(B)
APOLLO LNG AND THE SELLER FURTHER AGREE, UPON REQUEST, TO USE
THEIR COMMERCIALLY REASONABLE EFFORTS TO OBTAIN ANY CERTIFICATE OR OTHER
DOCUMENT FROM ANY GOVERNMENTAL AUTHORITY OR ANY OTHER PERSON AS MAY BE NECESSARY
TO MITIGATE, REDUCE OR ELIMINATE ANY TAX THAT COULD BE IMPOSED (INCLUDING, BUT
NOT LIMITED TO, WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREBY).
9.3.
CONFIDENTIALITY.
ANY INFORMATION SHARED IN CONNECTION WITH TAXES
SHALL BE KEPT CONFIDENTIAL, EXCEPT AS MAY OTHERWISE BE NECESSARY IN CONNECTION
WITH THE FILING OF TAX RETURNS OR REPORTS, REFUND CLAIMS, TAX AUDITS, TAX CLAIMS
AND TAX LITIGATION, OR AS REQUIRED BY LAW.
9.4.
AUDITS.
THE SELLER AND APOLLO LNG SHALL PROVIDE PROMPT WRITTEN
NOTICE TO THE OTHER OF ANY PENDING OR WRITTEN THREAT OF A TAX AUDIT, ASSESSMENT
OR PROCEEDING THAT IT RECEIVES RELATED TO ALT AND ITS ASSETS 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
37
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.
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).
REASONABLE OUT-OF-POCKET EXPENSES WITH RESPECT TO SUCH CONTEST SHALL BE
BORNE BY THE SELLER 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 4 OF
SCHEDULE 6.1(J); 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