2.8 IN LIQUIDATION OF THEIR INTERESTS IN
SIRIUS OTHER THAN THE CASH TRANSACTION INTERESTS,
(VIII)
THE UNIT TRANSACTION WILL BE TREATED AS A TAX-FREE TRANSFER UNDER
SECTION 721, EXCEPT TO THE EXTENT ANY PORTION OF THE ALLOCABLE ASSUMED
LIABILITIES MUST BE TREATED AS THE PROCEEDS OF A TAXABLE SALE OF A PORTION OF
THE ASSETS OF SIRIUS PURSUANT TO SECTION 707 OF THE CODE AND THE REGULATIONS
THEREUNDER AND
(IX)
REFERENCES TO SMITH LLC, WS MARITIME OR RCD IN THIS SECTION 6.10
ARE TREATED AS REFERENCES TO SMITH, SUNDBERG OR DORN, RESPECTIVELY TO THE EXTENT
ANY OF SMITH LLC, WS MARITIME OR RCD IS A DISREGARDED ENTITY FOR FEDERAL INCOME
TAX PURPOSES.
THE BUYER, SMITH LLC AND RCD WILL CONSULT WITH EACH OTHER AND ATTEMPT TO AGREE
IN GOOD FAITH AS TO THE PORTION, IF ANY, OF SIRIUS'S ASSETS THAT IS TREATED AS
DISPOSED OF IN A TAXABLE SALE PURSUANT TO SECTION 707 OF THE CODE AND SECTION
6.10(A)(VIII) OF THIS AGREEMENT.
FOR THIS PURPOSE, NO LIABILITY WILL BE TREATED
AS A "QUALIFIED LIABILITY" UNDER TREAS. REG. § 1.707-5(A)(6) IF SCHEDULE 4.26(E)
DOES NOT CONTAIN SUFFICIENT INFORMATION TO CONFIRM THE STATUS OF THE LIABILITY
AS A "QUALIFIED LIABILITY").
IN THE EVENT THE PARTIES ARE UNABLE TO AGREE, THE
DETERMINATION OF THE BUYER WILL BE BINDING ON THE PARTIES.
EACH PARTY AGREES
NOT TO ASSERT, IN CONNECTION WITH ANY TAX RETURN, TAX AUDIT OR SIMILAR
PROCEEDING, ANY POSITION INCONSISTENT WITH THE ALLOCATIONS AND DETERMINATIONS
DESCRIBED IN THIS SECTION 6.10(A).
(B)
THE SELLERS WILL INDEMNIFY AND HOLD SIRIUS AND BUYER HARMLESS FROM
(I) ANY LIABILITY FOR TAXES WITH RESPECT TO SIRIUS ITEMS (AND ANY OTHER
LIABILITY OF SIRIUS FOR TAXES) FOR EVENTS, AND FOR TAX PERIODS (OR PORTIONS
THEREOF) ENDING, ON OR BEFORE THE CLOSING DATE, AND (II) ANY LIABILITY OF SIRIUS
OR ANY OTHER ENTITY FOR WHICH SIRIUS COULD BE HELD LIABLE AFTER THE CLOSING
UNDER TREAS. REG. § 1.1361-4(A)(6), TREAS. REG. § 1.1502-6, TREAS. REG. §
301.7701-2(C)(2)(III) OR SIMILAR PRINCIPLES, EXCEPTING TAXES DESCRIBED IN
SECTION 6.10(C).
FOR TAX PERIODS ENDING ON OR BEFORE THE CLOSING DATE, THE
SELLER PARTIES AND SIRIUS SHALL CAUSE TO BE TIMELY FILED WITH APPROPRIATE
GOVERNMENTAL BODIES ALL TAX RETURNS REQUIRED TO BE FILED BY OR WITH RESPECT TO
SIRIUS AND SIRIUS ITEMS, AND SHALL PAY OR CAUSE TO BE PAID OR MAKE PROVISIONS
FOR THE PAYMENT OF ALL TAXES DUE WITH RESPECT THERETO.
BUYER AND THE
PARTNERSHIP SHALL COOPERATE WITH THE SELLER PARTIES AND PROVIDE SUCH INFORMATION
AND ACCESS TO RECORDS AND PERSONNEL AS IS REASONABLY NECESSARY TO PREPARE SUCH
RETURNS.
(C)
ALL TRANSFER, DOCUMENTARY, SALES, USE, REGISTRATION, REAL ESTATE
TRANSFER OR GAIN OR SIMILAR OR RELATED TAX (BUT NOT ANY BUSINESS AND OCCUPATION
TAX) RELATED TO OR ARISING FROM THE TRANSACTIONS CONTEMPLATED HEREIN SHALL BE
BORNE BY BUYER.
SELLERS AND BUYER SHALL COOPERATE IN TIMELY MAKING ALL TAX
RETURNS AS MAY BE REQUIRED TO COMPLY WITH THE PROVISIONS OF SUCH TAX LAWS.
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(D)
MEMBERS SHALL CAUSE THE PROVISIONS OF ANY TAX SHARING