Common use of Pre-Closing Taxes Clause in Contracts

Pre-Closing Taxes. (i) The DM Entities shall continue to be included for all taxable periods ending on or before the Closing Date in any consolidated federal income Tax Return for the affiliated group of which Del Monte Foods Company or the Company is the common parent and in which the DM Entities are includible (the “Group”) and any required state or local consolidated, combined or unitary income or franchise returns that include the DM Entities (all such returns including taxable periods of such Persons ending on or before the Closing Date are hereinafter referred to as “Pre-Closing Consolidated Returns”). Del Monte Foods Company or the Company, as applicable, shall timely prepare and file (or cause to be prepared and filed) all Pre-Closing Consolidated Returns and all other Tax Returns of the DM Entities required to be filed on or before the Closing Date or that relate to taxable periods ending on or before the Closing Date (the “Pre-Closing Returns”). All Pre-Closing Returns shall be prepared in a manner consistent with prior practice, except as otherwise required by Applicable Law. The Company shall timely pay (or cause to be paid) all Taxes shown as due and payable on the Pre-Closing Returns (for the avoidance of doubt, except for any liability for Taxes in American Samoa arising out of Buyer’s substantial discontinuance of the business of SK Samoa from and after the Closing Date). The Buyer shall cause all other Tax Returns of the DM Entities to be prepared and filed. The Buyer shall not file any amended return with respect to any Pre-Closing Return without the prior written consent of the Company; provided, however, the Buyer shall be entitled to amend any Pre-Closing Return without the prior written consent of the Company in order to claim any refund, credit or offset of Taxes attributable to the carryback of Tax attributes from a taxable period beginning after the Closing Date. With respect to any such Tax Return, if any, that includes a period on or prior to the Closing Date (the “Straddle Period Returns”), the Buyer shall deliver such return (and a calculation of the portion of the Taxes shown on such return that are apportioned, as determined below, to the portion of the Tax period ending on the Closing Date) to the Company, for review and comment, at least 60 days prior to the applicable filing deadline for such return. The Company shall promptly notify the Buyer of any disputed items with respect to the Straddle Period Returns and the parties shall diligently attempt to resolve such disputes. If such disputes cannot be resolved within 30 days prior to the applicable filing deadline, such disputes shall be submitted to the Settlement Accountants. In the event a taxable period includes a period prior to the Closing Date, Taxes shall, in the case of real and personal property Taxes, be apportioned ratably to such taxable period on a daily basis and, in the cast of other Taxes, be apportioned to such taxable period based on a closing of the books on the Closing Date. (ii) The Buyer shall provide written notice to the Company in the event of any sale of all or most of the assets of any of the DM Entities whose stock Buyer acquired and for which no election pursuant to Section 338 of the Code is made, occurring within 12 calendar months following the Closing Date.

