Common use of Preparation and Filing of Returns Clause in Contracts

Preparation and Filing of Returns. Parent shall prepare and file all Tax Returns of the Transferred Entities in respect of which items of income, deduction, credit, gain or loss are passed through, directly or indirectly, to a Seller (or its direct or indirect owners) (“Flow-Through Tax Returns”) that are required to be filed after the Closing Date for any taxable period ending on or before the Closing Date. Not later than fifteen (15) days prior to the due date for filing any such Tax Return, Parent shall provide Purchaser with a copy of each such Tax Return for its review and shall consider in good faith any reasonable comments of Purchaser thereon. Purchaser shall prepare and file all Tax Returns other than Flow-Through Tax Returns of the Transferred Entities that are required to be filed for a Pre-Closing Period or Straddle Period; and in the case of any such Tax Return that could reasonably be expected to affect the amounts to which the Sellers are entitled or their obligations under Law or this Agreement, including under Section 2.7, (a) such Tax Return shall be prepared in accordance with past practice to the extent supported by a “more likely than not” (or higher) standard under applicable Law, and (b) not later than fifteen (15) days prior to the due date for filing any such Tax Return, Purchaser shall provide Parent with a copy of such Tax Return for its review and shall consider in good faith any reasonable comments of Parent thereon. If Purchaser, any of its Affiliates or any of the Transferred Entities receives notice of any audit, investigation, or other action by a Governmental Entity in respect of any Flow-Through Tax Return for a taxable period (or portion thereof) ending on or before the Closing Date (a “Pre-Closing Tax Audit”), then such party will promptly (and in any event within fifteen (15) days) give written notice to Parent. Parent will have the right, at its own expense, to control the defense of the Pre-Closing Tax Audit so long as (A) Parent gives written notice to Purchaser within fifteen (15) days after the applicable party has given notice to Parent of the Pre-Closing Tax Audit, and (B) Parent keeps the Purchaser reasonably informed of all material matters that come to its attention in respect of the Pre-Closing Tax Audit. The Purchaser will be entitled to participate in the defense of any Pre-Closing Tax Audit, at its own expense. Where Parent does not elect to control the defense of the Pre-Closing Tax Audit, Parent may, at its own expense, nevertheless participate in the defense of the Pre-Closing Tax Audit. The party controlling any Pre-Closing Tax Audit shall not settle or compromise such Pre-Closing Tax Audit without the consent of the non-controlling party (not to be unreasonably withheld, conditioned or delayed). Notwithstanding anything to the contrary herein, if requested by Purchaser, Purchaser and its Affiliates shall be permitted to cause any Transferred Entity treated as a partnership for U.S. federal Income Tax purposes to make a “push out” election under Section 6226 of the Code (and any corresponding election available under applicable state or local Law) with respect to any “imputed underpayment” of or with respect to such Transferred Entity for a Pre-Closing Period or Straddle Period, and (ii) any Transferred Entity treated as a partnership for U.S. federal Income Tax purposes (taking into account any Check Open Election) shall make an election under Section 754 of the Code for the taxable year that includes the Closing Date, to the extent such Transferred Entity does not already have such an election in effect. Notwithstanding the foregoing, Purchaser shall have no review or comment rights pursuant to this Agreement with respect to any such Tax Return of any consolidated, combined, affiliated or unitary group that includes any member of the Parent Group.

Preparation and Filing of Returns. Parent (i) The preparation and filing of any Tax Return for the NPI Companies for a Tax period which ends on or prior to the Distribution Date shall be the responsibility of KCC. (ii) The preparation and filing of any Tax Return for the NPI Companies for a period which ends after the Distribution Date shall be the responsibility of NPI. Until the third anniversary of the Distribution Date, or unless consented to by KCC in writing (which consent shall not be unreasonably withheld), NPI shall prepare such Tax Returns in a manner consistent with the past practices and methods used in preparing the Tax Returns for the Business for periods ending on or prior to the Distribution Date (unless such practices or methods are no longer permissible under the Code or any other applicable Tax law). Said consistency shall include, but not be limited to, tax depreciation method, tax useful life, tax accounting methods and other tax elections previously made by KCC but shall not prohibit NPI from adopting a method different from that utilized by KCC for determining its inventory. Notwithstanding the foregoing, NPI is free to take Tax positions on its Tax Returns, unless such positions might reasonably affect the Tax liability of KCC for any Pre-Distribution Period. The parties shall cooperate in accordance with Section 6 below for purposes of determining whether a KCC Tax position would be compromised by positions taken by NPI on a Tax Return that NPI has responsibility for preparing and filing. (iii) NPI shall prepare and file all deliver to KCC by overnight mail to KCC any Straddle Period Tax Returns of Return for KCC’s review no later than twenty (20) days prior to the Transferred Entities in respect of which items of income, deduction, credit, gain due date or loss are passed through, directly extended due date for filing such Straddle Period Tax return. KCC shall provide any comments or indirectly, objections to a Seller (or its direct or indirect owners) (“Flow-Through the draft Straddle Period Tax Returns”) that are required Return to be filed after the Closing Date for any taxable period ending on or before the Closing Date. Not NPI no later than fifteen (15) days prior to the due date or extended due date for filing such return. If KCC disagrees with any material item to be reported or reflected in such Tax Return, Parent such dispute shall provide Purchaser be resolved as provided for under Section 7. (iv) NPI and KCC shall cooperate fully with a copy respect to the preparation and filing of each such any Tax Return for its review hereunder, and each shall consider promptly make available to the other, upon reasonable request, such records, documents, information and other available data within each company’s possession or control which is pertinent to such Return. (v) All reasonable costs and expenses incurred in good faith any reasonable comments of Purchaser thereon. Purchaser shall prepare preparing and file all filing such Straddle Period Tax Returns other than Flow-Through Tax Returns shall be paid by NPI, provided however, that KCC shall reimburse NPI for the portion of the Transferred Entities such costs that are required apportioned to be filed for a Pre-Closing Period or Straddle Period; and in the case of any such Tax Return that could reasonably be expected to affect the amounts to which the Sellers are entitled or their obligations under Law or this Agreement, including under Section 2.7, (a) such Tax Return shall be prepared in accordance with past practice to the extent supported by a “more likely than not” (or higher) standard under applicable Law, and (b) not later than fifteen (15) days prior to the due date for filing any such Tax Return, Purchaser shall provide Parent with a copy of such Tax Return for its review and shall consider in good faith any reasonable comments of Parent thereon. If Purchaser, any of its Affiliates or any of the Transferred Entities receives notice of any audit, investigation, or other action