COMPLIANCE WITH APPLICABLE FINANCIAL RECORD
KEEPING AND REPORTING REQUIREMENTS OF THE CURRENCY AND FOREIGN TRANSACTIONS
REPORTING ACT OF 1970, AS AMENDED, THE MONEY LAUNDERING STATUTES OF ALL
JURISDICTIONS TO WHICH THE COMPANY OR ITS SUBSIDIARIES ARE SUBJECT, THE
RULES AND REGULATIONS THEREUNDER AND ANY RELATED OR SIMILAR RULES, REGULATIONS
OR GUIDELINES, ISSUED, ADMINISTERED OR ENFORCED BY ANY GOVERNMENTAL AGENCY
(COLLECTIVELY, THE "MONEY LAUNDERING LAWS"), EXCEPT AS WOULD NOT REASONABLY BE
EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT; AND NO ACTION, SUIT OR
PROCEEDING BY OR BEFORE ANY COURT OR GOVERNMENTAL AGENCY, AUTHORITY OR BODY OR
ANY ARBITRATOR INVOLVING THE COMPANY OR ANY OF ITS SUBSIDIARIES WITH RESPECT TO
THE MONEY LAUNDERING LAWS IS PENDING OR, TO THE KNOWLEDGE OF THE COMPANY,
THREATENED.
(II)
OFF-BALANCE SHEET ARRANGEMENTS.
THERE ARE NO TRANSACTIONS,
ARRANGEMENTS AND OTHER RELATIONSHIPS BETWEEN AND/OR AMONG THE COMPANY, AND/OR,
TO THE KNOWLEDGE OF THE COMPANY, ANY OF ITS AFFILIATES AND ANY UNCONSOLIDATED
ENTITY, INCLUDING, BUT NOT LIMITED TO, ANY STRUCTURAL FINANCE, SPECIAL PURPOSE
OR LIMITED PURPOSE ENTITY (EACH, AN "OFF BALANCE SHEET TRANSACTION") THAT COULD
REASONABLY BE EXPECTED TO AFFECT MATERIALLY THE COMPANY'S LIQUIDITY OR THE
AVAILABILITY OF OR REQUIREMENTS FOR ITS CAPITAL RESOURCES, INCLUDING THOSE OFF
BALANCE SHEET TRANSACTIONS DESCRIBED IN THE COMMISSION'S STATEMENT ABOUT
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITIONS AND RESULTS OF
OPERATIONS
13
(RELEASE NOS.
33-8056; 34-45321; FR-61), REQUIRED TO BE DESCRIBED IN THE
PROSPECTUS WHICH HAVE NOT BEEN DESCRIBED AS REQUIRED.
(JJ)
UNDERWRITER AGREEMENTS.
EXCEPT FOR THE COMPANY'S PREVIOUS CONTROLLED
EQUITY OFFERING AGREEMENT WITH CANTOR FITZGERALD & CO, WHICH WILL EXPIRE
FOLLOWING THE TEN (10) DAY NOTICE PERIOD REQUIRED FOR THE TERMINATION OF SUCH
AGREEMENT, THE COMPANY IS NOT A PARTY TO ANY AGREEMENT WITH AN AGENT OR
UNDERWRITER FOR ANY OTHER "AT-THE-MARKET" OR CONTINUOUS EQUITY TRANSACTION.
(KK)
ERISA.
TO THE KNOWLEDGE OF THE COMPANY, EACH MATERIAL EMPLOYEE BENEFIT
PLAN, WITHIN THE MEANING OF SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), THAT IS MAINTAINED, ADMINISTERED OR
CONTRIBUTED TO BY THE COMPANY OR ANY OF ITS AFFILIATES FOR EMPLOYEES OR FORMER
EMPLOYEES OF THE COMPANY AND ANY OF ITS SUBSIDIARIES HAS BEEN MAINTAINED IN
MATERIAL COMPLIANCE WITH ITS TERMS AND THE REQUIREMENTS OF ANY APPLICABLE
STATUTES, ORDERS, RULES AND REGULATIONS, INCLUDING BUT NOT LIMITED TO ERISA AND
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"); NO PROHIBITED
TRANSACTION, WITHIN THE MEANING OF SECTION 406 OF ERISA OR SECTION 4975 OF THE
CODE, HAS OCCURRED WHICH WOULD RESULT IN A MATERIAL LIABILITY TO THE COMPANY
WITH RESPECT TO ANY SUCH PLAN EXCLUDING TRANSACTIONS EFFECTED PURSUANT TO A
STATUTORY OR ADMINISTRATIVE EXEMPTION; AND FOR EACH SUCH PLAN THAT IS SUBJECT TO
THE FUNDING RULES OF SECTION 412 OF THE CODE OR SECTION 302 OF ERISA, NO
"ACCUMULATED FUNDING DEFICIENCY" AS DEFINED IN SECTION 412 OF THE CODE HAS BEEN
INCURRED, WHETHER OR NOT WAIVED, AND THE FAIR MARKET VALUE OF THE ASSETS OF EACH
SUCH PLAN (EXCLUDING FOR THESE PURPOSES ACCRUED BUT UNPAID CONTRIBUTIONS)
EXCEEDS