Pre-Closing Taxes. (ia) The DM Entities Each of the HoldCo Entities, TCI Partner and their Subsidiaries (if any) shall continue to be included for all taxable periods (or portions thereof) ending on or before the Closing Date in any the consolidated federal Federal income Tax Return for the affiliated group of which Del Monte Foods Company or the Company is the common parent and in which the DM Entities are includible (the “Group”) and any required state or local consolidated, consolidated or combined or unitary income or franchise returns that Tax Returns of any affiliated group of which any of them is or was a member (each of which is herein referred to as a "Selling Affiliated Group") which Tax Returns include any of the DM Entities HoldCo Entities, TCI Partner and their Subsidiaries (if any) (all such returns Tax Returns including taxable periods (or portions thereof) of such Persons the HoldCo Entities, TCI Partner and their Subsidiaries (if any) ending on or before the Closing Date are hereinafter referred to to, collectively, as “"Pre-Closing Consolidated Returns”"). Del Monte Foods Company Each Cable Parent or the Company, as applicable, Cox Partner shall cause its Selling Affiliated Group to timely prepare and file (or cause to be prepared and filed) all Pre-Closing Consolidated Returns and shall timely pay all Taxes shown as due and payable on Pre-Closing Consolidated Returns (including any Taxes with respect to any deferred income triggered into income by Treasury Regulations Sections 1.1502-13, -14 and any excess loss accounts taken into income under Treasury Regulation Section 1.1502-19). Without limiting the generality of the foregoing, Sprint and the Cable Parents acknowledge that, pursuant to Treasury Regulation Section 1.1502-76(b)(2)(v), (i) Sprint shall include on its consolidated federal income tax return for the first year ending after the Closing Date that portion of the distributive share of each HoldCo Entity and TCI Partner for the current taxable year of each partnership in which any HoldCo Entity or TCI Partner is a partner that relates to the portion of such taxable year beginning on the day after the Closing Date, and (ii) each Cable Parent, with respect to any HoldCo Entity or TCI Partner of which it is the former Parent following the Closing, shall include on its consolidated federal income tax return for the first year ending after the Closing Date that portion of the distributive share of such HoldCo Entity or TCI Partner for the current taxable year of each partnership in which such HoldCo Entity or TCI Partner is a partner that relates to the portion of such taxable year ending on the Closing Date. Sprint, the Cable Parents, and Cox Partner agree that any such distributive share shall be allocated between the portion of the applicable taxable year ending on the Closing Date and the portion of the applicable taxable year beginning on the day after the Closing Date by hypothetically closing the books of all relevant entities as of the Closing Date. (b) Each Cable Parent shall timely prepare (or cause to be so prepared) all other Tax Returns of the DM Entities HoldCo Entities, TCI Partner and their Subsidiaries (if any) which such Cable Parent formerly owned or controlled that are required to be filed on or before the Closing Date or that relate to by Law for all taxable periods ending on or before the Closing Date (the “Pre"Pre- Closing Non-Closing Consolidated Returns”"). All Pre-Closing Non-Consolidated Returns shall be prepared in a manner consistent with prior practicepractice and shall properly include and reflect the income, activities, operations and transactions of the HoldCo Entities, TCI Partner and their Subsidiaries (if any), as applicable. No Pre-Closing Non-Consolidated return shall be amended in a manner inconsistent with prior practice except as otherwise required by Applicable applicable Law. The Company Each Cable Parent shall timely pay file (or cause to be paidso filed) all Pre-Closing Non-Consolidated Returns which are due on or before the Closing Date and shall pay (or cause the HoldCo Entities, TCI Partner and their Subsidiaries (if any) to pay as each may be liable) all Taxes due thereon. Each Cable Parent shall also pay (or cause the HoldCo Entities, TCI Partner and their Subsidiaries (if any) to pay as each may be liable) the full amount of any Tax which is payable by the HoldCo Entities, TCI Partner and their Subsidiaries (if any) without the filing of a Tax Return ("Non-Return Taxes"), payment of which is due on or before the Closing Date. (c) With respect to each Pre-Closing Non-Consolidated Return due after the Closing Date, each Cable Parent shall deliver (or cause to be so delivered) each such Pre-Closing Non-Consolidated Return to Sprint at least 15 days prior to the due date of such Tax Return, together