by a Governmental Entity in respect of any Flow-Through Tax Return for a taxable period (or portion thereof) ending on or before the Closing Date (a “Pre-Closing Tax Audit”), then such party will promptly (and in any event within fifteen (15) days) give written notice to Parent. Parent will have the right, at its own expense, to control the defense of the Pre-Closing Tax Audit so long as (A) Parent gives written notice Distribution Period. Such costs will be apportioned to Purchaser within fifteen (15) days after the applicable party has given notice to Parent of the Pre-Closing Distribution Period by multiplying the total amount of such costs by a fraction, the numerator of which is the number of days in the period covered by the Tax Audit, and (B) Parent keeps the Purchaser reasonably informed of all material matters that come to its attention in respect of Return falling within the Pre-Closing Tax Audit. The Purchaser will be entitled to participate Distribution Period and the denominator of which is the total number of days in the defense period covered by the Tax Return. (vi) If for any taxable year beginning on or after the Distribution Date, the NPI Companies recognize a net operating loss or a net capital loss which any member of any Pre-Closing Tax Auditthe NPI Companies, under applicable law, is permitted or required to carry back to a prior taxable year of KCC or a KCC Company, then, KCC (or a KCC Company) shall, at its own expense. Where Parent does not elect to control the defense of the Pre-Closing Tax Audit, Parent may, at its own NPI’s sole cost and expense, nevertheless participate in file appropriate refund claims within a reasonable period after being requested to do so by NPI. KCC (or the defense of the Pre-Closing Tax Audit. The party controlling KCC Company receiving such refund) shall promptly remit to NPI any Pre-Closing Tax Audit shall not settle or compromise such Pre-Closing Tax Audit without the consent of the non-controlling party (not to be unreasonably withheld, conditioned or delayed). Notwithstanding anything to the contrary herein, if requested by Purchaser, Purchaser and its Affiliates shall be permitted to cause any Transferred Entity treated as a partnership for U.S. federal Income Tax purposes to make a “push out” election under Section 6226 of the Code (and any corresponding election available under applicable state or local Law) refunds it receives with respect to any “imputed underpayment” of such net operating loss or with respect to such Transferred Entity for a Pre-Closing Period or Straddle Period, and (ii) any Transferred Entity treated as a partnership for U.S. federal Income Tax purposes (taking into account any Check Open Election) shall make an election under Section 754 of the Code for the taxable year that includes the Closing Date, to the extent such Transferred Entity does not already have such an election in effectnet capital loss carried back. Notwithstanding the foregoing, Purchaser a loss that is permitted, but not required, to be carried back, shall have no review only be carried back with the prior written consent of KCC (which consent may be given or comment rights pursuant to this Agreement with respect to any such Tax Return denied in the sole discretion of any consolidated, combined, affiliated or unitary group that includes any member of the Parent GroupKCC).

Preparation and Filing of Returns. Parent (i) The preparation and filing of any Tax Return for the NPI Companies for a Tax period which ends on or prior to the Distribution Date shall be the responsibility of KCC. (ii) The preparation and filing of any Tax Return for the NPI Companies for a period which ends after the Distribution Date shall be the responsibility of NPI. Until the third anniversary of the Distribution Date, or unless consented to by KCC in writing (which consent shall not be unreasonably withheld), NPI shall prepare such Tax Returns in a manner consistent with the past practices and methods used in preparing the Tax Returns for the Business for periods ending on or prior to the Distribution Date (unless such practices or methods are no longer permissible under the Code or any other applicable Tax law). Said consistency shall include, but not be limited to, tax depreciation method, tax useful life, tax accounting methods and other tax elections previously made by KCC but shall not prohibit NPI from adopting a method different from that utilized by KCC for determining its inventory. Notwithstanding the foregoing, NPI is free to take Tax positions on its Tax Returns, unless such positions might reasonably affect the Tax liability of KCC for any Pre-Distribution Period. The parties shall cooperate in accordance with Section 6 below for purposes of determining whether a KCC Tax position would be compromised by positions taken by NPI on a Tax Return that NPI has responsibility for preparing and filing. (iii) NPI shall prepare and file all deliver to KCC by overnight mail to KCC any Straddle Period Tax Returns of Return for KCC’s review no later than twenty (20) days prior to the Transferred Entities in respect of which items of income, deduction, credit, gain due date or loss are passed through, directly extended due date for filing such Straddle Period Tax Return. KCC shall provide any comments or indirectly, objections to a Seller (or its direct or indirect owners) (“Flow-Through the draft Straddle Period Tax Returns”) that are required Return to be filed after the Closing Date for any taxable period ending on or before the Closing Date. Not NPI no later than fifteen (15) days prior to the due date or extended due date for filing such return. If KCC disagrees with any material item to be reported or reflected in such Tax Return, Parent such dispute shall provide Purchaser be resolved as provided for under Section 7. (iv) NPI and KCC shall cooperate fully with a copy respect to the preparation and filing of each such any Tax Return for its review hereunder, and each shall consider promptly make available to the other, upon reasonable request, such records, documents, information and other available data within each company’s possession or control which is pertinent to such Return. (v) All reasonable costs and expenses incurred in good faith any reasonable comments of Purchaser thereon. Purchaser shall prepare preparing and file all filing such Straddle Period Tax Returns other than Flow-Through Tax Returns shall be paid by NPI; provided, however, that KCC shall reimburse NPI for the portion of the Transferred Entities such costs that are required apportioned to be filed for a Pre-Closing Period or Straddle Period; and in the case of any such Tax Return that could reasonably be expected to affect the amounts to which the Sellers are entitled or their obligations under Law or this Agreement, including under Section 2.7, (a) such Tax Return shall be prepared in accordance with past practice to the extent supported by a “more likely than not” (or higher) standard under applicable Law, and (b) not later than fifteen (15) days prior to the due date for filing any such Tax Return, Purchaser shall provide Parent with a copy of such Tax Return for its review and shall consider in good faith any reasonable comments of Parent thereon. If Purchaser, any of its Affiliates or any of the Transferred Entities receives notice of any audit, investigation, or other action by a Governmental Entity in respect of any Flow-Through Tax Return for a taxable period (or portion thereof) ending on or before the Closing Date (a “Pre-Closing Tax Audit”), then such party will promptly (and in any event within fifteen (15) days) give written notice to Parent. Parent will have the right, at its own expense, to control the defense of the Pre-Closing Tax Audit so long as (A) Parent gives written notice Distribution Period. Such costs will be apportioned to Purchaser within fifteen (15) days after the applicable party has given notice