FOR WHOLE OR PARTIAL PERIODS FOR WHICH
IT IS INDEMNIFIED BY THE OTHER PARTY HEREUNDER.
SUCH NOTICE SHALL CONTAIN
FACTUAL INFORMATION (TO THE EXTENT KNOWN) DESCRIBING THE ASSERTED TAX LIABILITY
IN REASONABLE DETAIL AND SHALL BE ACCOMPANIED BY COPIES OF ANY NOTICE OR OTHER
DOCUMENT RECEIVED FROM OR WITH ANY TAX AUTHORITY IN RESPECT OF ANY SUCH MATTERS.
33
9.5.
CONTROL OF PROCEEDINGS. THE PARTY RESPONSIBLE
FOR PREPARING AND FILING THE TAX RETURN UNDER THIS AGREEMENT SHALL CONTROL
AUDITS AND DISPUTES RELATING TO SUCH TAXES (INCLUDING ACTION TAKEN TO PAY,
COMPROMISE OR SETTLE SUCH TAXES). THE SELLING STOCKHOLDER SHALL CONTROL AUDITS
AND DISPUTES RELATING TO TAX PERIODS BEGINNING ON OR BEFORE THE CLOSING DATE AND
ENDING THEREAFTER.
REASONABLE OUT-OF-POCKET EXPENSES WITH RESPECT TO SUCH
CONTEST SHALL BE BORNE BY THE SELLING STOCKHOLDER AND APOLLO LNG IN PROPORTION
TO THEIR RESPONSIBILITY FOR SUCH TAXES AS SET FORTH IN THIS AGREEMENT.
EXCEPT
AS OTHERWISE PROVIDED BY THIS AGREEMENT, THE NON-CONTROLLING PARTY SHALL BE
AFFORDED A REASONABLE OPPORTUNITY TO PARTICIPATE IN SUCH PROCEEDINGS AT ITS OWN
EXPENSE.
9.6.
ARIZONA LNG TRANSACTION.
APOLLO AND APOLLO
LNG HEREBY AGREE TO PAY ANY TAXES PAYABLE BY EITHER HLDM, NEPTUNE LEASING, INC.,
OR GOLDEN SPREAD ENERGY, INC., ARISING OUT OF THE TRANSACTION DESCRIBED IN ITEM
1 OF SCHEDULE 6.1(I); IT BEING EXPRESSLY AGREED, IN THIS RESPECT, THAT IF IT IS
DETERMINED THAT THE VALUE OF THE SETTLEMENT WITH EL PASO FIELD SERVICES, AND/OR
THE ACQUISITION OF ARIZONA LNG, L.L.C. WAS OR IS, NOW OR IN THE FUTURE, TAXABLE
TO HLDM OR TO NEPTUNE LEASING, INC. AND GOLDEN SPREAD ENERGY, INC., THEN APOLLO
AND APOLLO LNG SHALL BE RESPONSIBLE FOR THE PAYMENT OF SUCH TAXES.
If Apollo LNG and Apollo are required to pay any such Tax, then, in such event
Apollo LNG shall have the right to encumber the assets of Arizona LNG and ALT
(the "Tax Lien") for the purpose of borrowing the funds necessary to pay such
Taxes.
The Tax Lien shall have priority over any Liens created upon the assets
of Arizona LNG or ALT securing the payment of the Purchase Note, but shall be
inferior to the JBK Liens.
10.
GENERAL PROVISIONS
10.1.
FURTHER ASSURANCES.
EACH PARTY HERETO SHALL
EXECUTE AND/OR CAUSE TO BE DELIVERED TO EACH OTHER PARTY HERETO SUCH INSTRUMENTS
AND OTHER DOCUMENTS, AND SHALL TAKE SUCH OTHER ACTIONS, AS SUCH OTHER PARTY MAY
REASONABLY REQUEST (PRIOR TO, AT OR AFTER THE CLOSING) FOR THE PURPOSE OF
CARRYING OUT OR EVIDENCING ANY OF THE TRANSACTIONS CONTEMPLATED PURSUANT TO THIS
AGREEMENT.
10.2.
WAIVER.
ANY WAIVER OF ANY TERM OR CONDITION OF
THIS AGREEMENT SHALL NOT OPERATE AS A WAIVER OF ANY PRIOR OR SUBSEQUENT BREACH
OF SUCH TERM OR CONDITION OTHER THAN THE BREACH SPECIFICALLY INTENDED TO BE
WAIVED, NOR SHALL ANY FAILURE TO ENFORCE ANY PROVISION HEREOF OPERATE AS A
WAIVER OF SUCH PROVISION OR OF ANY OTHER PROVISION HEREOF.
PRIOR TO THIS
AGREEMENT BEING TERMINATED AS A RESULT OF THE FAILURE OF A CONTINGENCY OR
CONDITION TO BE MET,