with a payment in an amount equal to the amount of Tax shown as due and payable on the such Pre-Closing Returns Non-Consolidated Return (after giving effect to any credits for the avoidance amount of doubtTax, except if any, previously paid as shown on such Tax Return). Subject to the foregoing, Sprint shall cause the HoldCo Entities, TCI Partner and their Subsidiaries (if any) to file all such Pre-Closing Non-Consolidated Returns that are due after the Closing Date and to pay the amount of Tax shown as due and payable thereon to the extent each is liable for such payment (after giving effect to any liability credits for Taxes in American Samoa arising out the amount of Buyer’s substantial discontinuance of Tax, if any, previously paid as shown on such Tax Return). (d) In the business of SK Samoa from and event that after the Closing Date). The Buyer shall cause all other Tax Returns of the DM Entities , any HoldCo Entity, TCI Partner or their Subsidiaries (if any) is required to be prepared and filed. The Buyer shall not file pay any amended return with respect to Taxes for any Pre-Closing Return without the prior written consent of the Company; provided, however, the Buyer shall be entitled to amend any Pre-Closing Return without the prior written consent of the Company in order to claim any refund, credit or offset of Taxes attributable to the carryback of Tax attributes from a taxable period beginning after ending on before the Closing Date. With respect to any , the former Cable Parent of such Tax Return, if any, that includes a period on or prior entity shall promptly pay to the Closing Date (applicable taxing authority the “Straddle Period Returns”)amount of such Taxes, or indemnify any other person required to pay such Taxes for the Buyer shall deliver such return (and a calculation amount so paid pursuant to Section 7.11. For purposes of the preceding sentence, the portion of the Taxes shown on such return that are apportioned, as determined below, to the portion taxable year of any partnership described in clause (ii) of the Tax penultimate sentence of Section 7.3(a) shall be treated as a period ending on the Closing Date) to the Company, for review and comment, at least 60 days prior to the applicable filing deadline for such return. The Company shall promptly notify the Buyer of any disputed items with respect to the Straddle Period Returns and the parties shall diligently attempt to resolve such disputes. If such disputes cannot be resolved within 30 days prior to the applicable filing deadline, such disputes shall be submitted to the Settlement Accountants. In the event a taxable period includes a period prior to the Closing Date, Taxes shall, in the case of real and personal property Taxes, be apportioned ratably to such taxable period on a daily basis and, in the cast of other Taxes, be apportioned to such taxable period based on a closing of the books on the Closing Date. (iie) The Buyer Except as provided in Section 7.3(d), all Taxes required to be paid by Sprint and its Subsidiaries with respect to all periods ending on or before the Closing Date and that portion of any period which includes but does not end on such Closing Date shall provide written notice be charged to the Company in the event of any sale of all or most of the assets of any of the DM Entities whose stock Buyer acquired and for which no election pursuant to Section 338 of the Code is made, occurring within 12 calendar months following the Closing DateSprint FON Group.

Pre-Closing Taxes. (i) The DM Entities Seller Representative shall continue to be included promptly reimburse the Surviving Company for all actual out-of-pocket federal, state and local income Taxes of CMQR US or CMQR Canada but only to the extent such income Taxes are (a) properly allocable to any taxable periods ending year that ends on or before the Closing Date or, in the case of any consolidated federal income Tax Return for taxable year that includes but does not end on the affiliated group of which Del Monte Foods Company or Closing Date, the Company is the common parent and in which the DM Entities are includible (the “Group”) and any required state or local consolidated, combined or unitary income or franchise returns that include the DM Entities (all such returns including taxable periods portion of such Persons ending taxable year that ends on or before the Closing Date are hereinafter referred to as “Pre-Closing Consolidated Returns”). Del Monte Foods Company or the Company, as applicable, shall timely prepare and file (or cause to be prepared and filed) all Pre-Closing Consolidated Returns and all other Tax Returns of the DM Entities required to be filed on or before the Closing Date or that relate to taxable periods ending on or before the Closing Date (the “Preincluding any out-Closing Returns”). All