APOLLO LNG, AS SOON
AS PRACTICABLE FOLLOWING CLOSING, CERTIFICATES OF CLEARANCE FROM THE ARIZONA
DEPARTMENT OF REVENUE, MOJAVE COUNTY, DATED WITHIN A REASONABLE PERIOD
SUBSEQUENT TO THE CLOSING DATE, ADDRESSED TO ARIZONA LNG, VERIFYING THE TIMELY
FILING OF AND REQUIRED TRANSACTION PRIVILEGE, SALES, AND/OR USE TAX, INCOME TAX
AND UNEMPLOYMENT AND WITHHOLDING TAX RETURNS BY ARIZONA LNG, AND PAYMENT BY
ARIZONA LNG OF ALL AMOUNTS DUE.
5.
CONDITIONS PRECEDENT TO THE PARTIES'
OBLIGATIONS TO CLOSE
5.1.
CONTINGENCIES OF APOLLO LNG.
APOLLO LNG'S
OBLIGATION TO PURCHASE THE STOCK AND THE OBLIGATIONS OF APOLLO AND APOLLO LNG TO
TAKE THE OTHER ACTIONS REQUIRED TO BE TAKEN BY APOLLO AND APOLLO LNG AT THE
CLOSING IS SUBJECT TO THE SATISFACTION, AT OR PRIOR TO THE CLOSING, OF
12
EACH OF THE FOLLOWING CONDITIONS (ANY OF WHICH MAY BE WAIVED BY APOLLO AND
APOLLO LNG, IN WHOLE OR IN PART, IN WRITING).
(A)
REPRESENTATIONS AND WARRANTIES; AGREEMENTS;
COVENANTS.
EACH OF THE REPRESENTATIONS AND WARRANTIES OF SELLING STOCKHOLDER
SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON THE DATE MADE AND SHALL BE
TRUE AND CORRECT IN ALL MATERIAL RESPECTS AS OF THE CLOSING. EACH OF THE
OBLIGATIONS OF SELLING STOCKHOLDER REQUIRED BY THIS AGREEMENT TO BE PERFORMED BY
HIM AT OR PRIOR TO THE CLOSING SHALL HAVE BEEN DULY PERFORMED AND COMPLIED WITH
IN ALL MATERIAL RESPECTS AS OF THE CLOSING.
(B)
AUTHORIZATIONS; CONSENTS.
ALL PERSONAL,
CORPORATE AND LIMITED LIABILITY COMPANY ACTION NECESSARY TO AUTHORIZE THE
EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND THE CONSUMMATION OF
THE TRANSACTIONS CONTEMPLATED HEREBY SHALL HAVE BEEN DULY AND VALIDLY TAKEN BY
SELLING STOCKHOLDER AND THE COMPANIES, AND ALL NOTICES TO, AND DECLARATIONS,
FILINGS AND REGISTRATIONS WITH, AND CONSENTS, AUTHORIZATIONS, APPROVALS AND
WAIVERS FROM, GOVERNMENTAL AUTHORITIES AND THIRD PERSONS REQUIRED TO CONSUMMATE
THE TRANSACTIONS CONTEMPLATED HEREBY SHALL HAVE BEEN MADE OR OBTAINED.
(C)
ABSENCE OF LITIGATION.
NO ORDER, STAY,
INJUNCTION OR DECREE OF ANY GOVERNMENTAL AUTHORITY SHALL BE IN EFFECT (I) THAT
PREVENTS OR DELAYS THE CONSUMMATION OF ANY OF THE TRANSACTIONS CONTEMPLATED
HEREBY; OR (II) WOULD IMPOSE ANY LIMITATION ON THE ABILITY OF APOLLO LNG
EFFECTIVELY TO EXERCISE FULL RIGHTS OF OWNERSHIP OF THE STOCK AND OF THE MEMBER
UNITS. NO ACTION, SUIT OR PROCEEDING BEFORE ANY GOVERNMENTAL AUTHORITY SHALL BE
PENDING OR THREATENED, AND NO INVESTIGATION BY ANY GOVERNMENTAL AUTHORITY SHALL
HAVE BEEN COMMENCED (AND BE PENDING), SEEKING TO RESTRAIN OR PROHIBIT (OR
QUESTIONING THE VALIDITY OR LEGALITY OF) THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT OR SEEKING DAMAGES IN CONNECTION THEREWITH WHICH
APOLLO OR APOLLO LNG, IN GOOD FAITH AND WITH THE ADVICE OF COUNSEL, BELIEVES
MAKES IT UNDESIRABLE TO PROCEED WITH THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY.
(D)
NO MATERIAL ADVERSE CHANGE.
DURING THE
PERIOD FROM SEPTEMBER 30, 2005, TO THE CLOSING, THERE SHALL NOT HAVE BEEN ANY
MATERIAL ADVERSE CHANGE WITH RESPECT TO HLDM OR ARIZONA LNG.
(E)
ORGANIZATIONAL DOCUMENTS.
SELLING
STOCKHOLDER SHALL HAVE DELIVERED TO APOLLO AND APOLLO LNG EACH OF THE FOLLOWING
DOCUMENTS:
(I)
CERTIFIED