Common use of Certain Bankruptcy Events Clause in Contracts

Certain Bankruptcy Events. Borrowers shall fail to comply with any of the provisions of the Financing Orders in any material respect; a trustee shall be appointed in any Chapter 11 Case; an examiner shall be appointed in any Chapter 11 Case with enlarged powers (powers beyond those set forth in Section 1106(a)(3) and (4) of the Bankruptcy Code) under Section 1106(b) of the Bankruptcy Code; any Chapter 11 Case shall be dismissed or converted to a case under Chapter 7; any Borrower shall obtain Bankruptcy Court approval of a disclosure statement for a Reorganization Plan other than an Acceptable Plan, or a Confirmation Order shall be entered with respect to a Reorganization Plan proposed by a Person other than Borrowers if such Reorganization Plan is not an Acceptable Plan; any Borrower shall, without Lender's consent, file any motion to sell all or a substantial part of the Collateral on terms that do not provide for the termination of the DIP Facility and the Full Payment of the Obligations (including the Early Termination Fee) concurrently with the closing of such transaction; the Final Financing Order is not entered by January 28, 2005; any Borrower shall, without Lender's consent, file any motion to alter, amend, vacate, supplement, modify, or reconsider, in any respect, either of the Financing Orders or, without Lender's prior written consent, either of the Financing Orders is amended, vacated, stayed, reversed or otherwise modified; the Bankruptcy Court shall enter an order granting to any Person (other than Lender) relief from the automatic stay to foreclose upon a Lien with respect to any Property of any Borrower that has an aggregate book value in excess of $50,000 or to terminate or otherwise exercise remedies under any material agreement, document or instrument which is entered into after the Closing Date, whether or not it relates to any Debt; any Borrower shall file a motion or other request with the Bankruptcy Court seeking authority to use any cash proceeds of the Collateral or to obtain any financing under Section 364(c) or Section 364(d) of the Bankruptcy Code or otherwise secured by a Lien upon any Collateral (in each case 1. without Lender's prior written consent and 1. if such motion fails to contemplate payment in full of the Obligations (including the Early Termination Fee) and termination of the DIP Facility); any other security interest, Lien, claim or encumbrance shall be granted which is PARI PASSU with or senior to the claims of Lender in Borrowers' Chapter 11 Case, excepted as contemplated by the Financing Orders; the grant of any super priority administrative expense claim or any lien which is PARI PASSU with or senior to those of Lender; any payment of pre-petition debt except as explicitly contemplated by the Financing Orders with respect to the Pre-Petition Loan Agreements; the sale of all or substantially all of the assets of any of Borrowers to any Person; there shall be any challenge to the extent, validity, priority or unavoidability of any liens of Lender securing the DIP Facility or any of the obligations thereunder; an Acceptable Plan, shall not have been filed with the Bankruptcy Court by May 31, 2005; an order shall be entered reversing, amending, supplementing, staying, vacating or otherwise modifying any Financing Order; there shall occur a post-petition event which causes or would cause a material adverse change or a material adverse effect on the ability of any Borrower to perform its obligations under the DIP Facility or to continue the operation of its business; without Lender's consent, any Borrower shall discontinue or suspend all or any material part of its business operations or commence an orderly wind-down or liquidation of any material part of the Collateral; any application shall be filed by any Borrower for the approval of any other super-priority claim in the Chapter 11 Cases which is PARI PASSU with or senior to the claims of Lender against Borrowers or there shall arise such claim, except for such application which provides that as a condition precedent to such action the Full Payment of the Obligations hereunder and the termination of the Commitment hereunder; an order shall be entered which provides relief from the automatic stay otherwise imposed pursuant to Section 362 of the Bankruptcy Code, which order permits any creditor other than Lender to realize upon or to exercise any right or remedy with respect to the Collateral (other than any such right or remedy exercised in respect of those Liens listed on Schedule 8.1(d) hereof which do not relate to the Pre-Petition Loan Agreements) or to terminate any license, franchise, lease or similar arrangement, where such relief could have a Material Adverse Effect; or any order of adequate protection is provided by the Bankruptcy Court in the Chapter 11 Case in favor of any of Borrowers' pre-petition creditors without the consent of Lender or any such adequate protection is modified or expanded without the consent of Lender (except for adequate protection paid to equipment owners, lienholders and lessors pursuant to an order of the Bankruptcy Court after notice to Lender not to exceed amounts set forth in the Budget under "Lease Payments" PLUS $75,000 in the aggregate).

