Exhibit 10.3


$325,000,000


 


BRIDGE LOAN AGREEMENT


 


Dated as of February 22, 2007


 


Among


 


BUILDING MATERIALS CORPORATION OF AMERICA,


 


BMCA ACQUISITION INC.


 


and


 


BMCA ACQUISITION SUB INC.


 


as Borrowers


 


and


 


THE INITIAL LENDERS NAMED HEREIN


 


as Initial Lenders


 


and


 


DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH


 


as Collateral Agent and Administrative Agent


 


and


 


DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH


 


and


 


BEAR STEARNS CORPORATE LENDING INC.


 


as Joint Lead Arrangers


 


and


 


DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH,


 


BEAR STEARNS CORPORATE LENDING INC.


 


and


 


JPMORGAN CHASE BANK, N.A.


 


as Joint Book Managers


 

















 


TABLE OF CONTENTS


 


	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  DEFINITIONS AND ACCOUNTING TERMS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01. Certain Defined
  Terms

  	
   

  	
  2

  
	
  SECTION 1.02. Computation of
  Time Periods; Other Definitional Provisions

  	
   

  	
  25

  
	
  SECTION 1.03. Accounting
  Terms

  	
   

  	
  25

  
	
  SECTION 1.04. Currency
  Equivalents Generally

  	
   

  	
  26

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  AMOUNTS AND TERMS OF THE BRIDGE LOANS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01. The Bridge
  Loans

  	
   

  	
  26

  
	
  SECTION 2.02. Making the
  Bridge Loans

  	
   

  	
  26

  
	
  SECTION 2.03. Repayment of
  Bridge Loans; Option to Rollover Bridge Loans

  	
   

  	
  27

  
	
  SECTION 2.04. Reduction of
  the Bridge Loan Commitments

  	
   

  	
  29

  
	
  SECTION 2.05. Prepayments

  	
   

  	
  29

  
	
  SECTION 2.06. Interest

  	
   

  	
  31

  
	
  SECTION 2.07. Fees

  	
   

  	
  31

  
	
  SECTION 2.08. Increased
  Costs, Etc

  	
   

  	
  32

  
	
  SECTION 2.09. Payments and
  Computations

  	
   

  	
  34

  
	
  SECTION 2.10. Taxes

  	
   

  	
  36

  
	
  SECTION 2.11. Sharing of
  Payments, Etc

  	
   

  	
  39

  
	
  SECTION 2.12. Use of Proceeds

  	
   

  	
  40

  
	
  SECTION 2.13. Evidence of
  Debt

  	
   

  	
  40

  
	
  SECTION 2.14. Relationship
  Among the Borrowers.

  	
   

  	
  41

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  CONDITIONS OF LENDING

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01. Conditions
  Precedent

  	
   

  	
  42

  
	
  SECTION 3.02. Determinations
  Under Section 3.01

  	
   

  	
  47

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  REPRESENTATIONS AND WARRANTIES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01. Representations
  and Warranties of the Borrowers

  	
   

  	
  48

  



 


i

















 


	
  ARTICLE V

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  COVENANTS OF THE BORROWERS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01. Affirmative
  Covenants

  	
   

  	
  55

  
	
  SECTION 5.02. Negative
  Covenants

  	
   

  	
  63

  
	
  SECTION 5.03. Reporting
  Requirements

  	
   

  	
  75

  
	
  SECTION 5.04. Financial
  Covenants

  	
   

  	
  78

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EVENTS OF DEFAULT

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01. Events of
  Default

  	
   

  	
  79

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  THE AGENTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 7.01. Authorization
  and Action

  	
   

  	
  82

  
	
  SECTION 7.02. Agents’
  Reliance, Etc

  	
   

  	
  83

  
	
  SECTION 7.03. DBCA and
  Affiliates

  	
   

  	
  83

  
	
  SECTION 7.04. Lender Credit
  Decision

  	
   

  	
  84

  
	
  SECTION 7.05. Indemnification

  	
   

  	
  84

  
	
  SECTION 7.06. Successor
  Agents.

  	
   

  	
  84

  
	
  SECTION 7.07. Appointment of
  Supplemental Collateral Agents

  	
   

  	
  85

  
	
  SECTION 7.08. The Joint Lead
  Arrangers

  	
   

  	
  86

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  MISCELLANEOUS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.01. Amendments, Etc

  	
   

  	
  86

  
	
  SECTION 8.02. Notices, Etc

  	
   

  	
  87

  
	
  SECTION 8.03. No Waiver;
  Remedies

  	
   

  	
  88

  
	
  SECTION 8.04. Costs and
  Expenses

  	
   

  	
  88

  
	
  SECTION 8.05. Right of
  Set-off

  	
   

  	
  90

  
	
  SECTION 8.06. Binding Effect

  	
   

  	
  91

  
	
  SECTION 8.07. Assignments and
  Participations

  	
   

  	
  91

  
	
  SECTION 8.08. Execution in
  Counterparts

  	
   

  	
  94

  
	
  SECTION 8.09. Confidentiality

  	
   

  	
  95

  
	
  SECTION 8.10. Release or
  Subordination of Collateral/Release of Guarantor

  	
   

  	
  95

  
	
  SECTION 8.11. Jurisdiction,
  Etc.

