A NEWLY FORMED LIMITED LIABILITY COMPANY WITHOUT
ANY PROPERTY OR ASSETS OR OPERATIONS OTHER THAN ITS INITIAL CAPITALIZATION.
(B)
THIS AGREEMENT HAS BEEN DULY AND VALIDLY
EXECUTED AND DELIVERED BY THE COMPANY AND (ASSUMING DUE AUTHORIZATION,
EXECUTION, AND DELIVERY BY THE OTHER SIGNATORIES TO THIS AGREEMENT) THIS
AGREEMENT CONSTITUTES THE LEGAL, VALID, AND BINDING OBLIGATION OF THE COMPANY,
ENFORCEABLE AGAINST THE COMPANY IN ACCORDANCE WITH ITS TERMS.
4.2.
CAPITALIZATION.
MGPI WILL BE THE SOLE MEMBER
OF THE COMPANY ON THE EFFECTIVE DATE.
18
ARTICLE V
COVENANTS
5.1.
TAXES MATTERS.
(A)
ANY SALES, USE, TRANSFER, DOCUMENTARY,
REGISTRATION, STAMP, DUTIES, GAINS, RECORDING, AND OTHER SIMILAR TAXES
(INCLUDING RELATED PENALTIES (CIVIL OR CRIMINAL), ADDITIONS TO TAX AND INTEREST)
IMPOSED BY ANY GOVERNMENTAL AUTHORITY WITH RESPECT TO THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT ("TRANSACTION TAXES") SHALL BE THE SOLE
OBLIGATION OF MGPI.
MGPI SHALL PROVIDE WRITTEN NOTICE TO THE COMPANY OF THE
PAYMENT OF AND/OR A WRITTEN RESPONSE TO THE COMPANY UPON ANY REQUEST FOR
INFORMATION REGARDING THE STATUS OF ANY TRANSACTION TAXES.
MGPI SHALL BE
RESPONSIBLE FOR (I) ADMINISTERING THE PAYMENT OF SUCH TRANSACTION TAXES,
(II) DEFENDING OR PURSUING ANY PROCEEDINGS RELATED THERETO, AND (III) PAYING ANY
EXPENSES RELATED THERETO.
(B)
ALL TAXES APPLICABLE TO OR PAYABLE WITH
RESPECT TO WITH THE BUSINESS OR THE CONTRIBUTED ASSETS IN RESPECT OF ANY TAXABLE
PERIODS ENDING ON OR BEFORE THE CLOSING DATE ARE THE RESPONSIBILITY OF AND SHALL
BE PAID BY MGPI.
TAXES RELATING TO ANY TAXABLE PERIOD COMMENCING PRIOR TO AND
ENDING AFTER THE CLOSING DATE (A "STRADDLE PERIOD") SHALL BE PRO-RATED BETWEEN
MGPI AND THE COMPANY AT CLOSING; SUCH TAXES FOR THE TAXABLE PERIOD THROUGH THE
CLOSING DATE ARE THE RESPONSIBILITY OF MGPI AND SUCH TAXES FOR THE TAXABLE
PERIOD AFTER THE CLOSING DATE ARE THE RESPONSIBILITY OF THE COMPANY.
IF THE
AMOUNT OF ANY SUCH ITEM IS NOT ASCERTAINABLE ON THE CLOSING DATE, THE CREDIT
THEREFOR SHALL BE BASED ON THE MOST RECENT AVAILABLE BILL, SUBJECT TO
RECONCILIATION AFTER THE CLOSING DATE WHEN THE ACTUAL BILLS ARE AVAILABLE.
FOR
THE PURPOSES OF THIS SECTION 5.1(B), IN THE CASE OF ANY TAXES THAT ARE IMPOSED
ON A PERIODIC BASIS AND ARE PAYABLE FOR A TAXABLE PERIOD THAT INCLUDES BUT DOES
NOT END AS OF THE CLOSING DATE, THE PORTION OF SUCH TAX THAT RELATES TO THE
PORTION OF SUCH TAXABLE PERIOD ENDING AS OF THE CLOSING DATE SHALL BE DEEMED TO
BE THE AMOUNT OF SUCH TAX FOR THE ENTIRE TAXABLE PERIOD MULTIPLIED BY A
FRACTION, THE NUMERATOR OF WHICH IS THE NUMBER OF DAYS IN THE TAXABLE PERIOD
ENDING AS OF THE CLOSING DATE AND THE DENOMINATOR OF WHICH IS THE NUMBER OF DAYS
IN THE ENTIRE TAXABLE PERIOD.
5.2.
EXCLUDED EQUIPMENT.
UNLESS OTHERWISE AGREED
BY MGPI AND THE COMPANY, MGPI SHALL BE ENTITLED TO STORE THE EXCLUDED EQUIPMENT
RENT-FREE IN ITS CURRENT LOCATION AT THE PLANT UNTIL THE LATER OF (BUT NO EVENT
LONGER THAN THREE YEARS FROM THE CLOSING DATE): (I) THE FIRST ANNIVERSARY OF
THIS AGREEMENT; AND (II)