to Parent of the Pre-Closing Distribution Period by multiplying the total amount of such costs by a fraction, the numerator of which is the number of days in the period covered by the Tax Audit, and (B) Parent keeps the Purchaser reasonably informed of all material matters that come to its attention in respect of Return falling within the Pre-Closing Tax Audit. The Purchaser will be entitled to participate Distribution Period and the denominator of which is the total number of days in the defense period covered by the Tax Return. (vi) If for any taxable year beginning on or after the Distribution Date, the NPI Companies recognize a net operating loss or a net capital loss which any member of any Pre-Closing Tax Auditthe NPI Companies, under applicable law, is permitted or required to carry back to a prior taxable year of KCC or a KCC Company, then, KCC (or a KCC Company) shall, at its own expense. Where Parent does not elect to control the defense of the Pre-Closing Tax Audit, Parent may, at its own NPI’s sole cost and expense, nevertheless participate in file appropriate refund claims within a reasonable period after being requested to do so by NPI. KCC (or the defense of the Pre-Closing Tax Audit. The party controlling KCC Company receiving such refund) shall promptly remit to NPI any Pre-Closing Tax Audit shall not settle or compromise such Pre-Closing Tax Audit without the consent of the non-controlling party (not to be unreasonably withheld, conditioned or delayed). Notwithstanding anything to the contrary herein, if requested by Purchaser, Purchaser and its Affiliates shall be permitted to cause any Transferred Entity treated as a partnership for U.S. federal Income Tax purposes to make a “push out” election under Section 6226 of the Code (and any corresponding election available under applicable state or local Law) refunds it receives with respect to any “imputed underpayment” of such net operating loss or with respect to such Transferred Entity for a Pre-Closing Period or Straddle Period, and (ii) any Transferred Entity treated as a partnership for U.S. federal Income Tax purposes (taking into account any Check Open Election) shall make an election under Section 754 of the Code for the taxable year that includes the Closing Date, to the extent such Transferred Entity does not already have such an election in effectnet capital loss carried back. Notwithstanding the foregoing, Purchaser a loss that is permitted, but not required, to be carried back, shall have no review only be carried back with the prior written consent of KCC (which consent may be given or comment rights pursuant to this Agreement with respect to any such Tax Return denied in the sole discretion of any consolidated, combined, affiliated or unitary group that includes any member of the Parent GroupKCC).

Preparation and Filing of Returns. (a) Following the Closing, Parent shall shall, at its own expense, prepare and file all or cause to be prepared any Tax Returns Return (other than any Parent Combined Tax Return) that is required to be filed by or with respect to any of the Transferred Entities in respect for any taxable period that ends on or before the Closing Date (such Tax Return, other than any Parent Combined Tax Return, a “Pre-Closing Tax Return”). In the case of which items Pre-Closing Tax Returns (but not, for the avoidance of incomedoubt, deduction, credit, gain or loss are passed through, directly or indirectly, to a Seller (or its direct or indirect owners) (“Flow-Through Parent Combined Tax Returns”) that are required to be filed after the Closing, Parent shall prepare such Pre-Closing Date Tax Returns consistent with Parent’s past practice and shall provide drafts of such Pre-Closing Tax Returns to Purchaser for any taxable period ending on or before the Closing Date. Not later review and comment no less than fifteen thirty (1530) days prior to the due date (including extensions) for timely filing of such Pre-Closing Tax Returns (or if the due date is within thirty (30) days of the Closing Date, as promptly as practicable after the Closing Date). With respect to any draft of such Pre-Closing Tax ReturnReturns, Parent shall provide Purchaser with a copy of each such Tax Return for its review and shall consider in good faith any reasonable comments of Purchaser thereon. Purchaser from Purchaser, but shall prepare and file all Tax Returns other than Flow-Through Tax Returns of the Transferred Entities that are required not be obligated to be filed for a Pre-Closing Period or Straddle Period; and in the case of any accept such Tax Return that could reasonably be expected to affect the amounts to which the Sellers are entitled or their obligations under Law or this Agreement, including under Section 2.7, (a) such Tax Return shall be prepared in accordance with past practice to the extent comments unless Parent’s position is not supported by a “more likely than not” (or higher) standard under applicable Law, and greater level of comfort). Parent shall provide Purchaser the final drafts of such Pre-Closing Tax Returns no less than five (b) not later than fifteen (155) days prior to the due date (including extensions) for timely filing any such Tax Return, Purchaser shall provide Parent with a copy of such Tax Return for its review and shall consider in good faith any reasonable comments of Parent thereon. If Purchaser, any of its Affiliates or any of the Transferred Entities receives notice of any audit, investigation, or other action by a Governmental Entity in respect of any Flow-Through Tax Return for a taxable period (or portion thereof) ending on or before the Closing Date (a “Pre-Closing Tax Audit”), then such party will promptly (and in any event within fifteen (15) days) give written notice to Parent. Parent will have the right, at its own expense, to control the defense of the Pre-Closing Tax Audit so long as (A) Parent gives written notice to Purchaser within fifteen (15) days after the applicable party has given notice to Parent of the Pre-Closing Tax Audit, and (B) Parent keeps the Purchaser reasonably informed of all material matters that come to its attention in respect of the Pre-Closing Tax Audit. The Purchaser will be entitled to participate in the defense of any Pre-Closing Tax Audit, at its own expense. Where Parent does not elect to control the defense of the Pre-Closing Tax Audit, Parent may, at its own expense, nevertheless participate in the defense of the Pre-Closing Tax Audit. The party controlling any Pre-Closing Tax Audit shall not settle or compromise such Pre-Closing Tax Audit without the consent of the non-controlling party Returns (not to be unreasonably withheld, conditioned or delayed). Notwithstanding anything to the contrary hereinor, if requested by Purchaser, Purchaser and its Affiliates shall be permitted to cause any Transferred Entity treated as a partnership for U.S. federal Income Tax purposes to make a “push out” election under Section 6226 the due date is within five (5) days of the Code (and any corresponding election available under applicable state or local Law) with respect to any “imputed underpayment” of or with respect to such Transferred Entity for a Pre-Closing Period or Straddle Period, and (ii) any Transferred Entity treated as a partnership for U.S. federal Income Tax purposes (taking into account any Check Open Election) shall make an election under Section 754 of the Code for the taxable year that includes the Closing Date, to as promptly as practicable after the extent such Transferred Entity does not already have such an election in effect. Notwithstanding Closing Date) and shall pay Purchaser the foregoing, Purchaser amount of the Indemnified Taxes reflected as due thereon. (b) Parent shall have no review sole responsibility for any combined, consolidated, unitary or comment rights pursuant to this Agreement with respect to any such similar Tax Return of any consolidated, combined, affiliated