Certain Bankruptcy Events. Borrowers Borrower shall fail to comply with any of the provisions of the Financing Orders in any material respect; a trustee shall be appointed in any the Chapter 11 Case; an examiner shall be appointed in any the Chapter 11 Case with enlarged powers (powers beyond those set forth in Section 1106(a)(3) and (4) of the Bankruptcy Code) under Section 1106(b) of the Bankruptcy Code; any the Chapter 11 Case shall be dismissed or converted to a case under Chapter 7; Borrower or any Borrower Affiliate shall obtain Bankruptcy Court approval of a disclosure statement for a Reorganization Plan other than an Acceptable Plan, Plan or a Confirmation Order shall be entered with respect to a Reorganization Plan proposed by a Person other than Borrowers Borrower if such Reorganization Plan is not an Acceptable Plan; any there shall be filed by Borrower shall, without Lender's consent, file any motion to sell all or a substantial part of the Collateral on terms that do are not provide for acceptable to Lenders in their sole discretion; any substantial part of Borrower's assets, other than the termination of the DIP Facility and the Full Payment of the Obligations (including the Early Termination Fee) concurrently with the closing Collateral, shall be sold by Borrower and, as a consequence of such transaction; the Final Financing Order sale, Borrower is not entered able to continue its business operations in substantially the same manner as was conducted by January 28, 2005it prior to such sale; any Borrower shall, without Lender's consent, shall file any motion to alter, amend, vacate, supplement, modify, or reconsider, in any respect, either of the Financing Orders or, without each Lender's prior written consent, either of the Financing Orders is amended, vacated, stayed, reversed or otherwise modified; the Bankruptcy Court shall enter an order granting to any Person (other than LenderAgent, any Lender or any lessor under an equipment lease) relief from the automatic stay to foreclose upon a Lien with respect to any Property of any Borrower that has an aggregate book value in excess of $50,000 250,000; an order shall be entered for the substantive consolidation of the Estate of Borrower with any other Person; Borrower shall not have sufficient Availability to pay on any date or within two Business Days of such date, or shall otherwise fail to terminate pay as and when due and payable, all administrative costs or otherwise exercise remedies under any material agreement, document or instrument which is entered into after expenses incurred by it in the Closing Date, whether or not it relates to any DebtChapter 11 Case that are due and payable on such date; any Borrower shall file a motion or other request with the Bankruptcy Court seeking authority to use any cash proceeds of the Collateral or to obtain any financing under Section 364(c) or Section 364(d) of the Bankruptcy Code or otherwise secured by a priming Lien upon any Collateral (in each case 1. (i) without LenderAgent's or Lenders' prior written consent and 1. or (ii) if such motion fails to contemplate payment in full of the Obligations (including the Early Termination Fee) Obligations), or Lien of equal priority with Agent's Liens, upon any Collateral, in each case without Agent's and termination of the DIP Facility)Lenders' prior written consent; any other security interest, Lien, claim or encumbrance an application shall be granted which filed by Borrower for the approval of any superpriority claim in the Chapter 11 Case that is PARI PASSU with or senior to the claims Obligations or any of Lender in Borrowers' Chapter 11 Casethe Pre-Petition Debt or there shall arise or be granted any such PARI PASSU or senior superpriority claim; Borrower shall challenge the validity, excepted as contemplated by the Financing Orders; the grant perfection or priority of any super priority administrative expense claim Liens of Agent securing the Pre-Petition Debt or the validity or enforceability of any lien which is PARI PASSU with or senior to those of Lender; any payment of pre-petition debt except as explicitly contemplated by the Financing Orders with respect to the Pre-Petition Loan AgreementsDocuments; or, without Agent's and the sale of all or substantially all of the assets of any of Borrowers to any Person; there shall be any challenge to the extent, validity, priority or unavoidability of any liens of Lender securing the DIP Facility or any of the obligations thereunder; an Acceptable Plan, shall not have been filed with the Bankruptcy Court by May 31, 2005; an order shall be entered reversing, amending, supplementing, staying, vacating or otherwise modifying any Financing Order; there shall occur a post-petition event which causes or would cause a material adverse change or a material adverse effect on the ability of any Borrower to perform its obligations under the DIP Facility or to continue the operation of its business; without Required Lender's consent, any Borrower shall discontinue or suspend all or any material part of its business operations or commence an orderly wind-down or liquidation of any material part of the Collateral; any application shall be filed by any Borrower for the approval of any other super-priority claim in the Chapter 11 Cases which is PARI PASSU with or senior to the claims of Lender against Borrowers or there shall arise such claim, except for such application which provides that as a condition precedent to such action the Full Payment of the Obligations hereunder and the termination of the Commitment hereunder; an order shall be entered which provides relief from the automatic stay otherwise imposed pursuant to Section 362 of the Bankruptcy Code, which order permits any creditor other than Lender to realize upon or to exercise any right or remedy with respect to the Collateral (other than any such right or remedy exercised in respect of those Liens listed on Schedule 8.1(d) hereof which do not relate to the Pre-Petition Loan Agreements) or to terminate any license, franchise, lease or similar arrangement, where such relief could have a Material Adverse Effect; or any order of adequate protection is provided by the Bankruptcy Court in the Chapter 11 Case in favor of any of Borrowers' pre-petition creditors without the consent of Lender or any such adequate protection is modified or expanded without the consent of Lender (except for adequate protection paid to equipment owners, lienholders and lessors pursuant to an order of the Bankruptcy Court after notice to Lender not to exceed amounts set forth in the Budget under "Lease Payments" PLUS $75,000 in the aggregate).

