by the Parent REIT’s independent tax accountants indicating Sellers with the amount that it is estimated can appropriate government authorities without the consent of the Purchaser. The fees and expenses of the Arbitrator shall be paid at that time one-half by the Purchaser and one-half by the Sellers. The Purchaser shall be liable for all Taxes payable with respect to the Pinnacle Indemnified Parties without causing Pinnacle or operations of Razor, Shaver, the Parent REIT to fail to meet Company and its Subsidiaries after the Specified REIT Requirements Closing, and shall xx xxsponsible for filing the taxable year in which the payment would be made, which determination shall be made by such independent tax accountants or (B) an opinion of outside tax counsel selected by Pinnacle or the Parent REIT, such opinion to be reasonably satisfactory to Pinnacle or the Parent REIT, necessary Tax Returns and reports with respect to the effect thatoperations of Razor, based upon a change in applicable Law after Shaver, the date on which payment was first deferred hereunder, receipt of Company and its Subsidiaries for all taxable periods endixx xxxer the additional amount otherwise to be paid pursuant to Section 5.2 or Section 5.4 either would be excluded from gross income of Pinnacle or the Parent REIT for purposes of the Specified REIT Requirements or would constitute Qualifying Income, in either of which events OpCo shall pay to the applicable Pinnacle Indemnified Parties the lesser of the unpaid amounts due pursuant to Section 5.2 or Section 5.4 (determined without regard to this Section 5.6) or the maximum amount stated in the letter referred to in clause (iii)(A) aboveClosing. (c) Any amount held Each party shall provide to each other party such information as may reasonably be requested by the other party in escrow connection with the preparation of any Tax Return, any audit or other examination by any taxing authority, or any judicial or administrative proceeding relating to liability for Taxes with respect to Razor, Shaver, the Company and its Subsidiaries. Each Party shall retain, fox x xxasonable period of time, and provide the other Parties upon request and reasonable notice with, any records or information which they in fact have and which may be relevant to such return, audit or examination, proceeding or determination. The Party responsible for filing a Tax Return pursuant to Section 5.6(bsubsection (a) above shall control any audits, disputes, administrative, judicial or other proceedings relating to such Tax Returns; provided that no Party may agree to settle any Tax liability or compromise any claim with respect to Taxes if such settlement or compromise may affect the liability for five Taxes of the other Party, without such other Party's consent (5) years which consent shall not be released from such escrow to be used as determined by OpCo in its sole and absolute discretionunreasonably withheld or delayed). (d) Pinnacle Sellers shall bear all costs promptly notify Purchaser, and expenses with respect Purchaser shall promptly notify Sellers, in writing, of any notice of a tax deficiency, assessment or audit relating to Razor, Shaver, the escrowCompany or any of its Subsidiaries. (e) OpCo shall cooperate in good faith to amend this Section 5.6 at the reasonable request of Pinnacle in order to (i) maximize the portion of such payment that may be distributed to Pinnacle hereunder without causing Pinnacle or the Parent REIT to fail to meet the Specified REIT Requirements, (ii) improve Pinnacle’s or the Parent REIT’s chances of securing a favorable ruling described in this Section 5.6, or (iii) assist Pinnacle or the Parent REIT in obtaining a favorable opinion from its outside tax counsel or determination from its tax accountants as described in this Section 5.6. Pinnacle shall reimburse OpCo for all reasonable out-of-pocket costs and expenses of such cooperation.