or unitary group that includes any member of the Parent Group, on the one hand, and any of the Transferred Entities, on the other hand (a “Parent Combined Tax Return”); provided, that (i) Parent shall prepare and file such Tax Returns in a manner consistent with its past practice in filing such Tax Returns (unless required otherwise by applicable Law) to the extent failing to do so would have a material and adverse effect on Purchaser or its Affiliates (including, for periods after the Closing, the Transferred Entities) and (ii) not later than thirty (30) days prior to the due date (including extensions) for filing any Parent Combined Tax Return, Parent deliver a pro forma version of such Tax Return, showing the information that relates to the Transferred Entities (but not the information that does not relate to the Transferred Entities), to Purchaser for Purchaser’s review. Parent shall bear and pay all Taxes associated with any Parent Combined Tax Return. (c) Except for any Tax Return required to be prepared by Parent pursuant to Section 8.3(a) or Section 8.3(b), Purchaser shall prepare and timely file or cause to be prepared and timely filed all Tax Returns with respect to the Transferred Entities. In the case of any such Tax Return for a Straddle Period (a “Straddle Period Tax Return”), Purchaser shall prepare or cause to be prepared such Straddle Period Tax Return in a manner consistent with past practices of the relevant Transferred Entity or its predecessor (or of Parent with respect to such Transferred Entity or its predecessor, as the case may be) unless required otherwise by applicable Law. Purchaser shall deliver to Parent for its review and approval (such approval not to be unreasonably withheld, conditioned, or delayed) a draft copy of such Straddle Period Tax Return at least thirty (30) days prior to the due date (including extensions) for timely filing of such Straddle Period Tax Returns (or (x) if the due date is within thirty (30) days of the Closing Date, as promptly as practicable after the Closing Date and (y) if such Tax Return is not an income Tax Return, as soon as reasonably practicable prior to the due date for timely filing); provided, that if Parent does not provide a written notice of objection to any such Straddle Period Tax Return within fifteen (15) days of Parent’s receipt of such Straddle Period Tax Return, then Parent shall be deemed to have approved such Straddle Period Tax Return. Notwithstanding anything to the contrary in this Section 8.3(c), Purchaser shall be entitled to file or cause to be filed any such Straddle Period Tax Return by the due date for such Straddle Period Tax Return; provided, that if Parent does not approve (or is not deemed to have approved) any such Tax Return pursuant to this Section 8.3(c) by such due date, then the parties shall cooperate in good faith to resolve any such dispute and, upon the resolution of such dispute, Purchaser shall amend such Straddle Period Tax Return in accordance with the parties’ resolution; provided, further, that if Purchaser files or causes to be filed any such Straddle Period Tax Return prior to Parent approving (or being deemed to approve) such Straddle Period Tax Return, Parent shall only be required to indemnify Purchaser for the amount of Indemnified Taxes with respect to such Straddle Period Tax Return agreed by Parent, until such dispute is resolved.

Preparation and Filing of Returns. Parent Except as otherwise provided --------------------------------- herein or as the parties may otherwise agree, Trilogy or a Trilogy SubGroup Member designated by Trilogy shall prepare and have exclusive authority to file all Tax Returns of the Transferred Entities in respect of which items of income, deduction, credit, gain or loss are passed through, directly or indirectly, to a Seller returns (or its direct or indirect owners) (“Flow-Through Tax Returns”) that are required to be filed after the Closing Date for any taxable period ending on or before the Closing Date. Not later than fifteen (15) days prior to the due date for filing any such Tax Return, Parent shall provide Purchaser with a copy of each such Tax Return for its review and shall consider in good faith any reasonable comments of Purchaser thereon. Purchaser shall prepare and file all Tax Returns other than Flow-Through Tax Consolidated Federal Returns of the Transferred Entities that are required to be filed for a Pre-Closing Period or Straddle Period; and in the case of any such Tax Return that could reasonably be expected to affect the amounts to which the Sellers are entitled or their obligations under Law or this Agreement, including under Section 2.7, (a) such Tax Return shall be prepared in accordance with past practice to the extent supported by a “more likely than not” (or higher) standard under applicable Law, and (b) not later than fifteen (15) days prior to the due date for filing any such Tax Return, Purchaser shall provide Parent with a copy of such Tax Return for its review and shall consider in good faith any reasonable comments of Parent thereon. If Purchaser, any of its Affiliates or any of the Transferred Entities receives notice of any audit, investigation, or other action by a Governmental Entity in respect of any Flow-Through Tax Return for a taxable period (or portion thereof) ending on or before the Closing Date (a “Pre-Closing Tax Audit”), then such party will promptly (and in any event within fifteen (15) days) give written notice to Parent. Parent will have the right, at its own expense, to control the defense of the Pre-Closing Tax Audit so long as (A) Parent gives written notice to Purchaser within fifteen (15) days after the applicable party has given notice to Parent of the Pre-Closing Tax Audit, and (B) Parent keeps the Purchaser reasonably informed of all material matters that come to its attention in respect of the Pre-Closing Tax Audit. The Purchaser will be entitled to participate in the defense of any Pre-Closing Tax Audit, at its own expense. Where Parent does not elect to control the defense of the Pre-Closing Tax Audit, Parent may, at its own expense, nevertheless participate in the defense of the Pre-Closing Tax Audit. The party controlling any Pre-Closing Tax Audit shall not settle or compromise such Pre-Closing Tax Audit without the consent of the non-controlling party (not to be unreasonably withheld, conditioned or delayed). Notwithstanding anything to the contrary herein, if requested by Purchaser, Purchaser and its Affiliates shall be permitted to cause any Transferred Entity treated as a partnership for U.S. federal Income Tax purposes to make a “push out” election under Section 6226 of the Code (and any corresponding election available under applicable state or local LawComposite Returns) with respect to any “imputed underpayment” the income, operations or assets of or Trilogy SubGroup Members. Subject to the terms of this Agreement, Trilogy shall be responsible for the timely filing of, and shall be liable, and shall indemnify each pcOrder SubGroup Member, for the full and timely payment of all amounts shown to be due on such returns; provided, however, that pcOrder shall be responsible for providing Trilogy all information reasonably requested by Trilogy with respect to the income, operations and assets of each pcOrder SubGroup Member so as to permit Trilogy to prepare and file such Transferred Entity for a Pre-Closing Period or Straddle Period, returns and (ii) any Transferred Entity treated as a partnership for U.S. federal Income Tax purposes (taking into account any Check Open Election) shall to make an election under Section 754 payments of the Code for Tax, including payments of estimated Tax, shown to be due thereon on a timely basis. Except as otherwise provided herein or as the taxable year that includes the Closing Dateparties may otherwise agree, to the extent such Transferred Entity does not already have such an election in effect. Notwithstanding the foregoing, Purchaser pcOrder or a pcOrder SubGroup Member designated by pcOrder shall have no review or comment rights pursuant exclusive authority to this Agreement file all Tax returns (other than Consolidated Federal Returns and Composite Returns) with respect to any the income, operations or assets of pcOrder SubGroup Members. Subject to the terms of this Agreement pcOrder shall be responsible for the timely filing of, and shall be liable, and shall indemnify each Trilogy SubGroup Member, for the full and timely payment of all amounts shown to be due on such Tax Return returns; provided, however, that Trilogy shall be responsible for providing pcOrder all information reasonably required by pcOrder with respect to the income, operations and assets of any consolidated, combined, affiliated or unitary group that includes any member each Trilogy SubGroup Member so as to permit pcOrder to prepare and file such returns and to make payments of the Parent GroupTax shown to be due thereon, including payments of estimated Tax, on a timely basis.