Certain Bankruptcy Events. Borrowers Any Borrower shall fail to comply with any of the provisions of the Financing Orders in any material respect; a trustee shall be appointed in any Chapter 11 Case; an examiner shall be appointed in any Chapter 11 Case with enlarged powers (powers beyond those set forth in Section 1106(a)(3) and (4) of the Bankruptcy Code) under Section 1106(b) of the Bankruptcy Code; any Chapter 11 Case shall be dismissed or converted to a case under Chapter 7; any Borrower Borrowers shall obtain Bankruptcy Court approval of a disclosure statement for a Reorganization Plan other than an Acceptable Plan, Plan or a Confirmation Order shall be entered with respect to a Reorganization Plan proposed by a Person other than Borrowers if such Reorganization Plan is not an Acceptable Plan; any Borrower shall, without Lender's consent, file there shall be filed by Borrowers any motion to sell all or a substantial part of the Collateral (excluding any Acquisition Transaction as defined in the Acquisition Agreement) on terms that do are not provide for the termination of the DIP Facility and the Full Payment of the Obligations (including the Early Termination Fee) concurrently with the closing of such transactionacceptable to Lender in its sole discretion; the Final Financing Order is not entered by January 28October 22, 20052002; any Borrower shall, without Lender's consent, shall file any motion to alter, amend, vacate, supplement, modify, or reconsider, in any respect, either of the Financing Orders or, without Lender's prior written consent, either of the Financing Orders is amended, vacated, stayed, reversed or otherwise modified; the Bankruptcy Court shall enter an order granting to any Person (other than Lender) relief from the automatic stay to foreclose upon a Lien with respect to any Property of any Borrower that has an aggregate book value in excess of $50,000 250,000 or to terminate or otherwise exercise remedies under any material agreement, document or instrument which is entered into after the Closing Petition Date, whether or not it relates to any Debt; any Borrower shall file a motion or other request with the Bankruptcy Court seeking authority to use any cash proceeds of the Collateral or to obtain any financing under Section 364(c) or Section 364(d) of the Bankruptcy Code or otherwise secured by a Lien upon any Collateral (in each case 1. (i) without Lender's prior written consent and 1. or (ii) if such motion fails to contemplate payment in full of the Obligations (including the Early Termination Fee) and termination of the DIP FacilityObligations); any other security interestor, Lien, claim or encumbrance shall be granted which is PARI PASSU with or senior to the claims of Lender in Borrowers' Chapter 11 Case, excepted as contemplated by the Financing Orders; the grant of any super priority administrative expense claim or any lien which is PARI PASSU with or senior to those of Lender; any payment of pre-petition debt except as explicitly contemplated by the Financing Orders with respect to the Pre-Petition Loan Agreements; the sale of all or substantially all of the assets of any of Borrowers to any Person; there shall be any challenge to the extent, validity, priority or unavoidability of any liens of Lender securing the DIP Facility or any of the obligations thereunder; an Acceptable Plan, shall not have been filed with the Bankruptcy Court by May 31, 2005; an order shall be entered reversing, amending, supplementing, staying, vacating or otherwise modifying any Financing Order; there shall occur a post-petition event which causes or would cause a material adverse change or a material adverse effect on the ability of any Borrower to perform its obligations under the DIP Facility or to continue the operation of its business; without Lender's consent, any Borrower Obligor shall discontinue or suspend all or any material part of its business operations or commence an orderly wind-down or liquidation of any material part of the Collateral; any application shall be filed by any Borrower for the approval of any other super-priority claim in the Chapter 11 Cases which is PARI PASSU with or senior to the claims of Lender against Borrowers or there shall arise such claim, except for such application which provides that as a condition precedent to such action the Full Payment of the Obligations hereunder and the termination of the Commitment hereunder; an order shall be entered which provides relief from the automatic stay otherwise imposed pursuant to Section 362 of the Bankruptcy Code, which order permits any creditor other than Lender to realize upon or to exercise any right or remedy with respect to the Collateral (other than any such right or remedy exercised in respect of those Liens listed on Schedule 8.1(d) hereof which do not relate to the Pre-Petition Loan Agreements) or to terminate any license, franchise, lease or similar arrangement, where such relief could have a Material Adverse Effect; or any order of adequate protection is provided by the Bankruptcy Court in the Chapter 11 Case in favor of any of Borrowers' pre-petition creditors without the consent of Lender or any such adequate protection is modified or expanded without the consent of Lender (except for adequate protection paid to equipment owners, lienholders and lessors pursuant to an order of the Bankruptcy Court after notice to Lender not to exceed amounts set forth in the Budget under "Lease Payments" PLUS $75,000 in the aggregate).

