ANY TIME SINCE
JANUARY 1, 2008, ANY WRITTEN NOTICE OR OTHER COMMUNICATION FROM ANY GOVERNMENTAL
BODY OR ANY OTHER PERSON REGARDING (A) ANY ACTUAL, ALLEGED, POSSIBLE, OR
POTENTIAL VIOLATION OF, OR FAILURE TO COMPLY WITH, ANY LEGAL REQUIREMENT, OR
(B) ANY ACTUAL, ALLEGED, POSSIBLE, OR POTENTIAL OBLIGATION ON THE PART OF
18
THE COMPANY TO UNDERTAKE, OR TO BEAR ALL OR ANY PORTION OF THE COST OF, ANY
REMEDIAL ACTION OF ANY NATURE.
(B)
PART 3.7 OF THE DISCLOSURE LETTER CONTAINS A
COMPLETE AND ACCURATE LIST OF EACH GOVERNMENTAL AUTHORIZATION THAT IS HELD BY
THE COMPANY OR THAT OTHERWISE RELATES TO THE PLANT.
PART 3.7 OF THE DISCLOSURE
LETTER SPECIFICALLY IDENTIFIES AND DISTINGUISHES EACH SUCH GOVERNMENTAL
AUTHORIZATION REQUIRED TO OPERATE THE PLANT THAT IS NOT HELD BY THE COMPANY AS
OF THE DATE HEREOF.
THE GOVERNMENTAL AUTHORIZATIONS LISTED IN PART 3.7 OF THE
DISCLOSURE LETTER COLLECTIVELY CONSTITUTE ALL OF THE GOVERNMENTAL AUTHORIZATIONS
NECESSARY TO PERMIT THE COMPANY (I) TO LAWFULLY CONDUCT AND OPERATE THE BUSINESS
IN THE MANNER THE COMPANY CURRENTLY CONDUCTS AND OPERATES THE BUSINESS (AND IN
THE MANNER THE COMPANY ANTICIPATES CONDUCTING AND OPERATING THE BUSINESS) AND
(II) TO OWN AND USE THE PLANT IN ACCORDANCE WITH SELLER'S HISTORICAL USE.
3.8.
LEGAL PROCEEDINGS; ORDERS
(A)
THERE IS NO PENDING PROCEEDING:
(I)
THAT HAS BEEN COMMENCED BY OR AGAINST
THE COMPANY OR SELLER (WITH RESPECT TO THE BUSINESS) OR THAT OTHERWISE RELATES
TO OR MAY AFFECT THE BUSINESS OF, OR ANY OF THE ASSETS, INCLUDING THE PLANT,
OWNED OR USED BY, THE COMPANY; OR
(II)
THAT CHALLENGES, OR THAT MAY HAVE THE
EFFECT OF PREVENTING, DELAYING, MAKING ILLEGAL, OR OTHERWISE INTERFERING WITH,
ANY OF THE CONTEMPLATED TRANSACTIONS.
(B)
EXCEPT AS SET FORTH IN PART 3.8 OF THE
DISCLOSURE LETTER, THERE IS NO ORDER TO WHICH ANY OF THE COMPANY OR SELLER (WITH
RESPECT TO THE BUSINESS), OR ANY OF THE ASSETS, INCLUDING THE PLANT, OWNED OR
USED BY THE COMPANY ARE SUBJECT.
3.9.
NEWLY-FORMED ENTITY
The Company is a newly-formed entity that has no Contracts or other obligations
with respect to the Plant, except as created or specifically incurred in
connection with the Contemplated Transactions or as described in the last
sentence of Section 3.3.
3.10.
ENVIRONMENTAL MATTERS
Except as set forth in Part 3.10 of the Disclosure Letter:
(A)
THE PLANT IS, AND AT ALL TIMES HAS BEEN, IN
FULL COMPLIANCE WITH ALL ENVIRONMENTAL LAWS.
SELLER HAS PROPERLY OBTAINED AND
IS IN COMPLIANCE WITH ALL GOVERNMENTAL AUTHORIZATIONS AND HAS PROPERLY MADE ALL
FILINGS WITH AND SUBMISSIONS TO ANY GOVERNMENTAL BODY OR OTHER AUTHORITY
REQUIRED PURSUANT TO ANY ENVIRONMENTAL LAW.
NO DEFICIENCIES HAVE BEEN ASSERTED
BY ANY SUCH GOVERNMENTAL BODY WITH RESPECT TO SUCH ITEMS.
19
(B)
NEITHER SELLER NOR THE COMPANY HAS RECEIVED
ANY ACTUAL OR THREATENED ORDER, NOTICE, NOTIFICATION, DEMAND, REQUEST FOR
INFORMATION, CITATION, SUMMONS OR ORDER OR OTHER COMMUNICATION FROM (I) ANY
GOVERNMENTAL BODY OR PRIVATE CITIZEN, (II) THE CURRENT OR PRIOR OWNER OR
OPERATOR OF THE PLANT, OR (III) ANY PERSON OF ANY