Preparation and Filing of Returns. Parent (i) The Existing Shareholders shall cause Oklahoma Truck Supply to prepare and file on a timely basis all Tax Returns of the Transferred Entities in with respect of which items of income, deduction, credit, gain or loss are passed through, directly or indirectly, to a Seller (or its direct or indirect owners) (“Flow-Through Tax Returns”) Oklahoma Truck Supply that are required to be filed (after giving effect to any valid extensions thereof) on or prior to the Closing Date Date. (ii) FleetPride shall prepare or cause to be prepared and shall file or cause to be filed on a timely basis all other Tax Returns with respect to Oklahoma Truck Supply. In connection therewith, the Existing Shareholders shall be responsible for and shall pay any Taxes for which the Existing Shareholders have agreed to indemnify FleetPride pursuant to Section 5.2(a)(i). Before filing any Tax Return with respect to any Straddle Period or any other Tax Return with respect to Taxes for which the Existing Shareholders have agreed to indemnify FleetPride pursuant to Section 5.2(a)(i), FleetPride shall provide the Existing Shareholders with a copy of such Tax Return at least 20 business days prior to the last date for timely filing such Tax Return (after giving effect to any valid extensions thereof), accompanied by a statement calculating in reasonable detail the Existing Shareholders' indemnification obligation pursuant to Section 5.2(a)(i). If for any reason the Existing Shareholders do not agree with FleetPride's calculation of their indemnification obligation, the Existing Shareholders shall notify FleetPride of their disagreement within ten days of receiving a copy of the Tax Return and FleetPride's calculation, and such dispute shall be resolved pursuant to the Tax Dispute Resolution Mechanism (as hereinafter defined). If the Existing Shareholders agree with FleetPride's calculation of their indemnification obligation, the Existing Shareholders shall pay to FleetPride the amount of the Existing Shareholders' indemnification obligation at least five business days prior to the last date for timely filing such Tax Return (including any valid waivers or extensions thereof). (iii) Any refunds or credits of Taxes of Oklahoma Truck Supply plus any interest received with respect thereto from an applicable taxing authority for any taxable period ending on or before the Closing Date. Not later than fifteen Date (15) days prior to the due date for filing any such Tax Returnincluding, Parent shall provide Purchaser with a copy without limitation, refunds or credits arising by reason of each such Tax Return for its review and shall consider in good faith any reasonable comments of Purchaser thereon. Purchaser shall prepare and file all amended Tax Returns other than Flow-Through Tax Returns of filed after the Transferred Entities that are required to be filed for a Pre-Closing Period or Straddle Period; Date) shall, except as otherwise provided in Section 5.2(j) and in the case of any such Tax Return that could reasonably be expected to affect the amounts to which the Sellers are entitled or their obligations under Law or this Agreement, including under Section 2.7, (a) such Tax Return shall be prepared in accordance with past practice except to the extent supported any such refund or claim is reflected as an asset on Oklahoma Truck Supply's balance sheet as of August 31, 1999, be for the account of the Existing Shareholders and shall be paid by a “more likely than not” (or higher) standard under applicable Law, and (b) not later than fifteen (15) days prior FleetPride to the due date for filing any Existing Shareholders within 30 days after FleetPride receives such Tax Return, Purchaser shall provide Parent with a copy of such refund or after the relevant Tax Return is filed in which the credit is applied against FleetPride's or the Surviving Corporation's liability for its review and shall consider in good faith Taxes. Any refunds or credits of Taxes of Oklahoma Truck Supply plus any reasonable comments of Parent thereon. If Purchaser, interest received with respect thereto from an applicable Taxing authority for any of its Affiliates or any of the Transferred Entities receives notice of any audit, investigation, or other action by a Governmental Entity in respect of any Flow-Through Tax Return for a taxable Taxable period (or portion thereof) ending on or before beginning after the Closing Date (a “Pre-Closing Tax Audit”)shall be for the account of FleetPride. Any refunds or credits of Taxes of Oklahoma Truck Supply for any Straddle Period shall be apportioned between the Existing Shareholders, then such party will promptly (and in any event within fifteen (15) days) give written notice to Parent. Parent will have on the right, at its own expense, to control the defense of the Pre-Closing Tax Audit so long as (A) Parent gives written notice to Purchaser within fifteen (15) days after the applicable party has given notice to Parent of the Pre-Closing Tax Auditone hand, and (B) Parent keeps FleetPride, on the Purchaser reasonably informed of all material matters that come to its attention in respect of the Pre-Closing Tax Audit. The Purchaser will be entitled to participate other hand, in the defense of any Pre-Closing Tax Audit, at its own expense. Where Parent does not elect to control same manner as the defense of the Pre-Closing Tax Audit, Parent may, at its own expense, nevertheless participate in the defense of the Pre-Closing Tax Audit. The party controlling any Pre-Closing Tax Audit shall not settle or compromise liability for such Pre-Closing Tax Audit without the consent of the non-controlling party (not to be unreasonably withheld, conditioned or delayed). Notwithstanding anything to the contrary herein, if requested by Purchaser, Purchaser and its Affiliates shall be permitted to cause any Transferred Entity treated as a partnership for U.S. federal Income Tax purposes to make a “push out” election under Section 6226 of the Code (and any corresponding election available under applicable state or local Law) with respect to any “imputed underpayment” of or with respect to such Transferred Entity for a Pre-Closing Period or Straddle Period, and (ii) any Transferred Entity treated as a partnership for U.S. federal Income Tax purposes (taking into account any Check Open Election) shall make an election under Section 754 of the Code for the taxable year that includes the Closing Date, to the extent such Transferred Entity does not already have such an election in effect. Notwithstanding the foregoing, Purchaser shall have no review or comment rights Taxes is apportioned pursuant to this Agreement with respect to any such Tax Return of any consolidated, combined, affiliated or unitary group that includes any member of the Parent GroupSection 5.2(a)(iii).