Certain Bankruptcy Events. Borrowers Borrower shall fail to comply ------------------------- with any of the provisions of the DIP Orders; the Final Financing Orders in any material respectOrder is not entered by the Court on or before July 31, 1999; Term Lender has not funded at least $15,350,000 of the term loans (less up to $1,500,000 for reserves by Term Lender against pre-petition Liens affecting collateral security against primary security for the Debt under the Term Lender Documents) under the Term Lender Documents on or before the sooner to occur of July 31, 1999, or the fifth Business Day after entry of the Final Financing Order; a trustee shall be appointed in any the Chapter 11 Case; an examiner shall be appointed in any the Chapter 11 Case with enlarged powers (powers beyond those set forth in Section 1106(a)(3) and (4) of the Bankruptcy Code) under Section 1106(b) of the Bankruptcy Code; any the Chapter 11 Case shall be dismissed or converted to a case under Chapter 7; any Borrower shall obtain Bankruptcy seek confirmation by the Court approval of a disclosure statement for a any Reorganization Plan other than an Acceptable Plan, Plan or a Confirmation Order shall be entered with respect to a Reorganization Plan proposed by a Person other than Borrowers Borrower if such Reorganization Plan is not an Acceptable Plan; any there shall be filed by Borrower shall, without Lender's consent, file any motion to sell all or a substantial part of the Collateral on terms that do are not provide for acceptable to Lenders in their sole discretion; any substantial part of Borrower's assets, other than the termination of the DIP Facility and the Full Payment of the Obligations (including the Early Termination Fee) concurrently with the closing Collateral, shall be sold by Borrower and, as a consequence of such transaction; the Final Financing Order sale, Borrower is not entered able to continue its business operations in substantially the same manner as was conducted by January 28, 2005it prior to such sale; any Borrower shall, without Lender's consent, shall file any motion to alter, amend, vacate, supplement, modify, or reconsider, in any respect, either of the Financing DIP Orders or, without each Lender's prior written consent, either of the Financing DIP Orders is amended, vacated, stayed, reversed or otherwise modified; the Bankruptcy Court shall enter an order granting to any Person (other than Lender) Agent or any Lender relief from the automatic stay to foreclose upon a Lien with respect to any Property of any Borrower that has an aggregate book value in excess of $50,000 100,000 or any of the Collateral (without regard to terminate its value); an order shall be entered for the substantive consolidation of the Estate of Borrower with any other Person; Borrower shall not have sufficient Availability on any date to pay administrative costs or otherwise exercise remedies under any material agreement, document or instrument which is entered into after expenses incurred by it in the Closing Date, whether or not it relates to any DebtChapter 11 Case as and when such expenses are due and payable; any Borrower shall file a motion or other request with the Bankruptcy Court seeking authority to use any cash proceeds of the Collateral or to obtain any financing under Section 364(c) or Section 364(d) of the Bankruptcy Code or otherwise secured by a priming Lien, or Lien of equal priority with Agent's Liens, upon any Collateral (Collateral, in each case 1. without LenderAgent's and Lenders' prior written consent and 1. if such motion fails to contemplate payment in full of consent; or Borrower (or any Committee) shall challenge the Obligations (including the Early Termination Fee) and termination of the DIP Facility); any other security interestvalidity, Lien, claim perfection or encumbrance shall be granted which is PARI PASSU with or senior to the claims of Lender in Borrowers' Chapter 11 Case, excepted as contemplated by the Financing Orders; the grant priority of any super priority administrative expense claim Liens of Agent securing the Pre-Petition Debt or the validity or enforceability of any lien which is PARI PASSU with or senior to those of Lender; any payment of pre-petition debt except as explicitly contemplated by the Financing Orders with respect to the Pre-Petition Loan Agreements; the sale of all or substantially all of the assets of any of Borrowers to any Person; there shall be any challenge to the extent, validity, priority or unavoidability of any liens of Lender securing the DIP Facility or any of the obligations thereunder; an Acceptable Plan, shall not have been filed with the Bankruptcy Court by May 31, 2005; an order shall be entered reversing, amending, supplementing, staying, vacating or otherwise modifying any Financing Order; there shall occur a post-petition event which causes or would cause a material adverse change or a material adverse effect on the ability of any Borrower to perform its obligations under the DIP Facility or to continue the operation of its business; without Lender's consent, any Borrower shall discontinue or suspend all or any material part of its business operations or commence an orderly wind-down or liquidation of any material part of the Collateral; any application shall be filed by any Borrower for the approval of any other super-priority claim in the Chapter 11 Cases which is PARI PASSU with or senior to the claims of Lender against Borrowers or there shall arise such claim, except for such application which provides that as a condition precedent to such action the Full Payment of the Obligations hereunder and the termination of the Commitment hereunder; an order shall be entered which provides relief from the automatic stay otherwise imposed pursuant to Section 362 of the Bankruptcy Code, which order permits any creditor other than Lender to realize upon or to exercise any right or remedy with respect to the Collateral (other than any such right or remedy exercised in respect of those Liens listed on Schedule 8.1(d) hereof which do not relate to the Pre-Petition Loan Agreements) or to terminate any license, franchise, lease or similar arrangement, where such relief could have a Material Adverse Effect; or any order of adequate protection is provided by the Bankruptcy Court in the Chapter 11 Case in favor of any of Borrowers' pre-petition creditors without the consent of Lender or any such adequate protection is modified or expanded without the consent of Lender (except for adequate protection paid to equipment owners, lienholders and lessors pursuant to an order of the Bankruptcy Court after notice to Lender not to exceed amounts set forth in the Budget under "Lease Payments" PLUS $75,000 in the aggregate)Documents.

