Common use of First Closing Clause in Contracts

First Closing. The closing of the sale and purchase of Series C Notes to be purchased by the Purchasers shall occur at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m., local time, at a closing (the “First Closing”) on December 22, 2006 (the “First Closing Date”), or such other date and place as agreed in writing by Prudential and the Company. At the First Closing the Company will deliver to each Purchaser the Series C Notes to be purchased by such Purchaser in the form of a single Note of such Series (or such greater number of such Notes in denominations of at least $100,000, as the Purchasers may request), dated the First Closing Date and registered in such Purchaser’s name (or in the name of such Purchaser’s nominee), as indicated in Schedule A, against delivery by such Purchaser to the Company or its order of immediately available funds in the amount of the purchase price therefor as directed by the Company in Schedule 3. The obligations of Prudential to enter into this Agreement and to make the Facility available to the Company, and of the Purchasers of the Series C Notes to purchase the Series C Notes are subject to the satisfaction, on or before the First Closing Date, of the conditions set forth in Section 4.1 below. If, on the First Closing Date the Company fails to tender to the Purchasers the Series C Notes to be acquired by such Purchasers on the First Closing Date, or if the conditions specified in Section 4.1 have not been fulfilled to Prudential’s or each Purchaser’s satisfaction, Prudential or such Purchaser shall, at its election, be relieved of all further obligations under this Agreement without thereby waiving any rights Prudential or each such Purchaser may have by reason of such failure or such nonfulfillment.

First Closing. (a) Subject to the terms and conditions set forth in this Agreement, at the First Closing the Company shall issue and sell to Investor, and Investor shall purchase from the Company, a Note and a Warrant. The closing of the sale and purchase of Series C Notes to be purchased by the Purchasers First Closing shall occur take place at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇ at 10:00 a.m., local 10:30 a.m. (New York City time, at a closing (the “First Closing”) on December 22, 2006 (the “First Closing Date”), or such other date and place as agreed in writing by Prudential and the Company. At the First Closing the Company will deliver to each Purchaser the Series C Notes to be purchased by such Purchaser in the form of a single Note of such Series (or such greater number of such Notes in denominations of at least $100,000, as the Purchasers may request), dated the First Closing Date and or at such other location or time as the parties may agree. (b) At the First Closing, the Company shall deliver or cause to be delivered to Investor the following (the “Company Deliverables”): (i) Note in the aggregate principal amount of $862,500, minus the up-front interest charge of $112,500, resulting in a net principal amount of $750,000, registered in such Purchaser’s name (or in the name of such Purchaser’s nomineeInvestor; and (ii) Warrant, registered in the name of Investor, pursuant to which Investor shall have the right to acquire the number of shares of Common Stock equal to 50% of the Underlying Shares issuable upon an assumed conversion of the Note issuable to Investor in accordance with Section 2.1(b)(i) (without regard to any conversion restrictions contained thereunder), as indicated in Schedule A, against delivery by such Purchaser to at the Company or its order of immediately available funds in the amount price of the purchase price therefor as directed Company’s next registered offering, provided, however, that if no such offering closes by the Company in Schedule 3. The obligations six month anniversary of Prudential to enter into this Agreement and to make the Facility available to the Company, and of the Purchasers of the Series C Notes to purchase the Series C Notes are subject to the satisfaction, on or before the First Closing Date, then the Warrant Shares of the conditions set forth Warrant shall be equal to 50% of the Underlying Shares issuable upon an assumed conversion of the Note issuable to Investor in accordance with Section 4.1 below2.1(b)(i) at the closing price of the Common Stock on the six month anniversary of the First Closing Date. If, on If the six month anniversary of the First Closing Date occurs on a day in which the shares are not being traded, then the Warrant Shares will be determined using the closing price of the Common Stock on the next Trading Day. (c) At the First Closing, Investor shall deliver or cause to be delivered to the Company fails $750,000, in United States dollars and in immediately available funds, by wire transfer to tender to an account designated in writing by the Purchasers Company for such purpose (the Series C Notes to be acquired by such Purchasers on the First Closing Date, or if the conditions specified in Section 4.1 have not been fulfilled to Prudential’s or each Purchaser’s satisfaction, Prudential or such Purchaser shall, at its election, be relieved of all further obligations under this Agreement without thereby waiving any rights Prudential or each such Purchaser may have by reason of such failure or such nonfulfillment“Investor Deliverables”).