Preof-Closing Returns shall be prepared pocket federal, state and local income Taxes incurred in a manner consistent connection with prior practice, except as otherwise required by Applicable Law. The Company shall timely pay (or cause to be paid) all Taxes shown as due and payable on the Pre-Closing Reorganization), (b) shown as due on the initial Tax Returns agreed to by the parties and otherwise filed in the manner consistent with Section 7.11, (for c) not otherwise included in Final Working Capital, and (d) are not reimbursed under the avoidance of doubt, except R&W Insurance Policy. The Seller Representative shall not be responsible for any liability for Taxes in American Samoa arising out of Buyer’s substantial discontinuance of the business of SK Samoa from and after the Closing Date). The Buyer shall cause all other Tax Returns of the DM Entities to be prepared and filed. The Buyer shall not file any amended return with respect to any Pre-Closing Return without the prior written consent of the Company; provided, however, the Buyer shall be entitled to amend any Pre-Closing Return without the prior written consent of the Company in order to claim any refund, credit or offset of Taxes attributable to the carryback filing of an amended Tax attributes Return or resulting from a an audit. Any such reimbursements shall constitute an adjustment to the Purchase Price. In calculating actual out-of-pocket Taxes, the parties shall assume that (x) all tax elections, tax accounting policies and methods of tax accounting remain consistent with prior years, (y) any net operating losses shall be first used to reduce Taxes payable on account of the Pre-Closing Reorganization before being applied against other income or gain of the Surviving Company, and (z) in the case of any taxable period beginning after year that includes but does not end on the Closing Date. With respect to any such Tax Return, if any, that includes a period on or prior to the Closing Date (the “Straddle Period Returns”), the Buyer shall deliver such return (and a calculation determination of the portion of the income Taxes shown on such return that are apportioned, as determined below, attributable to the portion of the Tax period taxable year ending on and including the Closing Date) to Date shall be determined by assuming that the Companytaxable year consisted of two taxable years or periods, for review and comment, one which ended at least 60 days prior to the applicable filing deadline for such return. The Company shall promptly notify close of the Buyer of any disputed items with respect to the Straddle Period Returns Closing Date and the parties shall diligently attempt to resolve such disputes. If such disputes cannot be resolved within 30 days prior to other which began at the applicable filing deadlinebeginning of the day following the Closing Date and items of income, such disputes gain, deduction, loss or credit shall be submitted to the Settlement Accountants. In the event a allocated between such two taxable period includes a period prior to the Closing Date, Taxes shall, in the case of real and personal property Taxes, be apportioned ratably to such taxable period years or periods on a daily basis and, in the cast of other Taxes, be apportioned to such taxable period based on a “closing of the books basis”, provided, however, that exemptions, allowances or deductions that are calculated on the Closing Date. (ii) an annual basis, such as depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis. The Buyer Surviving Company shall provide the Seller Representative written notice to the Company in the event of any sale a request for reimbursement under this Section 7.14 within 10 days of all or most of the assets of any of the DM Entities whose stock Buyer acquired and filing a Tax Return for which no election pursuant to Section 338 of reimbursement is requested and otherwise provide the Code is made, occurring within 12 calendar months following the Closing DateSeller Representative with information.

Pre-Closing Taxes. (i) The DM Entities shall continue to be included for all taxable periods ending on or before the Closing Date in any consolidated federal income Tax Return for the affiliated group For purposes of which Del Monte Foods Company or the Company is the common parent and in which the DM Entities are includible (the “Group”) and any required state or local consolidatedthis Agreement, combined or unitary income or franchise returns that include the DM Entities (all such returns including taxable periods of such Persons ending on or before the Closing Date are hereinafter referred to as “Pre-Closing Consolidated Returns”). Del Monte Foods Company Taxes” and Losses relating or the Company, as applicable, with respect thereto shall timely prepare and file mean (or cause to be prepared