Certain Bankruptcy Events. Borrowers Any Borrower shall fail to comply with any of the provisions of the Financing Orders in any material respect; a trustee shall be appointed in any Chapter 11 Case; an examiner shall be appointed in any Chapter 11 Case with enlarged powers (powers beyond those set forth in Section 1106(a)(3) and (4) of the Bankruptcy Code) under Section 1106(b) of the Bankruptcy Code; any Chapter 11 Case shall be dismissed or converted to a case under Chapter 7; any Borrower Borrowers shall obtain Bankruptcy Court approval of a disclosure statement for a Reorganization Plan other than an Acceptable Plan, Plan or a Confirmation Order shall be entered with respect to a Reorganization Plan proposed by a Person other than Borrowers if such Reorganization Plan is not an Acceptable Plan; any Borrower shall, without Lender's consent, file there shall be filed by Borrowers any motion to sell all or a substantial part of the Collateral (excluding any Acquisition Transaction as defined in the Acquisition Agreement) on terms that do are not provide for the termination of the DIP Facility and the Full Payment of the Obligations (including the Early Termination Fee) concurrently with the closing of such transactionacceptable to Lender in its sole discretion; the Final Financing Order is not entered by January 28October 22, 20052002; any Borrower shall, without Lender's consent, shall file any motion to alter, amend, vacate, supplement, modify, or reconsider, in any respect, either of the Financing Orders or, without Lender's ’s prior written consent, either of the Financing Orders is amended, vacated, stayed, reversed or otherwise modified; the Bankruptcy Court shall enter an order granting to any Person (other than Lender) relief from the automatic stay to foreclose upon a Lien with respect to any Property of any Borrower that has an aggregate book value in excess of $50,000 250,000 or to terminate or otherwise exercise remedies under any material agreement, document or instrument which is entered into after the Closing Petition Date, whether or not it relates to any Debt; any Borrower shall file a motion or other request with the Bankruptcy Court seeking authority to use any cash proceeds of the Collateral or to obtain any financing under Section 364(c) or Section 364(d) of the Bankruptcy Code or otherwise secured by a Lien upon any Collateral (in each case 1. (i) without Lender's ’s prior written consent and 1. or (ii) if such motion fails to contemplate payment in full of the Obligations (including the Early Termination Fee) and termination of the DIP FacilityObligations); any other security interestor, Lien, claim or encumbrance shall be granted which is PARI PASSU with or senior to the claims of Lender in Borrowers' Chapter 11 Case, excepted as contemplated by the Financing Orders; the grant of any super priority administrative expense claim or any lien which is PARI PASSU with or senior to those of Lender; any payment of pre-petition debt except as explicitly contemplated by the Financing Orders with respect to the Pre-Petition Loan Agreements; the sale of all or substantially all of the assets of any of Borrowers to any Person; there shall be any challenge to the extent, validity, priority or unavoidability of any liens of Lender securing the DIP Facility or any of the obligations thereunder; an Acceptable Plan, shall not have been filed with the Bankruptcy Court by May 31, 2005; an order shall be entered reversing, amending, supplementing, staying, vacating or otherwise modifying any Financing Order; there shall occur a post-petition event which causes or would cause a material adverse change or a material adverse effect on the ability of any Borrower to perform its obligations under the DIP Facility or to continue the operation of its business; without Lender's ’s consent, any Borrower Obligor shall discontinue or suspend all or any material part of its business operations or commence an orderly wind-down or liquidation of any material part of the Collateral; any application shall be filed by any Borrower for the approval of any other super-priority claim in the Chapter 11 Cases which is PARI PASSU with or senior to the claims of Lender against Borrowers or there shall arise such claim, except for such application which provides that as a condition precedent to such action the Full Payment of the Obligations hereunder and the termination of the Commitment hereunder; an order shall be entered which provides relief from the automatic stay otherwise imposed pursuant to Section 362 of the Bankruptcy Code, which order permits any creditor other than Lender to realize upon or to exercise any right or remedy with respect to the Collateral (other than any such right or remedy exercised in respect of those Liens listed on Schedule 8.1(d) hereof which do not relate to the Pre-Petition Loan Agreements) or to terminate any license, franchise, lease or similar arrangement, where such relief could have a Material Adverse Effect; or any order of adequate protection is provided by the Bankruptcy Court in the Chapter 11 Case in favor of any of Borrowers' pre-petition creditors without the consent of Lender or any such adequate protection is modified or expanded without the consent of Lender (except for adequate protection paid to equipment owners, lienholders and lessors pursuant to an order of the Bankruptcy Court after notice to Lender not to exceed amounts set forth in the Budget under "Lease Payments" PLUS $75,000 in the aggregate).