First Closing. The closing Subject to the satisfaction or waiver of the conditions set forth in Section 4.2(a) and Section 4.2(b) below, the completion of the purchase and sale of the First Closing Shares and purchase of Series C Notes to be purchased by the Purchasers shall occur at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m., local time, at a closing First Closing Warrants (the “First Closing”) on December 22, 2006 shall occur no later than the second business day after the execution of this Agreement by the Investors and the Company (the “First Closing Date”), or such other date and place in accordance with Rule 15c6-l promulgated under the Securities Exchange Act of 1934, as agreed in writing by Prudential and amended (the Company“Exchange Act”). At the First Closing Closing, (a) the Company will shall cause ▇▇▇▇▇ Fargo Shareowner Services, the Company’s “Transfer Agent”, to deliver to each Purchaser Investor the Series C Notes to be purchased by such Purchaser in number of First Closing Shares set forth on the form of a single Note Signature Page of such Series (or such greater number of such Notes in denominations of at least $100,000, as the Purchasers may request), dated the First Closing Date and Investor registered in such Purchaser’s name (or in the name of such Purchaser’s nomineeInvestor or, if so indicated on the Investor Questionnaire of such Investor attached hereto as Exhibit A, in the name of a nominee designated by such Investor, (b) the Company shall cause to be delivered to such Investor a First Closing Warrant for the number of First Closing Warrant Shares set forth on the Signature Page of such Investor and (c) the aggregate purchase price for the First Closing Shares and the First Closing Warrants being purchased by such Investor at such First Closing as set forth on the Signature Page of such Investor will be delivered by or on behalf of such Investor to the Company. Notwithstanding anything contained herein to the contrary, if the First Closing shall not have occurred on or prior to the date that is two (2) business days after the execution of this Agreement by the Investors and the Company (unless the First Closing shall not have occurred due to a breach by an Investor of the terms hereof), as indicated in Schedule A, against delivery by such Purchaser then the Investors may terminate this Agreement without further liability of any kind to the Company or its order the Investors, provided that (i) any such termination of immediately available funds in the amount of the purchase price therefor as directed by the Company in Schedule 3. The obligations of Prudential to enter into this Agreement and to make the Facility available shall not relieve any party hereto of any liability in respect of any breach hereof arising prior to the Companytermination of this Agreement (or following such termination with respect to any provisions that survive the termination of this Agreement), and (ii) this last sentence of the Purchasers of the Series C Notes to purchase the Series C Notes are subject to the satisfactionSection 4.1(a) and Sections 2.3, on or before the First Closing Date6, of the conditions set forth in Section 4.1 below. If7, on the First Closing Date the Company fails to tender to the Purchasers the Series C Notes to be acquired by 8, 9, 10, 11, 12, 13, 14, 15, 18, 19, 23 and 24 shall survive any such Purchasers on the First Closing Date, or if the conditions specified in Section 4.1 have not been fulfilled to Prudential’s or each Purchaser’s satisfaction, Prudential or such Purchaser shall, at its election, be relieved of all further obligations under this Agreement without thereby waiving any rights Prudential or each such Purchaser may have by reason of such failure or such nonfulfillmenttermination.

First Closing. 4.1.1 The closing of the sale and purchase of Series C Notes an aggregate of $43,500,000 in principal amount of the Debentures to be purchased by the Purchasers Charterhouse shall occur at the offices of ▇▇▇Proskauer Rose LLP ("Proskauer"), ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇, ▇▇▇▇▇, at 10:00 9:00 a.m., local timeEastern Standard Time, at a closing (the “"First Closing”") on December 22the twelfth Business Day following the execution of this Agreement, 2006 subject to the satisfaction or waiver of the conditions set forth in Section 5.1 (the “"First Closing Issue Date”), ") or such other date and place Business Day thereafter as may be agreed in writing upon by Prudential Charterhouse and the Company. At the First Closing Closing, the Company will deliver to each Purchaser Charterhouse the Series C Notes Debentures to be purchased by such Purchaser Charterhouse in the form of a single Note of such Series Debenture (or such greater number of such Notes in denominations of at least $100,000, Debentures as the Purchasers Charterhouse may request), ) dated the First Closing Issue Date and registered in such Purchaser’s Charterhouse's name (or in the name of such Purchaser’s Charterhouse's nominee), as indicated in Schedule A, against delivery by such Purchaser Charterhouse to the Company or its order of immediately available funds in the amount of the purchase price therefor as directed by wire transfer for the account of the Company to such bank account as the Company shall have notified Charterhouse in Schedule 3. The obligations of Prudential to enter into this Agreement and to make the Facility available to the Company, and of the Purchasers of the Series C Notes to purchase the Series C Notes are subject to the satisfaction, on or before writing. (a) If at the First Closing Date, of the conditions set forth in Section 4.1 below. If, on the First Closing Date the Company fails shall fail to tender such Debentures to the Purchasers the Series C Notes to be acquired by such Purchasers on the First Closing DateCharterhouse as provided above in this Section 4.1, or if any of the conditions specified in Section 4.1 5.1.1 shall not have not been fulfilled to Prudential’s or each Purchaser’s Charterhouse's satisfaction, Prudential or such Purchaser Charterhouse shall, at its Charterhouse's election, be relieved of all further obligations under this Agreement, without thereby waiving any rights Charterhouse may have by reason of such failure or such nonfulfillment. (b) If at the First Closing Charterhouse shall fail to pay the purchase price for the Debentures to the Company as provided above in this Section 4.1, or any of the conditions specified in Section 5.1.2 shall not have been fulfilled to the Company's satisfaction, the Company shall, at the Company's election, be relieved of all further obligations under this Agreement (other than as provided in Section 17.1), without thereby waiving any rights Prudential or each such Purchaser the Company may have by reason of such failure or such nonfulfillment.