and filed) all Pre-Closing Consolidated Returns and all other Tax Returns of the DM Entities required to be filed on or before the Closing Date or that relate to taxable periods ending on or before the Closing Date (the “Pre-Closing Returns”). All Pre-Closing Returns shall be prepared in a manner consistent with prior practice, except as otherwise required by Applicable Law. The Company shall timely pay (or cause to be paidA) all Taxes shown as for which the Company could be held liable that are due and payable on the Pre-Closing Returns (for the avoidance of doubt, except for any liability for Taxes in American Samoa arising out of Buyer’s substantial discontinuance of the business of SK Samoa from and after the Closing Date). The Buyer shall cause all other Tax Returns of the DM Entities to be prepared and filed. The Buyer shall not file any amended return with respect to any Pre-Closing Return without the prior written consent of the Company; provided, however, the Buyer shall be entitled to amend any Pre-Closing Return without the prior written consent of the Company in order to claim any refund, credit or offset of Taxes attributable to the carryback of Tax attributes from a taxable period beginning after the Closing Date. With respect to any such Tax Return, if any, that includes a period periods ending on or prior to the Closing Date Date, (B) all Taxes of the Company that are due with respect to periods (“Straddle Period ReturnsPeriods”), ) that include but do not end on the Buyer shall deliver such return (and a calculation of Closing Date to the portion of the Taxes shown on such return that are apportioned, as determined below, extent attributable to the portion of the Straddle Period ending at the close of business on the Closing Date, (C) all transfer, documentary, sales, use, stamp, registration, and other such Taxes and fees (including any penalties and interest) incurred in connection with the transactions contemplated by this Agreement, (D) all fees, costs and other expenses incurred in preparing and filing all Tax Returns with respect to any taxable period beginning prior to the Closing Date and (E) other Losses incurred with respect to amounts described in clauses (A) through (D) of this sentence. Taxes attributable to the portion of the Straddle Period ending at the close of business on the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of business on the Closing Date and the other which began at the beginning of the day following the Closing Date, and items of income, gain, deduction, loss or credit and state and local apportionment factors of the Company for the Straddle Period shall be allocated to the period ending on the close of business on the Closing Date) to Date on a “closing of the Company, for review and comment, books basis” by assuming that the books of the Company were closed at least 60 days prior to the applicable filing deadline for such return. The Company shall promptly notify the Buyer close of any disputed items with respect to the Straddle Period Returns and the parties shall diligently attempt to resolve such disputes. If such disputes cannot be resolved within 30 days prior to the applicable filing deadline, such disputes shall be submitted to the Settlement Accountants. In the event a taxable period includes a period prior to business on the Closing Date. However, Taxes shall(1) exemptions, in allowances or deductions that are calculated on an annual basis, such as the case of deduction for depreciation and (2) periodic taxes such real and personal property Taxes, taxes shall be apportioned ratably to between such taxable period periods on a daily basis and, in the cast of other Taxes, be apportioned to such taxable period based on a closing of the books on the Closing Datebasis. (ii) The Buyer shall provide written notice to the Company in the event of any sale of all or most of the assets of any of the DM Entities whose stock Buyer acquired and for which no election pursuant to Section 338 of the Code is made, occurring within 12 calendar months following the Closing Date.

Pre-Closing Taxes. (ia) The DM Entities shall continue to Stockholders and the holders of Cancelled Options, severally (based on their Pro Rata Shares) and not jointly, will be included solely responsible and liable for all taxable periods ending on or before the Closing Date in any consolidated federal income Tax Return for the affiliated group of which Del Monte Foods Company or Taxes imposed upon the Company is the common parent and in which the DM Entities are includible (the “Group”) and any required state or local consolidated, combined or unitary income or franchise returns that include the DM Entities (all such returns including taxable periods of such Persons ending on or before the Closing Date are hereinafter referred to as “Pre-Closing