TO LENDER SUBSTANTIALLY THE RIGHTS THAT GE CAPITAL HAD TO THE ASSETS OF BORROWER
UNDER THE GE CAPITAL
19
FACILITY (THE "A/R AND ASSET SECURITY INTERESTS") OTHER THAN WITH RESPECT TO
THOSE ASSETS IN WHICH BORROWER GRANTED GEMINO A LIEN AND SECURITY INTEREST IN
CONNECTION WITH THE GEMINO CAPITAL FACILITY.
6.
SURVIVAL OF REPRESENTATIONS, WARRANTIES
AND AGREEMENTS, ETC.
Except as expressly provided to the contrary, all covenants and agreements
contained in this Agreement shall survive the Closing and shall remain in full
force and effect as of the date when made.
The representations and warranties
hereunder shall survive so long as any Indebtedness hereunder, or under any
Note, or any obligations under any Warrant remain outstanding.
7.
EVENTS OF DEFAULT; REMEDIES.
7.1.
EVENTS OF DEFAULT.
THE OCCURRENCE OF ANY ONE OR MORE OF THE FOLLOWING
EVENTS SHALL CONSTITUTE AN EVENT OF DEFAULT HEREUNDER ("EVENT OF DEFAULT"):
(A)
IF BORROWER SHALL FAIL TO PAY (I) AS AND WHEN DUE, ANY PAYMENT OF
PRINCIPAL UNDER THIS AGREEMENT OR THE NOTE, AND (II) ANY PAYMENT OF INTEREST OR
EXPENSES PAYABLE UNDER THIS AGREEMENT OR THE NOTE AND SUCH FAILURE TO PAY IS NOT
CURED WITHIN TEN DAYS FOLLOWING THE DATE SUCH PAYMENT IS DUE;
(B)
IF, PURSUANT TO OR WITHIN THE MEANING OF THE UNITED STATES
BANKRUPTCY CODE OR ANY OTHER FEDERAL, STATE, OR APPLICABLE FOREIGN LAW RELATING
TO INSOLVENCY OR RELIEF OF DEBTORS (COLLECTIVELY, A "BANKRUPTCY LAW"), BORROWER
SHALL (I) COMMENCE A VOLUNTARY CASE OR PROCEEDING; (II) CONSENT TO THE ENTRY OF
AN ORDER FOR RELIEF AGAINST IT IN AN INVOLUNTARY CASE; (III) CONSENT TO THE
APPOINTMENT OF A TRUSTEE, RECEIVER, ASSIGNEE, LIQUIDATOR OR SIMILAR OFFICIAL;
(IV) MAKE AN ASSIGNMENT FOR THE BENEFIT OF ITS CREDITORS; OR (V) ADMIT IN
WRITING ITS INABILITY TO PAY ITS DEBTS AS THEY BECOME DUE;
(C)
IF (I) A CASE IS COMMENCED AGAINST BORROWER PURSUANT TO ANY
BANKRUPTCY LAW, OR (II) A COURT OF COMPETENT JURISDICTION ENTERS AN ORDER OR
DECREE UNDER ANY BANKRUPTCY LAW THAT (A) IS FOR RELIEF AGAINST BORROWER IN AN
INVOLUNTARY CASE, (B) APPOINTS A TRUSTEE, RECEIVER, ASSIGNEE, LIQUIDATOR OR
SIMILAR OFFICIAL FOR BORROWER OR SUBSTANTIALLY ALL OF THE PROPERTIES OF ANY OF
BORROWER, OR (C) ORDERS THE LIQUIDATION OF BORROWER, AND, IN EACH CASE, THE
CASE, ORDER OR DECREE IS NOT DISMISSED WITHIN 60 DAYS;
(D)
IF BORROWER SHALL FAIL TO COMPLY WITH OR PERFORM (I) THE COVENANTS
SET FORTH IN SECTION 5.1 HEREOF; OR (II) ANY PROVISION OF THE WARRANTS;
(E)
IF BORROWER SHALL FAIL TO COMPLY WITH OR PERFORM ANY OTHER
COVENANT OR OTHER AGREEMENT SET FORTH HEREIN, OR IN ANY NOTE, WHICH FAILURE IS
NOT CURED WITHIN 30 DAYS AFTER WRITTEN NOTICE FROM LENDER;
(F)
IF ANY REPRESENTATION OR WARRANTY BY BORROWER HEREIN CONTAINED IS
FALSE OR MISLEADING IN ANY MATERIAL RESPECT WHEN MADE;
(G)
IF ANY EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING WITH
RESPECT TO THE COMERICA AGREEMENT OR THE GEMINO CAPITAL FACILITY (OTHER THAN
EVENTS OF DEFAULT DESCRIBED ON SCHEDULE 4.8(B), INCLUDING