First Closing. The closing of the purchase and sale of the Tranche I Notes and purchase of Series C Notes to be purchased by First Issuance Warrants (the Purchasers "FIRST CLOSING") shall occur at the offices of Irell & Manella LLP ("I&M"), 1800 Avenue of the Stars, Suite 900, Los Angeles, ▇▇▇▇▇▇rnia 90067, as ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ (▇) ▇▇▇▇▇▇▇▇ ▇▇▇▇) ▇▇ter the satisfaction or waiver of all of the conditions to the First Closing set forth herein, or at such other place and time as the Company and Purchasers may agree. At the First Closing, the Company shall deliver to Purchasers the executed Tranche I Notes, the First Issuance Warrants and an executed Security Agreement in the form of Exhibit F hereto, and Purchasers shall deliver to the Company $1.2 Million (less fees to be paid pursuant to Section 11.2) in immediately available funds. At the First Closing, the parties hereto will also duly execute and deliver the Registration Rights Agreement in the form of Exhibit G hereto (the "REGISTRATION RIGHTS AGREEMENT") and Purchasers shall receive (i) an opinion from Latham & Watkins LLP covering matters described in Exhibit H; (ii) the ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ g A▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m., local time, at a closing (the “First Closing”) on December 22, 2006 (the “First Closing Date”), or such other date and place as agreed in writing by Prudential and the Company. At the First Closing the Company will deliver to each Purchaser the Series C Notes to be purchased by such Purchaser ts in the form of Exhibit I hereto from certain officers and directors of the Company; (iii) the Series A Voting Agreements in the form of Exhibit J hereto from holders of a single Note majority of such the outstanding shares of Series A Preferred Stock and (or such greater number iv) resolutions of such Notes the Board of Directors of the Company authorizing the transactions contemplated hereby, certified by the Company's secretary in denominations of at least $100,000, as the Purchasers may request), dated form reasonably satisfactory to Purchasers. The date on which the First Closing Date and registered in such Purchaser’s name (or in occurs is hereinafter referred to as the name of such Purchaser’s nominee), as indicated in Schedule A, against delivery by such Purchaser to the Company or its order of immediately available funds in the amount of the purchase price therefor as directed by the Company in Schedule 3. The obligations of Prudential to enter into this Agreement and to make the Facility available to the Company, and of the Purchasers of the Series C Notes to purchase the Series C Notes are subject to the satisfaction, on or before the First Closing Date, of the conditions set forth in Section 4.1 below. If, on the First Closing Date the Company fails to tender to the Purchasers the Series C Notes to be acquired by such Purchasers on the First Closing Date, or if the conditions specified in Section 4.1 have not been fulfilled to Prudential’s or each Purchaser’s satisfaction, Prudential or such Purchaser shall, at its election, be relieved of all further obligations under this Agreement without thereby waiving any rights Prudential or each such Purchaser may have by reason of such failure or such nonfulfillment"FIRST CLOSING DATE."