Preparation and Filing of Returns. Parent shall prepare and file (or cause to be prepared) all Income Tax Tax Returns of the Transferred Entities in respect of which items of income, deduction, credit, gain or loss are passed through, directly or indirectly, to a Seller for (or its direct or indirect ownersA) (“Flow-Through any Tax Returns”) that are required to be filed after the Closing Date for any taxable period ending on or before prior to the Closing DateDate or (B) Straddle Period to the extent such Straddle Period Tax Return is described on Section 8.4 of the Parent Disclosure Schedule (as may be reasonably updated by Parent prior to the Closing Date to reflect Tax Returns that would reasonably be expected to materially affect Parent’s (or its Affiliates’) U.S. federal Income Tax position as a result of the Pre-Closing Restructuring and the Post-Closing Restructuring), provided that all such Tax Returns shall be prepared in a manner consistent with (1) the Pre-Closing Restructuring (and, unless otherwise required by applicable Law, the Tax treatment outlined in Exhibit A), the Post-Closing Restructuring and the Post-Closing Restructuring Schedule, and the Purchase Price Allocation Schedule, and (2) to the extent not inconsistent with clause (1) or applicable Law, past practice (“Parent Tax Returns” which Parent Tax Returns shall include, for the avoidance of doubt, IRS Forms 5471). Not later than fifteen thirty (1530) days prior to the due date for filing (including applicable extensions) of any such Parent Tax Return, Parent shall provide Purchaser with a copy of each such Parent Tax Return for its review and shall consider in good faith incorporate any reasonable written comments provided by Purchaser within fifteen (15) days of Purchaser thereonPurchaser’s receipt of such Parent Tax Return so long as such comments would not be expected to (1) have the effect of increasing Parent’s (and its Affiliates’) indemnification obligations pursuant to this Agreement, or (2) result in any non-de minimis unreimbursed cost for or non-de minimis adverse effect on Parent or any of its Affiliates except, in each case, to the extent Parent’s position is not permitted by applicable Law. Purchaser shall prepare and file (or cause to be prepared) all Income Tax Returns other than Flow-Through Tax Returns of the Transferred Entities that are required to be filed for a Pre-Closing any Straddle Period or Straddle Period; and in the case of other than any such Parent Tax Return that could reasonably be expected to affect (“Purchaser Tax Returns”, which Purchaser Tax Returns shall include, for the amounts to which the Sellers are entitled or their obligations under Law or this Agreementavoidance of doubt, including under Section 2.7, (a) such Tax Return shall be prepared in accordance with past practice to the extent supported by a “more likely than not” (or higher) standard under applicable Law, and (b) not IRS Forms 5471). Not later than fifteen thirty (1530) days prior to the due date for filing (including any applicable extensions) of any such Purchaser Tax Return, Purchaser shall provide Parent with a copy of each such Purchaser Tax Return for its review and shall consider in good faith incorporate any reasonable written comments of provided by Parent thereon. If Purchaser, any of its Affiliates or any of the Transferred Entities receives notice of any audit, investigation, or other action by a Governmental Entity in respect of any Flow-Through Tax Return for a taxable period (or portion thereof) ending on or before the Closing Date (a “Pre-Closing Tax Audit”), then such party will promptly (and in any event within fifteen (15) days) give written notice to Parent. Parent will have the right, at its own expense, to control the defense of the Pre-Closing Tax Audit so long as (A) Parent gives written notice to Purchaser within fifteen (15) days after of Parent’s receipt of such Purchaser Tax Return so long as such comments would not reasonably be expected to result in any non-de minimis unreimbursed cost for or non-de minimis adverse effect on Purchaser or any of its Affiliates except to the extent Purchaser’s position is not permitted by applicable party has given notice Law. Purchaser shall timely file or cause to Parent be filed any such Tax Returns as finalized pursuant to the terms of the Pre-Closing Tax Audit, and (B) Parent keeps the Purchaser reasonably informed of all material matters that come to its attention in respect of the Pre-Closing Tax Auditthis Section 8.4. The Purchaser will parties agree that, upon the request of Purchaser, in filing any Pass-Through Tax Return that would be entitled to participate in governed by this Section 8.4 for the defense taxable year of any Pre-Closing Tax Audit, at its own expense. Where Parent does not elect to control the defense of the Pre-Closing Tax Audit, Parent may, at its own expense, nevertheless participate in the defense of the Pre-Closing Tax Audit. The party controlling any Pre-Closing Tax Audit shall not settle or compromise such Pre-Closing Tax Audit without the consent of the non-controlling party (not to be unreasonably withheld, conditioned or delayed). Notwithstanding anything to the contrary herein, if requested by Purchaser, Purchaser and its Affiliates shall be permitted to cause any U.S. Transferred Entity treated as that is a partnership for U.S. federal Income income Tax purposes to make a “push out” election under Section 6226 of the Code (and any corresponding election available under applicable state or local Law) with respect to any “imputed underpayment” of or with respect to such Transferred Entity for a Pre-Closing Period or Straddle Period, and (ii) any Transferred Entity treated as a partnership for U.S. federal Income Tax purposes (taking into account any Check Open Election) shall make an election under Section 754 of the Code for the taxable year that includes the Closing Date, the party preparing or causing to be prepared such Tax Return shall cause the extent relevant Transferred Entity to make an election under Code Section 754 (and the corresponding provisions of U.S. state, local or non-U.S. Tax Law) if such Transferred Entity does not already have such an a valid election under Code Section 754 in effectplace. Notwithstanding the foregoingforegoing and for the avoidance of doubt, as between Parent and its Affiliates, on the one hand, and Purchaser and its Affiliates on the other, Parent shall have sole responsibility for all Tax Returns (and any Taxes thereon) and any other Tax matters with respect to the Contracts listed in Section 8.4 of the Parent