Certain Bankruptcy Events. Borrowers Borrower shall fail to comply with any of the provisions of the Financing Orders in any material respect; a trustee shall be appointed in any Chapter 11 Case; an examiner shall be appointed in any Chapter 11 Case with enlarged powers (powers beyond those set forth in Section 1106(a)(3) and (4) of the Bankruptcy Code) under Section 1106(b) of the Bankruptcy Code; any Chapter 11 Case shall be dismissed or converted to a case under Chapter 7; any Borrower shall obtain Nevada Bankruptcy Court approval of a disclosure statement for a Reorganization Plan other than an Acceptable Plan, Plan or a Confirmation Order shall be entered with respect to a Reorganization Plan proposed by a Person other than Borrowers Borrower if such Reorganization Plan is not an Acceptable Plan; any there shall be filed by Borrower shall, without Lender's consent, file any motion to sell all or a substantial part of the Collateral on terms that do are not provide for deemed by the termination of the DIP Facility Professional Person serving as Borrower’s financial advisor to be fair and the Full Payment of the Obligations (including the Early Termination Fee) concurrently with the closing of such transactionreasonable; the Final Financing Order is not entered by January 28, 2005; any Borrower shall, without Lender's consent, shall file any motion to alter, amend, vacate, supplement, modify, or reconsider, in any respect, either of the Financing Orders or, without Lender's ’s prior written consent, either of the Financing Orders is amended, vacated, stayed, reversed or otherwise modified; the Nevada Bankruptcy Court shall enter an order granting to any Person (other than Lender) relief from the automatic stay to foreclose upon a Lien with respect to any Property of any Borrower that has an aggregate book value in excess of $50,000 75,000 or to terminate or otherwise exercise remedies under any material agreement, document or instrument which is entered into after the Closing Petition Date, whether or not it relates to any Debt; any Borrower shall file a motion or other request with the Nevada Bankruptcy Court seeking authority to use any cash proceeds of the Collateral or to obtain any financing under Section 364(c) or Section 364(d) of the Bankruptcy Code or otherwise secured by a Lien upon any Collateral (in each case 1. (i) without Lender's ’s prior written consent and 1. or (ii) if such motion fails to contemplate payment in full of the Obligations (including the Early Termination Fee) and termination of the DIP Facility); any other security interest, Lien, claim or encumbrance shall be granted which is PARI PASSU with or senior to the claims of Lender in Borrowers' Chapter 11 Case, excepted as contemplated by the Financing Orders; the grant of any super priority administrative expense claim or any lien which is PARI PASSU with or senior to those of Lender; any payment of pre-petition debt except as explicitly contemplated by the Financing Orders with respect to the Pre-Petition Loan Agreements; the sale of all or substantially all of the assets of any of Borrowers to any Person; there shall be any challenge to the extent, validity, priority or unavoidability of any liens of Lender securing the DIP Facility or any of the obligations thereunder; an Acceptable Plan, shall not have been filed with the Bankruptcy Court by May 31, 2005; an order shall be entered reversing, amending, supplementing, staying, vacating or otherwise modifying any Financing Order; there shall occur a post-petition event which causes or would cause a material adverse change or a material adverse effect on the ability of any Borrower to perform its obligations under the DIP Facility or to continue the operation of its business; without Lender's consent, any Borrower shall discontinue or suspend all or any material part of its business operations or commence an orderly wind-down or liquidation of any material part of the Collateral; any application shall be filed by any Borrower for the approval of any other super-priority claim in the Chapter 11 Cases which is PARI PASSU with or senior to the claims of Lender against Borrowers or there shall arise such claim, except for such application which provides that as a condition precedent to such action the Full Payment of the Obligations hereunder and the termination of the Commitment hereunder; an order shall be entered which provides relief from the automatic stay otherwise imposed pursuant to Section 362 of the Bankruptcy Code, which order permits any creditor other than Lender to realize upon or to exercise any right or remedy with respect to the Collateral (other than any such right or remedy exercised in respect of those Liens listed on Schedule 8.1(d) hereof which do not relate to the Pre-Petition Loan Agreements) or to terminate any license, franchise, lease or similar arrangement, where such relief could have a Material Adverse Effect; or any order of adequate protection is provided by the Bankruptcy Court in the Chapter 11 Case in favor of any of Borrowers' pre-petition creditors without the consent of Lender or any such adequate protection is modified or expanded without the consent of Lender (except for adequate protection paid to equipment owners, lienholders and lessors pursuant to an order of the Bankruptcy Court after notice to Lender not to exceed amounts set forth in the Budget under "Lease Payments" PLUS $75,000 in the aggregateObligations).

