2009 Additional Notes means the 10%/12% Senior Convertible PIK Election Notes due 2012 issued by the Company on each of the First 2009 Additional Notes Closing Date, the March 2009 Deferred Interest Additional Notes Closing Date and the Second 2009 Additional Notes Closing Date (such term to include any such notes issued in substitution therefor pursuant to Section 12 of the Agreement and any notes issued in kind as interest pursuant to the terms of the 2009 Additional Notes).
On such Closing Date and also after giving effect to the sale of the 2009 Additional Notes on such date there shall exist no Default or Event of Default.
Neither the sale of the 2009 Additional Notes nor the use of the proceeds thereof will violate or be inconsistent with the provisions of Regulation T, U or X.
The Company covenants and agrees to deliver to Purchaser not later than March 12, 2009 the opinions described in Section 4.2(c) with respect to the First 2009 Additional Notes Closing.
Assuming the accuracy of the representations and warranties set forth in Section 5.2 of the Agreement, the offer and sale of the 2009 Additional Notes to Purchaser is exempt from the registration and prospectus delivery requirements of the Securities Act.
The parties hereto agree that the shares of Common Stock issuable upon conversion of the 2009 Additional Notes shall constitute “Registrable Securities” under the Registration Rights Agreement.