First Closing. The closing of the initial issuance and sale of Notes and Series A Warrants pursuant to Subsection 1.3 hereof and certain of the other transactions contemplated hereby (the "First Closing") shall take place at the offices of Good▇▇▇, ▇▇octer & Hoar ▇▇▇, Exchange Place, Boston, Massachusetts, on January 31, 1997 or at such other place or on such other date as the Principal Purchaser and the Company may agree upon (such date on which the First Closing shall have actually occurred, the "First Closing Date"). At the First Closing, the Company will deliver or cause to be delivered to each Purchaser, a single Note in the principal amount specified opposite such Purchaser's name on the signature page hereto, and a single Series A Warrant certificate to purchase the number of shares of Common Stock specified opposite such Purchaser's name on the signature page hereto (or such greater number of Notes or Warrant certificates as such Purchaser may request upon four (4) days prior notification), in each case dated the date of the First Closing and registered in such Purchaser's name or (upon four (4) days prior notification) that of its nominee, against payment of the purchase price therefor in the amount specified opposite such Purchaser's name on the signature page hereto. If at the First Closing the Company shall fail to tender to the Purchasers any of the Notes or Series C Notes A Warrants to be purchased by the Purchasers shall occur at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m., local time, at a closing (the “First Closing”) on December 22, 2006 (the “First Closing Date”), or such other date and place as agreed provided in writing by Prudential and the Company. At the First Closing the Company will deliver to each Purchaser the Series C Notes to be purchased by such Purchaser in the form of a single Note of such Series (or such greater number of such Notes in denominations of at least $100,000, as the Purchasers may request), dated the First Closing Date and registered in such Purchaser’s name (or in the name of such Purchaser’s nominee), as indicated in Schedule A, against delivery by such Purchaser to the Company or its order of immediately available funds in the amount of the purchase price therefor as directed by the Company in Schedule 3. The obligations of Prudential to enter into this Agreement and to make the Facility available to the Company, and of the Purchasers of the Series C Notes to purchase the Series C Notes are subject to the satisfaction, on or before the First Closing Date, of the conditions set forth in Section 4.1 below. If, on the First Closing Date the Company fails to tender to the Purchasers the Series C Notes to be acquired by such Purchasers on the First Closing DateSubsection 2.1, or if any of the conditions specified in Section 4.1 Subsection 3.1 required to be satisfied at or prior to the First Closing shall not have not been fulfilled to Prudential’s satisfied or each waived by the Principal Purchaser’s satisfaction, Prudential or such Purchaser the Purchasers shall, at its their election, be relieved of all further obligations under this Agreement Agreement, without thereby waiving any other respective rights Prudential or each such Purchaser they may have by reason of such failure or such nonfulfillmentnon-fulfillment.

First Closing. (i) The closing consummation of the purchase and sale of the Series B-1 12.75% Preferred Stock and purchase of Series C Notes to be purchased by Warrants in accordance with Section 1.2(a) and the Purchasers other transactions contemplated hereby at the first closing hereunder (the “First Closing”) shall occur take place at the offices of ▇▇▇▇▇▇▇ ▇▇& ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ , ▇▇▇▇▇▇▇▇▇▇, ▇.▇▇ ▇▇▇▇ . ▇▇▇▇▇, at 10:00 a.m., local a.m. New York City time, at a closing as promptly as practicable (but no more than three (3) Business Days) following the “First Closing”) first date on December 22, 2006 (the “First Closing Date”), or such other date and place as agreed in writing by Prudential and the Company. At the First Closing the Company will deliver to each Purchaser the Series C Notes to be purchased by such Purchaser in the form of a single Note of such Series (or such greater number of such Notes in denominations of at least $100,000, as the Purchasers may request), dated the First Closing Date and registered in such Purchaser’s name (or in the name of such Purchaser’s nominee), as indicated in Schedule A, against delivery by such Purchaser to the Company or its order of immediately available funds in the amount of the purchase price therefor as directed by the Company in Schedule 3. The obligations of Prudential to enter into this Agreement and to make the Facility available to the Company, and of the Purchasers of the Series C Notes to purchase the Series C Notes are subject to the satisfaction, on or before the First Closing Date, of the which all conditions set forth in Section 4.1 below. If4 hereof have been satisfied or waived (other than those conditions that by their nature are to be satisfied by actions taken at the First Closing), on or at such other time and place as the Company and the Investors shall mutually agree. (ii) At the First Closing, the Company shall deliver to each Investor: (A) a certificate or certificates representing the shares of Series B-1 12.75% Preferred Stock and Warrants to be issued to such Investor at the First Closing, as set forth in Section 1.2(a) of this Agreement, (B) each Transaction Document to be executed by the Company other than this Agreement, the Strategic Relationship Agreement and Transaction Documents to be executed at the Second Closing or the Third Closing, executed by the Company, and (C) such other documents and instruments to be delivered by the Company to the Investors at the First Closing Date pursuant to Section 4. (iii) At the First Closing, each Investor shall deliver to the Company: (A) the purchase price for the shares of Series B-1 12.75% Preferred Stock and Warrants issued to such Investor at the First Closing, by wire transfer of immediately available funds or such other form of payment as may be approved by the Company; (B) each Transaction Document to be executed by such Investor other than this Agreement, the Strategic Relationship Agreement and Transaction Documents to be executed at the Second Closing or the Third Closing, executed by such Investor; and (C) such other documents and instruments to be delivered by such Investor to the Company fails to tender to the Purchasers the Series C Notes to be acquired by such Purchasers on at the First Closing Date, or if the conditions specified in pursuant to Section 4.1 have not been fulfilled to Prudential’s or each Purchaser’s satisfaction, Prudential or such Purchaser shall, at its election, be relieved of all further obligations under this Agreement without thereby waiving any rights Prudential or each such Purchaser may have by reason of such failure or such nonfulfillment4.