Consolidated Returns”). Del Monte Foods Company or the Company, as applicable, shall timely prepare and file (or cause to be prepared and filed) all Pre-Closing Consolidated Returns and all other Tax Returns of the DM Entities required to be filed on or before the Closing Date or that relate to taxable periods ending on or before the Closing Date (the “Pre-Closing Returns”). All Pre-Closing Returns shall be prepared in a manner consistent with prior practice, except as otherwise required by Applicable Law. The Company shall timely pay (or cause to be paid) all Taxes shown as due and payable on the Pre-Closing Returns (for the avoidance of doubt, except for any liability for Taxes in American Samoa arising out of Buyer’s substantial discontinuance of the business of SK Samoa from and after the Closing Date). The Buyer shall cause all other Tax Returns of the DM Entities to be prepared and filed. The Buyer shall not file any amended return its Subsidiaries with respect to any Pre-Closing Return without Tax Period to the extent such Taxes exceed the amount of such Taxes accrued and reflected on the final and binding Closing Statement. Parent and the Company shall seek payment for any amounts due pursuant to this Section from the Indemnity Escrow Fund prior written consent to seeking indemnification from the Stockholders or any such holder of Cancelled Options directly. (b) For purposes of paragraph (a) above, the determination of the Company; provided, however, the Buyer shall be entitled to amend any Pre-Closing Return without the prior written consent of the Company in order to claim any refund, credit or offset of Taxes attributable to the carryback of Tax attributes from a taxable period beginning after the Closing Date. With respect to any such Tax Return, if any, that includes a period on or prior to the Closing Date (the “Straddle Period Returns”), the Buyer shall deliver such return (and a calculation of for the portion of the Taxes shown Straddle Period ending on such return that are apportionedand including, as determined below, to and the portion of the Tax period ending on Straddle Period beginning after, the Closing Date) to the Company, for review and comment, at least 60 days prior to the applicable filing deadline for such return. The Company Date shall promptly notify the Buyer of any disputed items with respect to be determined by assuming that the Straddle Period Returns consisted of two taxable periods, one that ended at the close of the Closing Date and the parties shall diligently attempt to resolve such disputes. If such disputes cannot be resolved within 30 days prior to other that began at the applicable filing deadline, such disputes shall be submitted to beginning of the Settlement Accountants. In the event a taxable period includes a period prior to day following the Closing Date, Taxes shalland items of income, in gain, deduction, loss or credit and state and local apportionment factors of the case of real and personal property Taxes, Company for the Straddle Period shall be apportioned ratably to allocated between such two taxable period periods on a daily basis and, in the cast of other Taxes, be apportioned to such taxable period based on a “closing of the books basis” by assuming that the books and records of the Company were closed at the closing of the Closing Date; provided however, that (i) exemptions, allowances or deductions that are calculated on an annual basis, such as depreciation, and (ii) periodic Taxes, such as property or similar ad valorem Taxes, shall be apportioned ratably between such periods on the basis of the number of days elapsed in each such period; and, provided further, however, that the foregoing shall not apply to any transactions undertaken by Parent on the Closing DateDate that are not contemplated by this Agreement or that are outside the ordinary course of business for the Company and its Subsidiaries and instead any items of income, gain, deduction, loss or credit and state and local apportionment factors applicable thereto shall be allocated to the Post-Closing Tax Period. (iic) The Buyer shall provide written notice For Tax purposes, Parent and the Company agree to treat all Tax Deductions as allocable to the Company Post-Closing Tax Period to the extent permitted by Law. Notwithstanding anything to the contrary in the event this Agreement, no Stockholder nor any holder of Cancelled Options shall have any sale of all or most liability to Parent if any Tax Deductions of the assets of Company or any of its Subsidiaries are not available to Parent, the DM Entities whose stock Buyer acquired and Company, any of its Subsidiaries, or any of their Affiliates for which no election pursuant to Section 338 of the Code is made, occurring within 12 calendar months following the any Post-Closing DateTax Period.