Certain Bankruptcy Events. Borrowers Either Borrower shall fail to comply with any of the provisions of the Financing Orders in any material respectOrders; a trustee shall be appointed in any Chapter 11 Case; an examiner shall be appointed in any Chapter 11 Case with enlarged powers (powers beyond those set forth in Section 1106(a)(3) and (4) of the Bankruptcy Code) under Section 1106(b) of the Bankruptcy Code; any Chapter 11 Case shall be dismissed or converted to a case under Chapter 77 or a motion for any such dismissal or conversion shall be filed by a Borrower or any Affiliate; a Borrower or any Borrower Affiliate shall obtain Bankruptcy Court approval of a disclosure statement for a Reorganization Plan other than an Acceptable Plan, Plan or a Confirmation Order shall be entered with respect to a Reorganization Plan proposed by a Person other than Borrowers (regardless of the identity of the proponent of such Reorganization Plan) if such Reorganization Plan is not an Acceptable Plan; any there shall be filed by a Borrower shall, without Lender's consent, file any motion to sell all or a substantial part of the Collateral (other than a sale by CMI of its Equipment in accordance with SECTION 7.2.4) on terms that do are not provide for the termination of the DIP Facility and the Full Payment of the Obligations (including the Early Termination Fee) concurrently with the closing of such transactionacceptable to Lender in its sole discretion; the Final Financing Order is not entered by January 28, 2005; any a Borrower shall, without Lender's consent, shall file any motion to alter, amend, vacate, supplement, modify, or reconsider, in any respect, either of the Financing Orders or, without Lender's prior written consent, either of the Financing Orders is amended, vacated, stayed, reversed or otherwise modified; the Bankruptcy Court shall enter an order granting to any Person (other than Lender) Lender relief from the automatic stay to foreclose upon a Lien with respect to any Property of any Borrower Borrowers that has an aggregate book value in excess of $50,000 250,000 or to terminate or otherwise exercise remedies under any material agreement, document or instrument which is entered into after the Closing Date, whether or not it relates with respect to any Debtof the Collateral (without regard to its value); an order shall be entered for the substantive consolidation of the Estate of a Borrower with any other Person; Borrowers shall not have sufficient Availability on any date to pay, or shall otherwise fail to pay as and when due and payable, all costs and expenses of administration that are incurred by them in the Chapter 11 Cases that are due and payable on such date; a Borrower shall file a motion or other request with the Bankruptcy Court seeking authority to use any cash proceeds of the Collateral or to obtain any financing under Section 364(c) or Section 364(d) of the Bankruptcy Code or otherwise secured by a priming Lien, or Lien of equal priority with Lender's Liens, upon any Collateral (Collateral, in each case 1. without Lender's prior written consent and 1. if such motion fails to contemplate payment in full of the Obligations (including the Early Termination Fee) and termination of the DIP Facility)consent; any other security interest, Lien, claim or encumbrance an application shall be granted which filed by a Borrower for the approval of any superpriority claim in any Chapter 11 Case that is PARI PASSU pari passu with or senior to the claims Obligations or there shall arise or be granted any such pari passu or superpriority claim; a Borrower shall challenge the validity, perfection or priority of any Liens of Lender in Borrowers' Chapter 11 Case, excepted as contemplated by securing the Financing Orders; Pre-Petition Debt or the grant validity or enforceability of any super priority administrative expense claim or any lien which is PARI PASSU with or senior to those of Lender; any payment of pre-petition debt except as explicitly contemplated by the Financing Orders with respect to the Pre-Petition Loan AgreementsDocuments; the sale of all or substantially all of the assets of any of Borrowers to any Person; there shall be any challenge to the extentor, validity, priority or unavoidability of any liens of Lender securing the DIP Facility or any of the obligations thereunder; an Acceptable Plan, shall not have been filed with the Bankruptcy Court by May 31, 2005; an order shall be entered reversing, amending, supplementing, staying, vacating or otherwise modifying any Financing Order; there shall occur a post-petition event which causes or would cause a material adverse change or a material adverse effect on the ability of any Borrower to perform its obligations under the DIP Facility or to continue the operation of its business; without Lender's consent, any a Borrower shall discontinue or suspend all or any material part of its business operations as conducted by such Borrower on the Petition Date or EFA shall commence an orderly wind-down or liquidation of any material part of the CollateralCollateral owned or used by EFA; any application shall be filed by any Borrower for the approval of any other super-priority claim in the Chapter 11 Cases which is PARI PASSU with or senior to the claims of Lender against Borrowers or there shall arise such claim, except for such application which provides that as a condition precedent to such action the Full Payment of the Obligations hereunder and the termination of the Commitment hereunder; an order shall be entered which provides relief from the automatic stay otherwise imposed pursuant to Section 362 of the Bankruptcy Code, which order permits any creditor other than Lender to realize upon or to exercise any right or remedy Borrowers' disclosure statement with respect to the Collateral (other than any such right or remedy exercised in respect of those Liens listed on Schedule 8.1(d) hereof which do an Acceptable Plan shall not relate to the Pre-Petition Loan Agreements) or to terminate any license, franchise, lease or similar arrangement, where such relief could have a Material Adverse Effect; or any order of adequate protection is provided been approved by the Bankruptcy Court in the Chapter 11 Case in favor of any of Borrowers' pre-petition creditors without the consent of Lender or any such adequate protection is modified or expanded without the consent of Lender (except for adequate protection paid to equipment owners, lienholders and lessors pursuant to an order of the Bankruptcy Court after notice to Lender on or before January 31, 2002; or an Acceptable Plan shall not to exceed amounts set forth in have been confirmed by order of the Budget under "Lease Payments" PLUS $75,000 in the aggregate)Court on or before March 30, 2002.