First Closing. The closing of the sale and purchase of the Series C T Notes (each purchaser of Series T Notes, a “Series T Purchaser”), the Series U Notes (each purchaser of Series U Notes, a “Series U Purchaser”), the Series V Notes (each purchaser of Series V Notes, a “Series V Purchaser”) and the Series W Notes (each purchaser of Series W Notes, a “Series W Purchaser”), together with the Series T Purchasers, the Series U Purchasers, the Series V Purchaser and the Series W Purchasers, collectively, the “First Closing Purchasers”) to be purchased by each of the First Closing Purchasers shall occur at a closing (the “First Closing”) on December 13, 2018 (the date of the First Closing being referred to herein as the “First Closing Date”) at the offices of ▇▇▇▇▇▇▇ , ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇ at 10:00 a.m., local time, at a closing (the “First Closing”) on December 22, 2006 (the “First Closing Date”), or such other date and place as agreed in writing by Prudential and the Company. At the First Closing Closing, the Company will deliver to each First Closing Purchaser the Series C Notes to be purchased by such First Closing Purchaser at the First Closing in the form of a single Note for each series of Notes to be purchased by such Series First Closing Purchaser (or such greater number of such Notes of each applicable series in denominations of at least €1,000,000 or $100,0001,000,000, as the Purchasers applicable, as such First Closing Purchaser may request), dated the First Closing Date and registered in such First Closing Purchaser’s name (or in the name of such Purchaser’s its nominee), as indicated in Schedule A, against delivery by such First Closing Purchaser to the Company or its order of immediately available funds in the amount of the purchase price therefor as directed by wire transfer of immediately available funds for the account of the Company in Schedule 3. The obligations of Prudential to enter into this Agreement and to make the Facility available to the Company, and of the Purchasers of the Series C Notes to purchase the Series C Notes are subject to the satisfaction, on or before the First Closing Date, of the conditions as set forth in the funding instructions required by Section 4.1 below. If, on the First Closing Date the Company fails to tender to the Purchasers the Series C Notes to be acquired by such Purchasers on the First Closing Date, or if the conditions specified in Section 4.1 have not been fulfilled to Prudential’s or each Purchaser’s satisfaction, Prudential or such Purchaser shall, at its election, be relieved of all further obligations under this Agreement without thereby waiving any rights Prudential or each such Purchaser may have by reason of such failure or such nonfulfillment4.10.

