CONDUCTED.
THE COMPANY IS DULY QUALIFIED AS A FOREIGN ENTITY AND IN GOOD
STANDING IN ALL STATES OR OTHER JURISDICTIONS WHERE THE NATURE AND EXTENT OF THE
BUSINESS TRANSACTED BY IT OR THE OWNERSHIP OF ASSETS MAKES SUCH QUALIFICATION
NECESSARY, EXCEPT FOR THOSE JURISDICTIONS IN WHICH THE FAILURE TO SO QUALIFY
WOULD NOT REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT.
CERTIFIED COPIES OF THE GOVERNING DOCUMENTS OF THE COMPANY HAVE BEEN DELIVERED
TO EACH PURCHASER AND SUCH COPIES OF THE GOVERNING DOCUMENTS ARE CORRECT AND
COMPLETE.
5.2.
AUTHORIZATION.
THE COMPANY HAS TAKEN ALL NECESSARY CORPORATE
ACTION TO AUTHORIZE THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE NOTES
AND THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER AND THEREUNDER.
THIS AGREEMENT
CONSTITUTES THE VALID AND LEGALLY BINDING OBLIGATION OF THE COMPANY ENFORCEABLE
IN ACCORDANCE WITH ITS TERMS SUBJECT TO BANKRUPTCY LAWS AND GENERAL PRINCIPLES
OF EQUITY.
3
5.3.
VALID ISSUANCE OF THE 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 PURCHASERS 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 EACH PURCHASER
COPIES OF THE COMPANY'S FILING ON FORM 10-K FOR THE FISCAL YEAR ENDED
FEBRUARY 29, 2008 (THE "COMPANY SEC FILINGS").
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SUPERSEDED BY A FILING PRIOR TO THE DATE OF THIS AGREEMENT, THEN ON THE DATE OF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