Certain Bankruptcy Events. Borrowers Borrower shall fail to comply with any of the provisions of the Financing Orders in any material respectOrders; a trustee shall be appointed in any the Chapter 11 Case; an examiner shall be appointed in any the Chapter 11 Case with enlarged powers (powers beyond those set forth in Section 1106(a)(3) and (4) of the Bankruptcy Code) under Section 1106(b) of the Bankruptcy Code; any the Chapter 11 Case shall be dismissed or converted to a case under Chapter 77 or a motion for any such dismissal or conversion shall be filed; Borrower or any Borrower Affiliate shall obtain Bankruptcy Court approval of a disclosure statement for a Reorganization Plan other than an Acceptable Plan, Plan or a Confirmation Order shall be entered with respect to a Reorganization Plan proposed by a Person other than Borrowers (regardless of the proponent of such Reorganization Plan) if such Reorganization Plan is not an Acceptable Plan; any there shall be filed by Borrower shall, without Lender's consent, file any motion to sell all or a substantial part of the Collateral on terms that do are not provide for acceptable to Lender in its sole discretion; any substantial part of Borrower’s assets, other than the termination of the DIP Facility and the Full Payment of the Obligations (including the Early Termination Fee) concurrently with the closing Collateral, shall be sold by Borrower and, as a consequence of such transaction; the Final Financing Order sale, Borrower is not entered able to continue its business operations in substantially the same manner as was conducted by January 28, 2005it prior to such sale; any Borrower shall, without Lender's consent, shall file any motion to alter, amend, vacate, supplement, modify, or reconsider, in any respect, either of the Financing Orders or, without Lender's ’s prior written consent, either of the Financing Orders is amended, vacated, stayed, reversed or otherwise modified; the Bankruptcy Court shall enter an order granting to any Person (other than Lender) Lender relief from the automatic stay to foreclose upon a Lien with respect to any Property of any Borrower that has an aggregate book value in excess of $50,000 100,000 or to terminate or otherwise exercise remedies under any material agreement, document or instrument which is entered into after the Closing Date, whether or not it relates with respect to any Debtof the Collateral (without regard to its value) and the Borrower consents to such relief without the Lender’s prior written consent; an order shall be entered for the substantive consolidation of the Estate of Borrower with any other Person without the prior written consent of the Lender; Borrower shall not have sufficient Availability on any date to pay, or shall otherwise fail to pay as and when due and payable, all costs and expenses of administration that are incurred by it in the Chapter 11 Case that are due and payable on such date; Borrower shall file a motion or other request with the Bankruptcy Court seeking authority to use any cash proceeds of the Collateral or to obtain any financing under Section 364(c) or Section 364(d) of the Bankruptcy Code or otherwise secured by a priming Lien, or Lien of equal priority with Lender’s Liens, upon any Collateral (Collateral, in each case 1. without Lender's ’s prior written consent and 1. if such motion fails to contemplate payment in full of the Obligations (including the Early Termination Fee) and termination of the DIP Facility)consent; any other security interest, Lien, claim or encumbrance an application shall be granted which filed by Borrower for the approval of any superpriority claim in the Chapter 11 Case that is PARI PASSU pari passu with or senior to the claims of Lender in Borrowers' Chapter 11 CaseObligations or there shall arise or be granted any such pari passu or superpriority claim; Borrower (or any Committee) shall challenge the validity, excepted as contemplated by the Financing Orders; the grant perfection or priority of any super priority administrative expense claim or any lien which is PARI PASSU with or senior to those of Lender; any payment of pre-petition debt except as explicitly contemplated by the Financing Orders with respect to the Pre-Petition Loan Agreements; the sale of all or substantially all of the assets of any of Borrowers to any Person; there shall be any challenge to the extent, validity, priority or unavoidability of any liens Liens of Lender securing the DIP Facility Obligations or the validity or enforceability of any of the obligations thereunderDIP Financing Documents; an Acceptable Planor, shall not have been filed with the Bankruptcy Court by May 31, 2005; an order shall be entered reversing, amending, supplementing, staying, vacating or otherwise modifying any Financing Order; there shall occur a post-petition event which causes or would cause a material adverse change or a material adverse effect on the ability of any Borrower to perform its obligations under the DIP Facility or to continue the operation of its business; without Lender's ’s consent, any Borrower shall discontinue or suspend all or any material part of its business operations or commence an orderly wind-down or liquidation of any material part of the Collateral; any application shall be filed by any Borrower for the approval of any other super-priority claim in the Chapter 11 Cases which is PARI PASSU with or senior to the claims of Lender against Borrowers or there shall arise such claim, except for such application which provides that as a condition precedent to such action the Full Payment of the Obligations hereunder and the termination of the Commitment hereunder; an order shall be entered which provides relief from the automatic stay otherwise imposed pursuant to Section 362 of the Bankruptcy Code, which order permits any creditor other than Lender to realize upon or to exercise any right or remedy with respect to the Collateral (other than any such right or remedy exercised in respect of those Liens listed on Schedule 8.1(d) hereof which do not relate to the Pre-Petition Loan Agreements) or to terminate any license, franchise, lease or similar arrangement, where such relief could have a Material Adverse Effect; or any order of adequate protection is provided by the Bankruptcy Court in the Chapter 11 Case in favor of any of Borrowers' pre-petition creditors without the consent of Lender or any such adequate protection is modified or expanded without the consent of Lender (except for adequate protection paid to equipment owners, lienholders and lessors pursuant to an order of the Bankruptcy Court after notice to Lender not to exceed amounts set forth in the Budget under "Lease Payments" PLUS $75,000 in the aggregate).