Disclosure Schedule. For the avoidance of doubt, Purchaser shall have no review or comment rights pursuant agrees to this Agreement file any Tax Returns that are not Parent Tax Returns for any Transferred Entity with respect to any such Pre-Closing Tax Return of Period in a manner that is consistent with (A) the Pre-Closing Restructuring (and, unless otherwise required by applicable Law, the Tax treatment outlined in Exhibit A), the Post-Closing Restructuring and the Post-Closing Restructuring Schedule, and the Purchase Price Allocation Schedule, and (B) to the extent not inconsistent with clause (A) or applicable Law, past practice. Notwithstanding the foregoing or anything to the contrary in this Agreement, as between Parent and its Affiliates, on the one hand, and Purchaser and its Affiliates on the other, Parent shall retain all rights and obligations over Tax matters (including any consolidated, combined, affiliated or unitary group that includes any member Tax Actions) with respect to the Contracts listed in Section 8.4 of the Parent GroupDisclosure Schedule, provided that Parent and its Affiliates covenant and agree not to knowingly after due inquiry take any actions with the specific intent to breach of any of the obligations set forth in such Contracts with respect to Taxes or Tax Returns.

Preparation and Filing of Returns. Parent (i) The Company shall prepare be responsible for the preparation and file timely filing of all Tax Returns of or which include the Transferred Entities in respect of which items of income, deduction, credit, gain or loss are passed through, directly or indirectly, to a Seller (or Company and its direct or indirect owners) (“Flowsubsidiaries for Pre-Through Closing Tax Returns”) Periods that are required to be filed after the Closing Date for any taxable period ending on or due before the Closing Date. Not later than fifteen The Company shall cause the amount shown as due on such Tax Returns to be timely paid. (15ii) At least ten (10) days prior to the due date of any income or franchise Tax Return referred to in Section 5.10(a)(i), the Company shall cause such Tax Return to be delivered to ECI for filing its review, and such Tax Return shall not be filed without ECI's written consent, which shall not be unreasonably withheld or delayed. (iii) ECI shall prepare or cause to be prepared and timely file or cause to be timely filed all Tax Returns of the Company and/or its subsidiaries that include Pre-Closing Tax Periods and are due after the Closing Date. At least fifteen (15) business days prior to the due date (reflecting any extension of such due date) of any such Tax Return, Parent ECI shall provide Purchaser with a copy of each cause such Tax Return to be delivered to the Stockholder Representative for its review review, comment and approval, which shall consider in good faith any reasonable comments of Purchaser thereon. Purchaser not be unreasonably withheld and which shall prepare and file all Tax Returns other than Flow-Through Tax Returns of the Transferred Entities that are required to be filed for a Pre-Closing Period or Straddle Period; and in the case of any deemed given if such Tax Return that could reasonably be expected to affect the amounts to which the Sellers are entitled or their obligations under Law or this Agreement, including under Section 2.7, (a) such Tax Return shall be is materially accurate and is prepared in accordance on a basis consistent with past practice practices or current law or if the Stockholder Representative has not responded to ECI by the extent supported by a “more likely than not” date that is five (or higher5) standard under applicable Law, and days prior to such due date of the Tax Return. At least three (b) not later than fifteen (153) days prior to the due date for filing any of each such Tax Return, Purchaser the Company Stockholders, in accordance with their Pro Rata Interests, shall provide Parent with a copy of such Tax Return for its review pay to ECI an amount equal to the Taxes due and shall consider in good faith any reasonable comments of Parent thereon. If Purchaser, any of its Affiliates or any of the Transferred Entities receives notice of any audit, investigation, or other action by a Governmental Entity in respect of any Flow-Through Tax Return for a taxable period (or portion thereof) ending on or before the Closing Date (a “Pre-Closing Tax Audit”), then such party will promptly (and in any event within fifteen (15) days) give written notice attributable to Parent. Parent will have the right, at its own expense, to control the defense of the Pre-Closing Tax Audit so long Period included in such Tax Return (as determined under Section 5.10(b) in the case of a Tax Return for an Overlap Period), which amount shall be taken by ECI from the Escrow Indemnity Account, but only to the extent that the amount due from the Company Stockholders exceeds the Tax Reserve reduced by any prior offsets pursuant to Section 5.10 or Section 7.03(a)(i). (Aiv) Parent gives written notice If a Tax Return referred to Purchaser within in the first sentence of Section 5.10(a)(iii) is to be filed pursuant to a valid extension, the Company Stockholders in accordance with their Pro Rata interests, shall pay to ECI, at least two (2) days prior to the due date of the Tax Return without regard to such extension, an amount equal to the Taxes due from the Company and/or its subsidiaries and attributable to the applicable Pre-Closing Tax Period, which amount shall be taken by ECI from the Escrow Indemnity Account, but only to the extent that the amount due from Company Stockholders exceeds the Tax Reserve reduced by any prior offsets pursuant to Section 5.10 or Section 7.03(a). If ECI determines that such Tax due on the due date without regard to extensions exceeds the Tax Reserve reduced by any prior offsets pursuant to Section 5.10 or Section 7.03(a), ECI shall deliver to the Stockholder Representative, at least fifteen (15) business days after before such due date, a schedule supporting the applicable party calculation of such Taxes for its review, comment and approval, which shall not be unreasonably withheld and shall be deemed given if such schedule is materially accurate and is prepared on a basis consistent with past practices or current law involving the calculation of Taxes or if the Stockholder Representative has given notice not responded to Parent ECI by the date that is five (5) days prior to the due date of the payment of such Taxes. ECI shall cause the Taxes due on the due date, without regard to extensions, to be timely paid. Appropriate adjustments shall be