First Closing. The closing of the sale and purchase of the Series C D Notes to be purchased by the Purchasers each Purchaser of a Series D Note (each such Purchaser of a Series D Note, a “First Closing Purchaser”), shall occur at a closing (the “First Closing”) to be held not later than 1:00 p.m. New York time (the First Closing Purchasers’ reinvestment deadline) at the offices of ▇▇▇▇▇▇▇ , ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m., local time, at a closing (the “First Closing”) -▇▇▇▇ on December 22, 2006 2017 (the “First Closing Date”), or such other date and place as agreed in writing by Prudential and the Company. At the First Closing Closing, the Company will deliver to each First Closing Purchaser the Series C D Notes to be purchased by such First Closing Purchaser in the form of a single Series D Note of such Series (or such greater number of such Series D Notes in denominations of at least $100,000, 100,000 as the Purchasers such First Closing Purchaser may request), ) dated the First Closing Date and registered in such First Closing Purchaser’s name (or in the name of such Purchaser’s its nominee), as indicated in Schedule A, against delivery by such First Closing Purchaser to the Company or its order of immediately available funds in the amount of the purchase price therefor as directed by wire transfer of immediately available funds for the account of the Company in accordance with the wire instructions set forth in the Funding Instruction Letter delivered by the Company in Schedule 3connection with such First Closing. The obligations of Prudential to enter into this Agreement and to make the Facility available to the Company, and of the Purchasers of the Series C Notes to purchase the Series C Notes are subject to the satisfaction, on or before If at the First Closing Date, of the conditions set forth in Section 4.1 below. If, on the Company shall fail to tender such Series D Notes to any First Closing Date the Company fails to tender to the Purchasers the Series C Notes to be acquired by such Purchasers on the First Closing DatePurchaser as provided above in this Section 3.1, or if any of the conditions specified in Section 4.1 4 shall not have not been fulfilled to Prudential’s or each such First Closing Purchaser’s satisfaction, Prudential or such First Closing Purchaser shall, at its election, be relieved of all further obligations under this Agreement with respect to Series D Notes to be purchased by such First Closing Purchaser at the First Closing, without thereby waiving any rights Prudential or each such First Closing Purchaser may have by reason of any of the conditions specified in Section 4 not having been fulfilled to such First Closing Purchaser’s satisfaction or such failure or by the Company to tender such nonfulfillmentSeries D Notes.

First Closing. (i) The closing consummation of the purchase and sale of the Series B-1 12.75% Preferred Stock and purchase of Series C Notes to be purchased by Warrants in accordance with Section ‎1.2(a) and the Purchasers other transactions contemplated hereby at the first closing hereunder (the “First Closing”) shall occur take place at the offices of ▇▇▇▇▇▇▇ ▇▇& ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ , ▇▇▇▇▇▇▇▇▇▇, ▇.▇▇ ▇▇▇▇ . ▇▇▇▇▇, at 10:00 a.m., local a.m. New York City time, at a closing as promptly as practicable (but no more than three (3) Business Days) following the “First Closing”) first date on December 22, 2006 (the “First Closing Date”), or such other date and place as agreed in writing by Prudential and the Company. At the First Closing the Company will deliver to each Purchaser the Series C Notes to be purchased by such Purchaser in the form of a single Note of such Series (or such greater number of such Notes in denominations of at least $100,000, as the Purchasers may request), dated the First Closing Date and registered in such Purchaser’s name (or in the name of such Purchaser’s nominee), as indicated in Schedule A, against delivery by such Purchaser to the Company or its order of immediately available funds in the amount of the purchase price therefor as directed by the Company in Schedule 3. The obligations of Prudential to enter into this Agreement and to make the Facility available to the Company, and of the Purchasers of the Series C Notes to purchase the Series C Notes are subject to the satisfaction, on or before the First Closing Date, of the which all conditions set forth in Section 4.1 below. If‎4 hereof have been satisfied or waived (other than those conditions that by their nature are to be satisfied by actions taken at the First Closing), on or at such other time and place as the Company and the Investors shall mutually agree. (ii) At the First Closing, the Company shall deliver to each Investor: (A) a certificate or certificates representing the shares of Series B-1 12.75% Preferred Stock and Warrants to be issued to such Investor at the First Closing, as set forth in Section ‎1.2(a) of this Agreement, (B) each Transaction Document to be executed by the Company other than this Agreement, the Strategic Relationship Agreement and Transaction Documents to be executed at the Second Closing or the Third Closing, executed by the Company, and (C) such other documents and instruments to be delivered by the Company to the Investors at the First Closing Date pursuant to Section ‎4. (iii) At the First Closing, each Investor shall deliver to the Company: (A) the purchase price for the shares of Series B-1 12.75% Preferred Stock and Warrants issued to such Investor at the First Closing, by wire transfer of immediately available funds or such other form of payment as may be approved by the Company; (B) each Transaction Document to be executed by such Investor other than this Agreement, the Strategic Relationship Agreement and Transaction Documents to be executed at the Second Closing or the Third Closing, executed by such Investor; and (C) such other documents and instruments to be delivered by such Investor to the Company fails to tender to the Purchasers the Series C Notes to be acquired by such Purchasers on at the First Closing Date, or if the conditions specified in pursuant to Section 4.1 have not been fulfilled to Prudential’s or each Purchaser’s satisfaction, Prudential or such Purchaser shall, at its election, be relieved of all further obligations under this Agreement without thereby waiving any rights Prudential or each such Purchaser may have by reason of such failure or such nonfulfillment‎4.