DELIVERED IN ACCORDANCE WITH THE TERMS HEREOF FOR THE CONSIDERATION EXPRESSED
HEREIN, WILL BE DULY AND VALIDLY AUTHORIZED AND ISSUED, FULLY PAID, FREE OF
RESTRICTIONS ON TRANSFER, OTHER THAN RESTRICTIONS CONTAINED OR REFERRED TO IN
THE INDENTURE, THE NOTES OR THIS AGREEMENT AND ENFORCEABLE IN ACCORDANCE WITH
THEIR TERMS SUBJECT TO BANKRUPTCY LAWS AND GENERAL PRINCIPLES OF EQUITY.
BASED
IN PART UPON THE REPRESENTATIONS OF THE PURCHASER IN ARTICLE 4 OF THIS
AGREEMENT, THE NOTES WILL BE ISSUED IN COMPLIANCE WITH ALL APPLICABLE UNITED
STATES SECURITIES LAWS.
5.4.
FINANCIAL STATEMENTS AND OTHER INFORMATION.
5.4.1.
THE COMPANY HAS PREVIOUSLY FURNISHED TO THE PURCHASER COPIES OF
THE COMPANY'S FILING ON FORM 10-K FOR THE FISCAL YEAR ENDED FEBRUARY 29, 2008
(THE "COMPANY SEC FILINGS").
3
5.4.2.
AS OF THE TIME IT WAS FILED WITH THE SEC (OR, IF AMENDED OR
SUPERSEDED BY A FILING PRIOR TO THE DATE OF THIS AGREEMENT, THEN ON THE DATE OF
SUCH FILING):
(I) EACH OF THE COMPANY SEC FILINGS COMPLIED IN ALL MATERIAL
RESPECTS WITH SUCH REQUIREMENTS OF THE SECURITIES ACT OR THE EXCHANGE ACT AS
WERE APPLICABLE THERETO; AND (II) NONE OF THE COMPANY SEC FILINGS CONTAINED ANY
UNTRUE STATEMENT OF A MATERIAL FACT OR OMITTED TO STATE A MATERIAL FACT REQUIRED
TO BE STATED THEREIN OR NECESSARY IN ORDER TO MAKE THE STATEMENTS THEREIN, IN
THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING.
5.4.3.
THE FINANCIAL STATEMENTS (INCLUDING ANY RELATED NOTES) CONTAINED
IN THE COMPANY SEC FILINGS FAIRLY PRESENT, IN ALL MATERIAL RESPECTS, THE
CONSOLIDATED FINANCIAL POSITION OF THE COMPANY AND ITS SUBSIDIARIES AS OF THE
RESPECTIVE DATES THEREOF AND THE CONSOLIDATED RESULTS OF OPERATIONS OF THE
COMPANY AND ITS SUBSIDIARIES FOR THE PERIODS COVERED THEREBY IN ACCORDANCE WITH
GAAP APPLIED ON A CONSISTENT BASIS THROUGHOUT THE PERIODS COVERED (EXCEPT AS MAY
BE INDICATED IN THE NOTES TO SUCH FINANCIAL STATEMENTS OR, IN THE CASE OF
UNAUDITED STATEMENTS, AS PERMITTED BY FORM 10-Q OF THE SEC, AND EXCEPT THAT
UNAUDITED FINANCIAL STATEMENTS MAY NOT CONTAIN FOOTNOTES AND ARE SUBJECT TO
YEAR-END ADJUSTMENTS).
5.4.4.
AS OF THE DATE OF THIS AGREEMENT, NEITHER THE COMPANY NOR ANY OF
ITS SUBSIDIARIES HAS ANY LIABILITIES OF THE TYPE REQUIRED TO BE DISCLOSED IN THE
LIABILITIES COLUMN OF A BALANCE SHEET PREPARED IN ACCORDANCE WITH GAAP, EXCEPT
FOR:
(I) LIABILITIES DISCLOSED IN THE FINANCIAL STATEMENTS (INCLUDING ANY
RELATED NOTES) CONTAINED IN THE COMPANY SEC FILINGS; (II) LIABILITIES INCURRED
IN THE ORDINARY COURSE OF BUSINESS SINCE THE DATE INCLUDED IN THE FINANCIAL
STATEMENTS OF THE COMPANY SEC FILINGS; AND (III) LIABILITIES THAT ARE NOT
MATERIAL IN THE AGGREGATE TO THE COMPANY AND ITS SUBSIDIARIES ON A CONSOLIDATED
BASIS.
5.4.5.
THE INFORMATION WITH RESPECT TO THE COMPANY AND ITS SUBSIDIARIES
CONTAINED IN THE PRIVATE PLACEMENT MEMORANDUM DATED APRIL 2008 RELATING TO
$37,500,000 9 3/4% SENIOR SECURED NOTES (THE "SECURED NOTES") OF THE COMPANY DUE
2010 (THE "PLACEMENT MEMORANDUM") WHEN TAKEN AS A WHOLE WITH THE COMPANY SEC
FILINGS DID NOT AS OF THE DATE THEREOF CONTAIN