FORM 8-K FILED BY THE COMPANY WITH THE
SECURITIES AND EXCHANGE COMMISSION (THE "SEC") SINCE DECEMBER 31, 2008 SHALL BE
COLLECTIVELY REFERRED TO HEREIN AS THE "COMPANY SEC FILINGS."
THE TERM SHEET
DATED DECEMBER 17, 2009, THE FORM OF WHICH IS ATTACHED AS EXHIBIT E HERETO (THE
"TERM SHEET"), AND THE COMPANY SEC FILINGS SHALL BE COLLECTIVELY REFERRED TO
HEREIN AS THE "DISCLOSURE PACKAGE."
(B)
GOOD STANDING.
THE COMPANY AND EACH OF ITS "SIGNIFICANT
SUBSIDIARIES" (AS SUCH TERM IS DEFINED IN RULE 405) (EACH, A "SIGNIFICANT
SUBSIDIARY" AND TOGETHER, THE "SIGNIFICANT SUBSIDIARIES"), HAS BEEN DULY
INCORPORATED, ORGANIZED OR FORMED AND IS VALIDLY EXISTING IN GOOD STANDING UNDER
THE LAWS OF THE JURISDICTION OF ITS INCORPORATION, ORGANIZATION OR FORMATION,
WITH THE POWER AND AUTHORITY TO OWN, LEASE AND OPERATE ITS PROPERTIES AND
CONDUCT ITS BUSINESS AS DESCRIBED IN THE COMPANY SEC FILINGS; AND EACH OF THE
COMPANY AND ITS SIGNIFICANT SUBSIDIARIES IS DULY QUALIFIED TO DO BUSINESS AND IS
IN GOOD STANDING IN EACH JURISDICTION IN WHICH THE CHARACTER OF THE BUSINESS
CONDUCTED BY IT OR THE LOCATION OF THE PROPERTIES OWNED, LEASED OR OPERATED BY
IT MAKE SUCH QUALIFICATION NECESSARY, EXCEPT WHERE THE FAILURE TO BE SO
QUALIFIED OR IN GOOD STANDING WOULD NOT, INDIVIDUALLY OR IN THE AGGREGATE,
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT ON THE CONDITION
(FINANCIAL OR OTHERWISE), RESULTS OF OPERATIONS OR BUSINESS OF THE COMPANY AND
ITS SUBSIDIARIES TAKEN AS A WHOLE (A "MATERIAL ADVERSE EFFECT"). THE COMPANY
DOES NOT HAVE ANY SUBSIDIARIES OR CONTROL, DIRECTLY OR INDIRECTLY, ANY
CORPORATION, ASSOCIATION OR OTHER ENTITY OTHER THAN THE SUBSIDIARIES LISTED IN
EXHIBIT 21.2 TO THE 2008 FORM 10-K.
(C)
CORPORATE POWER.
THE COMPANY HAS ALL REQUISITE CORPORATE POWER
AND AUTHORITY TO EXECUTE, DELIVER AND PERFORM ITS OBLIGATIONS UNDER THIS
AGREEMENT.
THIS AGREEMENT HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY
THE COMPANY.
(D)
NO DEFAULT.
NEITHER THE COMPANY NOR ANY OF ITS SIGNIFICANT
SUBSIDIARIES (I) IS IN VIOLATION OF ITS CERTIFICATE OF INCORPORATION OR BY-LAWS
OR OTHER ORGANIZATIONAL DOCUMENTS, (II) IS IN DEFAULT, AND NO EVENT HAS OCCURRED
WHICH, WITH NOTICE OR LAPSE OF TIME OR BOTH, WOULD CONSTITUTE SUCH A DEFAULT, IN
THE DUE PERFORMANCE OR OBSERVANCE OF ANY TERM, COVENANT OR CONDITION CONTAINED
IN ANY INDENTURE, MORTGAGE, DEED OF TRUST, LOAN AGREEMENT, LICENSE OR OTHER
AGREEMENT OR INSTRUMENT TO WHICH IT IS A PARTY OR BY WHICH IT IS BOUND OR TO
WHICH ANY OF ITS PROPERTIES OR ASSETS IS SUBJECT OR (III) IS IN VIOLATION OF ANY
LAW, ORDINANCE, RULE, REGULATION OR ORDER OF ANY COURT OR GOVERNMENTAL AGENCY OR
BODY HAVING JURISDICTION OVER IT OR ITS PROPERTY OR ASSETS, EXCEPT IN THE CASE
OF CLAUSES (II) AND (III), TO THE EXTENT ANY SUCH CONFLICT, BREACH, VIOLATION OR
DEFAULT WOULD NOT, INDIVIDUALLY OR IN THE AGGREGATE, REASONABLY BE EXPECTED TO
HAVE A MATERIAL ADVERSE EFFECT.
(E)
ABSENCE OF DEFAULTS AND CONFLICTS.
NONE OF THE EXECUTION,
DELIVERY AND PERFORMANCE OF THIS AGREEMENT NOR THE CONSUMMATION OF ANY OTHER OF
THE TRANSACTIONS CONTEMPLATED