NOT BEEN OBTAINED; (II) TO THE KNOWLEDGE OF THE SELLER, NEITHER THE CURRENT
USE OF THE PLANT NOR THE OPERATIONS OF THE COMPANY, VIOLATES (A) ANY INSTRUMENT
OF RECORD, ANY PERMITTED ENCUMBRANCES, ANY AGREEMENT OF THE COMPANY, OR ANY
OTHER AGREEMENT AFFECTING THE PLANT OR (B) ANY APPLICABLE LEGAL REQUIREMENTS;
(III) ALL UTILITIES SERVING THE PLANT ARE SUFFICIENT AND HAVE THE CAPACITY TO
CONDUCT THE BUSINESS; (IV) OTHER THAN COMMITMENTS TO PAY PROPERTY TAXES, THERE
ARE NO DEVELOPMENT AGREEMENTS OR SIMILAR AGREEMENTS (ORAL OR WRITTEN) WITH OR
COMMITMENTS TO GOVERNMENTAL AUTHORITIES, AGENCIES, UTILITIES OR
QUASI-GOVERNMENTAL ENTITIES WITH RESPECT TO THE REAL PROPERTY OR ANY PORTION
THEREOF, INCLUDING ANY AGREEMENT WHICH IMPOSES AN OBLIGATION UPON THE COMPANY TO
MAKE ANY CONTRIBUTION OR DEDICATION OF MONEY OR LAND OR TO CONSTRUCT, INSTALL OR
MAINTAIN ANY IMPROVEMENTS OF A PUBLIC OR PRIVATE NATURE ON OR OFF THE PLANT, OR
WHICH REQUIRES THE COMPANY TO MAINTAIN CERTAIN EMPLOYMENT LEVELS AT THE PLANT;
(V) THE PLANT HAS REASONABLE ACCESS TO PUBLIC ROADS AND UTILITIES; AND (VI) TO
THE KNOWLEDGE OF THE SELLER, THE PLANT AND ITS CONTINUED USE,
15
OCCUPANCY AND OPERATION AS CURRENTLY USED, OCCUPIED AND OPERATED, DOES NOT IN
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 THE SELLER, THERE HAS
BEEN NO CLEANUP PERFORMED AT THE PLANT THAT WOULD ENTITLE A THIRD PARTY TO A
LIEN FOR REIMBURSEMENT OF ITS CLEANUP COSTS.
3.5.
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
building, plants, structures and equipment of the Company are sufficient for the
conduct of the Business after the Closing in the manner contemplated by the LLC
Agreement.
3.6.
TAXES
EXCEPT AS SET FORTH IN PART 3.6 OF THE DISCLOSURE LETTER:
(A)
THE COMPANY IS A NEWLY-FORMED ENTITY AND
HAS FILED NO TAX RETURNS.
THE SELLER 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.
THE SELLER IS NOT
CURRENTLY THE BENEFICIARY OF ANY EXTENSION OF TIME WITHIN WHICH TO FILE ANY TAX
RETURN RELATING TO THE BUSINESS.
(B)
ALL TAXES (WHETHER OR NOT REFLECTED ON ANY
TAX RETURN) OWED BY THE SELLER WITH RESPECT TO THE BUSINESS HAVE BEEN TIMELY AND
FULLY PAID.
(C)
THERE ARE NO AUDITS OR EXAMINATIONS OF ANY
TAX RETURNS OF THE SELLER RELATING TO THE BUSINESS, PENDING OR THREATENED.
THE
SELLER IS NOT A PARTY TO ANY ACTION OR PROCEEDING BY ANY TAX AUTHORITY FOR THE
ASSESSMENT OR COLLECTION OF TAXES OF THE