ANNOUNCEMENT WITH RESPECT TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, EXCEPT AS MAY BE REQUIRED BY
LAW OR APPLICABLE STOCK EXCHANGE REGULATIONS.
SECTION 6.10
TAX MATTERS.
(A)
THE SELLER PARTIES AND BUYER AGREE THAT THE TRANSACTIONS PURSUANT
TO THIS AGREEMENT SHALL, FOR FEDERAL INCOME TAX (AND RELATED STATE INCOME TAX)
PURPOSES, BE REPORTED AS FOLLOWS:
(I)
AS A TAXABLE SALE OF ASSETS BY SMITH MARITIME TO THE PARTNERSHIP
IN EXCHANGE FOR THE AMOUNT ALLOCATED TO SUCH SALE PURSUANT TO SCHEDULE 2.8,
FOLLOWED BY THE DISTRIBUTION OF SUCH CASH SALE PROCEEDS TO THE SMITH SELLERS IN
LIQUIDATION OF SMITH MARITIME.
(II)
AS A TAXABLE SALE OF THE GO BIG ASSETS BY SMITH TO THE
PARTNERSHIP TO THE EXTENT ATTRIBUTABLE TO THE AMOUNT ALLOCATED TO SUCH SALE
PURSUANT TO SCHEDULE 2.8.
39
(III)
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 SELLER PARTIES WILL INDEMNIFY AND HOLD THE SUBJECT COMPANIES
AND BUYER HARMLESS FROM (I) ANY LIABILITY FOR TAXES WITH RESPECT TO SMITH ITEMS
(AND ANY OTHER LIABILITY OF ANY OF THE SELLER PARTIES, THEIR AFFILIATES OR THE
SUBJECT COMPANIES FOR TAXES) FOR EVENTS, AND FOR TAX PERIODS (OR PORTIONS
THEREOF) ENDING, ON OR BEFORE THE CLOSING DATE, INCLUDING ANY TAXES IMPOSED
UNDER SECTION 1374 OF THE CODE AS A RESULT OF THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT, AND (II) ANY LIABILITY OF ANY OF THE SUBJECT COMPANIES OR ANY
OTHER ENTITY FOR WHICH ANY OF THE SUBJECT COMPANIES 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 SHALL CAUSE TO BE TIMELY FILED WITH APPROPRIATE GOVERNMENTAL
BODIES ALL TAX RETURNS REQUIRED TO BE FILED BY OR WITH RESPECT TO THE SUBJECT
COMPANIES AND SMITH 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 INCOME OR BUSINESS OR
OCCUPATION TAX) RELATED TO OR ARISING FROM THE TRANSACTIONS CONTEMPLATED HEREIN
SHALL BE BORNE BY BUYER.
SELLER PARTIES AND BUYER SHALL COOPERATE IN TIMELY
MAKING ALL TAX RETURNS AS MAY BE REQUIRED TO COMPLY WITH THE PROVISIONS OF SUCH
TAX LAWS.
SELLER PARTIES SHALL COOPERATE WITH BUYER IN MEETING ANY FILING,
DOCUMENTARY OR EVIDENTIARY REQUIREMENTS NECESSARY TO QUALIFY FOR ANY AVAILABLE
EXEMPTIONS FOR SUCH TAXES.
(D)
SELLER PARTIES SHALL CAUSE THE PROVISIONS OF ANY TAX SHARING
AGREEMENT BETWEEN SELLER PARTIES AND ANY OF THEIR AFFILIATES (OTHER THAN THE
SUBJECT COMPANIES), ON THE ONE HAND,