ANY MATERIAL RESPECT CONSTITUTE A
NONCONFORMING USE UNDER ANY APPLICABLE BUILDING, ZONING, SUBDIVISION AND OTHER
LAND USE AND SIMILAR LAWS, REGULATIONS AND ORDINANCES.
(E)
TO THE KNOWLEDGE OF MGPI, THERE HAS BEEN NO
CLEANUP PERFORMED AT THE PLANT THAT WOULD ENTITLE A THIRD PARTY TO A LIEN FOR
REIMBURSEMENT OF ITS CLEANUP COSTS.
3.4.
CONDITION AND SUFFICIENCY OF ASSETS.
THE
BUILDINGS, PLANTS, STRUCTURES AND EQUIPMENT OF THE PLANT WERE STRUCTURALLY SOUND
AND IN GOOD OPERATING CONDITION AND REPAIR AT THE TIME THE PLANT WAS SHUTDOWN IN
FEBRUARY 2009, ORDINARY WEAR AND TEAR EXCEPTED.
THE BUILDINGS, PLANTS,
STRUCTURES AND EQUIPMENT OF THE PLANT ARE STRUCTURALLY SOUND AND IN GOOD
OPERATING CONDITION AND REPAIR IN LIGHT OF THE CURRENT PLANT SHUTDOWN.
THE
CONTRIBUTED ASSETS ARE SUFFICIENT FOR THE CONDUCT OF THE BUSINESS AFTER THE
CLOSING.
3.5.
TAXES.
EXCEPT AS SET FORTH IN PART 3.5 OF THE
DISCLOSURE LETTER:
(A)
MGPI HAS TIMELY FILED ALL TAX RETURNS
REQUIRED TO BE FILED BY IT WITH RESPECT TO THE BUSINESS.
ALL SUCH TAX RETURNS,
AS THE SAME MAY HAVE BEEN AMENDED, ARE TRUE, COMPLETE, AND CORRECT.
MGPI IS NOT
CURRENTLY THE BENEFICIARY OF ANY EXTENSION OF TIME WITHIN WHICH TO FILE ANY TAX
RETURN RELATING TO THE BUSINESS.
12
(B)
ALL TAXES (WHETHER OR NOT REFLECTED ON ANY
TAX RETURN) OWED BY MGPI WITH RESPECT TO THE BUSINESS HAVE BEEN TIMELY AND FULLY
PAID.
(C)
THERE ARE NO AUDITS OR EXAMINATIONS OF ANY
TAX RETURNS OF MGPI RELATING TO THE BUSINESS, PENDING OR THREATENED.
MGPI IS
NOT A PARTY TO ANY ACTION OR PROCEEDING BY ANY TAX AUTHORITY FOR THE ASSESSMENT
OR COLLECTION OF TAXES OF THE BUSINESS, NOR HAS SUCH EVENT BEEN ASSERTED OR
THREATENED.
(D)
MGPI, WITH RESPECT TO THE BUSINESS, HAS
TIMELY AND PROPERLY WITHHELD AND PAID TO THE PROPER TAX AUTHORITIES ALL TAXES
REQUIRED TO HAVE BEEN WITHHELD AND PAID IN CONNECTION WITH AMOUNTS PAID OR OWING
TO ANY EMPLOYEE, INDEPENDENT CONTRACTOR, CREDITOR, STOCKHOLDER, OR OTHER THIRD
PARTY, INCLUDING, BUT NOT LIMITED TO, AMOUNTS REQUIRED TO BE WITHHELD UNDER
SECTIONS 1441 AND 1442 OF THE IRC (OR SIMILAR PROVISIONS OF STATE, LOCAL OR
FOREIGN LAW).
(E)
THE MGPI, WITH RESPECT TO THE BUSINESS, HAS
NOT WAIVED ANY STATUTORY PERIOD OF LIMITATIONS FOR THE ASSESSMENT OF ANY TAXES
OR AGREED TO ANY EXTENSION OF TIME WITH RESPECT TO A TAX ASSESSMENT OR
DEFICIENCY OTHER THAN IN THE CASE OF ANY SUCH WAIVERS OR EXTENSIONS IN RESPECT
OF AN ASSESSMENT OR DEFICIENCY OF TAX THE LIABILITY OF WHICH HAS BEEN SATISFIED
OR SETTLED.
(F)
NO CLAIM HAS BEEN MADE BY A TAX AUTHORITY
IN A JURISDICTION WHERE MGPI, WITH RESPECT TO THE BUSINESS, DOES NOT FILE TAX
RETURNS THAT THE BUSINESS IS OR MAY BE SUBJECT TO TAXATION BY THAT JURISDICTION.
(G)
NONE OF THE CONTRIBUTED ASSETS (I) IS
REQUIRED TO BE TREATED AS BEING OWNED BY ANY OTHER PERSON PURSUANT TO THE
SO-CALLED SAFE HARBOR LEASE PROVISIONS OF FORMER SECTION 168(F)(8) OF THE IRC,
(II) SECURE ANY DEBT THE INTEREST ON