Pre-Closing Taxes. Buyer and Sellers agree to the following procedure to address the Sellers' responsibility to pay the Company's federal income taxes and Pennsylvania income, capital stock and loans taxes (if applicable), plus any related charge or amount (including any fine, penalty, interest, or addition to tax), arising in or attributable to the period (the "Short Period") beginning on July 1, 2007 and ending on the Closing Date (collectively, the "Pre-Closing Taxes") : (i) The DM Entities shall continue to be included for all taxable periods ending on or before the Closing Date in any consolidated federal income Tax Return Date, (A) the Sellers will provide to Buyer their estimate, including a detailed calculation, of the Company's liability for the affiliated group of which Del Monte Foods Company or the Company is the common parent and in which the DM Entities are includible (the “Group”) and any required state or local consolidated, combined or unitary income or franchise returns that include the DM Entities (all such returns including taxable periods of such Persons ending on or before the Closing Date are hereinafter referred to as “Pre-Closing Consolidated Returns”). Del Monte Foods Company or Taxes; (B) the Buyer will review the Sellers' estimate, and the Sellers and the Buyer will in good faith, jointly determine an estimated amount of the Company, as applicable, shall timely prepare and file (or cause to be prepared and filed) all 's liability for Pre-Closing Consolidated Returns Taxes; and all other Tax Returns (C) the Sellers shall cause a sum of cash at least equal to the amount of the DM Entities required jointly determined estimate of Pre-Closing Taxes to be filed on or before remain in the Closing Date or that relate to taxable periods ending on or before Company's bank account(s) as of the Closing Date (the “Pre-Closing Returns”"Tax Account"). All Pre-Closing Returns shall be prepared in a manner consistent with prior practice, except as otherwise required by Applicable Law. The Company shall timely pay ; and (or cause to be paidii) all Taxes shown as due and payable on the Pre-Closing Returns (for the avoidance of doubt, except for any liability for Taxes in American Samoa arising out of Buyer’s substantial discontinuance of the business of SK Samoa from and after the Closing Date). The , (1) the Buyer shall cause all other the Company to prepare and file federal and state Tax Returns of returns for the DM Entities Short Period; (2) the Buyer shall cause the funds remaining in the Company's Tax Account to be prepared and filed. The Buyer shall not file any amended return with respect used to any pay the actual Pre-Closing Return without Taxes; (3) if the prior written consent actual Pre-Closing Taxes are greater than the funds remaining in the Company's Tax Account, such excess amount shall be paid to the Company out of the Escrow Account and applied by the Company for such Pre-Closing Taxes; (4) if the actual Pre-Closing Taxes are less than the funds remaining in the Company's Tax Account, Buyer shall cause the Company to pay such shortfall into the Escrow Account, to be included as part of the Escrow Amount; provided, howeverand (5) if the actual Pre-Closing Taxes are greater than the funds remaining in the Company's Tax Account and the Escrow Account, the Sellers shall jointly and severally pay and indemnify the Buyer and Company for any such excess Pre-Closing Taxes. If the actual Pre-Closing Taxes are greater than the funds in the Company's Tax Account and Escrow Account, or if for any reason the Sellers' fail to pay the Company's Pre-Closing Taxes, the foregoing procedures and remedies shall not be exclusive, and Buyer shall be entitled to amend exercise any Pre-Closing Return without the prior written consent one or more of the Company in order to claim any refund, credit its remedies available under this Agreement or offset of Taxes attributable to the carryback of Tax attributes from a taxable period beginning after the Closing Date. With respect to any such Tax Return, if any, that includes a period on or prior to the Closing Date (the “Straddle Period Returns”), the Buyer shall deliver such return (and a calculation of the portion of the Taxes shown on such return that are apportioned, as determined below, to the portion of the Tax period ending on the Closing Date) to the Company, for review and comment, at least 60 days prior to the applicable filing deadline for such return. The Company shall promptly notify the Buyer of any disputed items with respect to the Straddle Period Returns and the parties shall diligently attempt to resolve such disputes. If such disputes cannot be resolved within 30 days prior to the applicable filing deadline, such disputes shall be submitted to the Settlement Accountants. In the event a taxable period includes a period prior to the Closing Date, Taxes shall, in the case of real and personal property Taxes, be apportioned ratably to such taxable period on a daily basis and, in the cast of other Taxes, be apportioned to such taxable period based on a closing of the books on the Closing Dateotherwise provided by law. (ii) The Buyer shall provide written notice to the Company in the event of any sale of all or most of the assets of any of the DM Entities whose stock Buyer acquired and for which no election pursuant to Section 338 of the Code is made, occurring within 12 calendar months following the Closing Date.

