NOTES.
THE NOTES, WHEN ISSUED, SOLD AND
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 FOLLOWING:
(I) THE COMPANY'S FILING ON FORM 10-K FOR THE FISCAL YEAR ENDED
FEBRUARY 28, 2006; (II) THE COMPANY'S FILINGS ON FORM 10-Q FOR THE FISCAL
QUARTERS ENDED MAY 25, 2006, AUGUST 24, 2006 AND NOVEMBER 23, 2006; AND (III)
THE COMPANY'S FILINGS ON FORM 8-K DATED JANUARY 5, 2006,
3
MARCH 30, 2006, MAY 9, 2006, JUNE 5, 2006, JUNE 16, 2006, JULY 7, 2006, OCTOBER
4, 2006, OCTOBER 5, 2006 AND JANUARY 5, 2007 (THE "COMPANY SEC DOCUMENTS").
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SUPERSEDED BY A FILING PRIOR TO THE DATE OF THIS AGREEMENT, THEN ON THE DATE OF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 DOCUMENTS 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 DOCUMENTS 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 DOCUMENTS 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 DOCUMENTS; (II) LIABILITIES INCURRED
IN THE ORDINARY COURSE OF BUSINESS SINCE THE DATE INCLUDED IN THE FINANCIAL
STATEMENTS OF THE COMPANY SEC DOCUMENTS; AND (III) LIABILITIES THAT ARE NOT
MATERIAL IN