made between the parties as necessary if, at the time the Tax Return is actually filed, the Taxes due and attributable to the Pre-Closing Tax Audit, and (B) Parent keeps Period are more or less than the Purchaser reasonably informed of all material matters that come to its attention in respect of the Pre-Closing Tax Audit. The Purchaser will be entitled to participate in the defense of any Pre-Closing Tax Audit, at its own expense. Where Parent does not elect to control the defense of the Pre-Closing Tax Audit, Parent may, at its own expense, nevertheless participate in the defense of the Pre-Closing Tax Audit. The party controlling any Pre-Closing Tax Audit shall not settle or compromise such Pre-Closing Tax Audit without the consent of the non-controlling party (not to be unreasonably withheld, conditioned or delayed). Notwithstanding anything to the contrary hereinamount, if requested any, previously paid by Purchaser, Purchaser and its Affiliates shall be permitted to cause any Transferred Entity treated as a partnership for U.S. federal Income Tax purposes to make a “push out” election under Section 6226 of the Code (and any corresponding election available under applicable state or local Law) with respect to any “imputed underpayment” of or with respect to such Transferred Entity for a Pre-Closing Period or Straddle Period, and (ii) any Transferred Entity treated as a partnership for U.S. federal Income Tax purposes (taking into account any Check Open Election) shall make an election under Section 754 of the Code for the taxable year that includes the Closing Date, to the extent such Transferred Entity does not already have such an election in effect. Notwithstanding the foregoing, Purchaser shall have no review or comment rights pursuant to this Agreement with respect to any such Tax Return of any consolidated, combined, affiliated or unitary group that includes any member of the Parent GroupECI.

Preparation and Filing of Returns. Parent Purchaser shall prepare and file all Tax Returns of the Transferred Entities in respect of which items of income, deduction, credit, gain or loss are passed through, directly or indirectly, to a Seller (or its direct or indirect owners) (“Flow-Through Tax Returns”) that are required to be filed after the Closing Date for any taxable period ending on Pre- Closing Tax Period or before the Closing DateStraddle Period (excluding, for clarity, any Tax Return of a Transferred Entity filed as part of a consolidated, combined or other similar Group that includes Parent or any of its Affiliates (other than any such group comprised solely of Transferred Entities)). Not later than fifteen thirty (15) days prior to the due date for filing any such Tax Return, Parent shall provide Purchaser with a copy of each such Tax Return for its review and shall consider in good faith any reasonable comments of Purchaser thereon. Purchaser shall prepare and file all Tax Returns other than Flow-Through Tax Returns of the Transferred Entities that are required to be filed for a Pre-Closing Period or Straddle Period; and in the case of any such Tax Return that could reasonably be expected to affect the amounts to which the Sellers are entitled or their obligations under Law or this Agreement, including under Section 2.7, (a) such Tax Return shall be prepared in accordance with past practice to the extent supported by a “more likely than not” (or higher) standard under applicable Law, and (b) not later than fifteen (1530) days prior to the due date for filing any such Tax Return, Purchaser shall provide Parent with a copy of each such income or other material Tax Return for its review and shall consider in good faith any reasonable comments consent (not to be unreasonably withheld, conditioned or delayed), to the extent that such Tax Return would reasonably be expected to increase the Taxes of Parent thereonor any of its Affiliates (excluding, for clarity, the Transferred Entities). If Purchaser, any of its Affiliates or any of the Transferred Entities receives notice of any audit, investigation, or other action by a Governmental Entity in respect of any Flow-Through Tax Return of the Transferred Entities for a taxable period (or portion thereof) ending on or before the Pre-Closing Date Tax Period (a “Pre-Closing Tax Audit”), then such party will promptly (and in any event within fifteen (15) days) give written notice to Parent. Parent Purchaser will have the right, at its own expense, to control the defense of the Pre-Closing Tax Audit so long as (A) and shall keep the Parent gives written notice to Purchaser within fifteen (15) days after the applicable party has given notice to Parent of the Pre-Closing Tax Audit, and (B) Parent keeps the Purchaser reasonably informed of all material matters that come to its attention in respect of the Pre-Closing Tax Audit. The Purchaser Parent will be entitled to participate in the defense of any Pre-Closing Tax Audit, at its own expense. Where Parent does not elect to control the defense of the Pre-Closing Tax Audit, Parent may, at its own expense, nevertheless participate in the defense of the Pre-Closing Tax Audit. The party controlling any Pre-Closing Tax Audit and Purchaser shall not settle or compromise such Pre-Closing Tax Audit without the consent of the non-controlling party Parent (not to be unreasonably withheld, conditioned or delayed). Notwithstanding anything to the contrary herein, if requested by Purchaser, Purchaser and its Affiliates shall be permitted to cause any Transferred Entity treated as a partnership for U.S. federal Income Tax purposes to make a “push out” election under Section 6226 of the Code (and any corresponding election available under applicable state or local Law) with respect to any “imputed underpayment” of or with respect to such Transferred Entity for a Pre-Closing Period or Straddle Period, and (ii) any Transferred Entity treated as a partnership for U.S. federal Income Tax purposes (taking into account any Check Open Election) shall make an election under Section 754 of the Code for the taxable year that includes the Closing Date, to the extent that such settlement or compromise could reasonably be expected to increase the Taxes or decrease the Tax attributes of Parent or any of its Affiliates (excluding, for clarity, the Transferred Entity does not already have such an election in effect. Notwithstanding the foregoing, Purchaser shall have no review or comment rights pursuant to this Agreement with respect to any such Tax Return of any consolidated, combined, affiliated or unitary group that includes any member of the Parent GroupEntities).