Pre-Closing Taxes. Sellers shall remain liable and shall jointly and severally indemnify and hold Purchaser Indemnified Parties harmless from and against any Loss attributable to (i) The DM Entities shall continue to be included for all taxable periods ending on or before the Closing Date in any consolidated federal income Tax Return for the affiliated group of which Del Monte Foods Company Income Taxes (or the non-payment thereof) of or arising with respect to the Company is the common parent and in which the DM Entities are includible (the “Group”) and any required state or local consolidated, combined or unitary income or franchise returns that include the DM Entities (all such returns including taxable periods of such Persons ending on or before the Closing Date are hereinafter referred to as “Pre-Closing Consolidated Returns”). Del Monte Foods Company or the Company, as applicable, shall timely prepare and file (or cause to be prepared and filed) for all Pre-Closing Consolidated Returns Tax Periods, (ii) any and all other Tax Returns Income Taxes of the DM Entities required to be filed on or before the Closing Date or that relate to taxable periods ending on or before the Closing Date (the “Pre-Closing Returns”). All Pre-Closing Returns shall be prepared in a manner consistent with prior practice, except as otherwise required by Applicable Law. The Company shall timely pay (or cause to be paid) all Taxes shown as due and payable on the Pre-Closing Returns (for the avoidance any member of doubt, except for any liability for Taxes in American Samoa arising out an Affiliated Group of Buyer’s substantial discontinuance of the business of SK Samoa from and after the Closing Date). The Buyer shall cause all other Tax Returns of the DM Entities to be prepared and filed. The Buyer shall not file any amended return with respect to any Pre-Closing Return without the prior written consent of the Company; provided, however, the Buyer shall be entitled to amend any Pre-Closing Return without the prior written consent of which the Company in order to claim any refund, credit is or offset of Taxes attributable to the carryback of Tax attributes from was a taxable period beginning after the Closing Date. With respect to any such Tax Return, if any, that includes a period member on or prior to the Closing Date and (the “Straddle Period Returns”), the Buyer shall deliver such return (iii) any and a calculation of the portion of the all Income Taxes shown on such return that are apportioned, as determined below, to the portion of the Tax period ending on the Closing Date) to the Company, for review and comment, at least 60 days prior to the applicable filing deadline for such return. The Company shall promptly notify the Buyer of any disputed items with respect Person imposed on either Company as a transferee or successor, by contract or pursuant to the Straddle Period Returns and the parties shall diligently attempt any law, rule or regulation, which Income Taxes relate to resolve such disputes. If such disputes cannot be resolved within 30 days prior to the applicable filing deadline, such disputes shall be submitted to the Settlement Accountants. In the an event a taxable period includes a period or transaction occurring prior to the Closing Date. The Seller Representative (on behalf of the Sellers) shall reimburse Purchaser for any Taxes of the Company or other amounts that are the responsibility of Sellers pursuant to this Section 7.4(a) within fifteen (15) days after receiving notice from Purchaser that payment of such Taxes has either been made or will be made by Purchaser or the Company. If the Company, or Purchaser, receives (A) any actual cash refund of Taxes shallpaid with respect to a Pre-Closing Tax Period that is not generated by the carryback of an item arising in a period after the Closing (a “Post-Closing Tax Period”) or (B) an abatement of or credit against Taxes attributable to a Pre-Closing Tax Period that results in an actual reduction of the cash Tax liability of the Company with respect to a Post-Closing Tax Period calculated by the difference between the Company’s cash Tax liability with respect to such Post-Closing Tax Period taking such abatement or credit into account and the Company’s cash Tax liability for such period without taking such abatement or credit into account, then the Company and or Purchaser shall promptly remit a cash payment to the Seller Representative in the case of real and personal property Taxes, be apportioned ratably to such taxable period on a daily basis and, in the cast of other Taxes, be apportioned to such taxable period based on a closing of the books on the Closing Date. (ii) The Buyer shall provide written notice to the Company in the event amount of any sale of all such cash Tax refund or most of the assets of any of the DM Entities whose stock Buyer acquired and reduction in cash Tax liability for which no election pursuant to Section 338 of the Code is made, occurring within 12 calendar months following the a Post-Closing DateTax Period.