Tax Procedures. (a) With respect to any period in which (x) Pinnacle has made or will make an election to be taxed as a real estate investment trust within the meaning of Section 856 of the Code (a “REIT”) or (y) Pinnacle is a “qualified REIT subsidiary” (within the meaning of Section 856 of the Code) of a REIT (such other REIT, the “Parent REIT”), notwithstanding any other provisions in this Agreement, any payments to be made by OpCo to the Pinnacle Group pursuant to Section 5.2 or Section 5.4 for any calendar year shall not exceed the sum of (i) the amount that it is determined will not be gross income of Pinnacle or the Parent REIT for purposes of the requirements of Sections 856(c)(2) and (3) of the Code (the “Specified REIT Requirements”) for any period in which Pinnacle or the Parent REIT 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 Pinnacle or the Parent REIT, which opinion shall be reasonably satisfactory to Pinnacle or the Parent REIT plus (ii) such additional amount that is estimated can be paid to Pinnacle or the Parent REIT in such taxable year without causing Pinnacle or the Parent REIT to fail to meet the Specified REIT Requirements, determined (x) as if the payment of such amount did not constitute income described in Sections 856(c)(2)(A) through (I) and 856(c)(3)(A) through (I) of the Code (“Qualifying Income”) and (y) by taking into account any other payments to Pinnacle or the Parent REIT during such taxable year that do not constitute Qualifying Income, which determination shall be (A) made by independent tax accountants to Pinnacle or the Parent REIT, and (B) submitted to and approved by Pinnacle’s or the Parent REIT’s outside tax counsel, and (iii) in the event that Pinnacle or the Parent REIT receives a ruling from the IRS to the effect that Pinnacle or the Parent REIT’s receipt of the additional amount otherwise to be paid under this Agreement either would constitute Qualifying Income or would be excluded from gross income of Pinnacle or the Parent REIT for purposes of the Specified REIT Requirements, the aggregate payments otherwise required to be made pursuant to Section 5.2 or Section 5.4 (determined without regard to this Section 5.6(a)) less the amount otherwise previously paid under clauses (i) and (ii) above. (b) OpCo shall place the full amount of any payments otherwise to be made by OpCo pursuant to Section 5.2 or Section 5.4 in a mutually agreed escrow account upon mutually acceptable terms (which shall provide that (i) the amount in the escrow account shall be treated as the property of OpCo, unless it is released from such escrow account to any Pinnacle Indemnified Party), (ii) all income earned upon the amount in the escrow account shall be treated as the property of OpCo and reported, as and to the extent required by applicable Law, by the escrow agent to the IRS, or any other taxing authority, on IRS Form 1099 or 1042S (or other appropriate form) as income earned by OpCo whether or not said income has been distributed during such taxable year and (iii) any portion thereof shall not be released to any Pinnacle Indemnified Party unless and until OpCo receives any of the following: (A) a letter from Pinnacle’s or the Parent REIT’s independent tax accountants indicating the amount that it is estimated can be paid at that time to the Pinnacle Indemnified Parties without causing Pinnacle or the Parent REIT to fail to meet the Specified REIT Requirements for the taxable year in which the payment would be made, which determination shall be made by such independent tax accountants or (B) an opinion of outside tax counsel selected by Pinnacle or the Parent REIT, such opinion to be reasonably satisfactory to Pinnacle or the Parent REIT, to the effect that, based upon a change in applicable Law after the date on which payment was first deferred hereunder, receipt of the additional amount otherwise to be paid pursuant to Section 5.2 or Section 5.4 either would be excluded from gross income of Pinnacle or the Parent REIT for purposes of the Specified REIT Requirements or would constitute Qualifying Income, in either of which events OpCo shall pay to the applicable Pinnacle Indemnified Parties the lesser of the unpaid amounts due pursuant to Section 5.2 or Section 5.4 (determined without regard to this Section 5.6) or the maximum amount stated in the letter referred to in clause (iii)(A) above. (c) Any amount held in escrow pursuant to Section 5.6(b) for five (5) years shall be released from such escrow to be used as determined by OpCo in its sole and absolute discretion. (d) Pinnacle shall bear all costs and expenses with respect to the escrow. (e) OpCo shall cooperate in good faith to amend this Section 5.6 at the reasonable request of Pinnacle in order to (i) maximize the portion of such payment that may be distributed to Pinnacle hereunder without causing Pinnacle or the Parent REIT to fail to meet the Specified REIT Requirements, (ii) improve Pinnacle’s or the Parent REIT’s chances of securing a favorable ruling described in this Section 5.6, or (iii) assist Pinnacle or the Parent REIT in obtaining a favorable opinion from its outside tax counsel or determination from its tax accountants as described in this Section 5.6. Pinnacle shall reimburse OpCo for all reasonable out-of-pocket costs and expenses of such cooperation5.