  	
   

  	
  95

  
	
  SECTION 8.12. Governing Law

  	
   

  	
  96

  
	
  SECTION 8.13. Waiver of Jury
  Trial

  	
   

  	
  96

  
	
  SECTION 8.14. Agreement to
  Comply With Court Order

  	
   

  	
  96

  
	
  SECTION 8.15. Patriot Act
  Notice

  	
   

  	
  96

  



 


ii

















 


	
  SCHEDULES

  	
   

  	
   

  
	
  Schedule I

  	
  -

  	
  Bridge Loan Commitments and Lending Offices

  
	
  Schedule II

  	
  -

  	
  Guarantors

  
	
  Schedule 4.01(b)

  	
  -

  	
  Subsidiaries

  
	
  Schedule 4.01(f)

  	
  -

  	
  Disclosed Litigation

  
	
  Schedule 4.01(k)

  	
  -

  	
  Plans, Multiemployer Plans and Welfare Plans

  
	
  Schedule 4.01(l)

  	
  -

  	
  Environmental Disclosure

  
	
  Schedule 4.01(m)

  	
  -

  	
  Open Years

  
	
  Schedule 4.01(o)

  	
  -

  	
  Surviving Debt

  
	
  Schedule 4.01(p)

  	
  -

  	
  Liens

  
	
  Schedule 4.01(q)

  	
  -

  	
  Owned Real Property

  
	
  Schedule
  4.01(r)(1)

  	
  -

  	
  Leased Real Property (Lessee)

  
	
  Schedule
  4.01(r)(2)

  	
  -

  	
  Leased Real Property (Lessor)

  
	
  Schedule 4.01(s)

  	
  -

  	
  Investments

  
	
  Schedule 4.01(t)

  	
  -

  	
  Intellectual Property

  
	
  Schedule 4.01(u)

  	
  -

  	
  Material Contracts

  
	
  Schedule
  5.02(a)(iii)

  	
   

  	
  Elk Liens

  
	
  Schedule
  5.02(b)(iii)(D)

  	
   

  	
  Elk Debt

  
	
  Schedule 8.02

  	
  -

  	
  Addresses

  



 


EXHIBITS


	
  Exhibit A-1

  	
  -

  	
  Form of Bridge Loan Note

  
	
  Exhibit A-2

  	
  -

  	
  Form of Rollover Note

  
	
  Exhibit B

  	
  -

  	
  Form of Notice of Borrowing

  
	
  Exhibit C

  	
  -

  	
  Form of Assignment and Acceptance

  
	
  Exhibit D

  	
  -

  	
  Form of Solvency Certificate

  
	
  Exhibit E

  	
  -

  	
  Form of Mortgage

  
	
  Exhibit F

  	
  -

  	
  Approval Order

  
	
  Exhibit G

  	
  -

  	
  Form of Opinion of Counsel to the Loan Parties

  
	
  Exhibit H

  	
  -

  	
  Form of Opinion of General Counsel to BMCA

  
	
  Exhibit I

  	
  -

  	
  Form of Security Agreement

  
	
  Exhibit J

  	
  -

  	
  Form of Guaranty

  
	
  Exhibit K

  	
  -

  	
  Form of Intellectual Property Security Agreement

  
	
  Exhibit L

  	
  -

  	
  Description of Notes

  



 


iii

















 


BRIDGE LOAN AGREEMENT


 


BRIDGE
LOAN AGREEMENT (this “Agreement”)
dated as of February 22, 2007
among BUILDING MATERIALS CORPORATION OF AMERICA, a Delaware corporation (“BMCA”), BMCA
ACQUISITION INC., a Delaware corporation (“BMCA Acquisition”) and BMCA ACQUISITION SUB
INC., a Delaware corporation (“BMCA Acquisition Sub” and together with BMCA and BMCA
Acquisition, collectively, the “Borrowers” and each a “Borrower”), the banks, financial
institutions and other institutional lenders listed on the signature pages
hereof as Initial Lenders (the “Initial Lenders”), DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH,
as collateral agent (in such capacity, together with any successor collateral
agent appointed pursuant to Article VII, the “Collateral Agent”) and as administrative
agent (in such capacity, together with any successor administrative agent
appointed pursuant to Article VII, the “Administrative Agent”), DEUTSCHE BANK AG
CAYMAN ISLANDS BRANCH and BEAR STEARNS CORPORATE LENDING INC., as joint lead
arrangers (in such capacities, the “Joint Lead Arrangers”,
and together with the Administrative Agent, collectively, the “Agents”), for the Lenders (as
hereinafter defined) and DEUTSCHE BANK, AG CAYMAN ISLANDS BRANCH, BEAR STEARNS
CORPORATE LENDING INC. and JPMORGAN CHASE BANK, N.A., as joint book managers.


 


PRELIMINARY STATEMENTS:


 


(1)           The
Borrowers have requested and the Initial Lenders have agreed to establish a $325,000,000
bridge loan facility on the terms and conditions set forth therein. The
Borrowers are concurrently (a) entering into a $600,000,000 Revolving Credit Agreement
(such Revolving Credit Agreement, as amended, restated, supplemented or
otherwise modified, replaced or refinanced, the “Revolving
Credit Facility”) with Deutsche Bank AG New York Branch, as
collateral monitoring agent and administrative agent, and the other financial
institutions party thereto and (b) entering into a $975,000,000 Term Loan Agreement
(such Term Loan Agreement, as amended, restated, supplemented or otherwise
modified, replaced or refinanced, the “Term Loan Facility”).
All the proceeds of the Bridge Loan Facility (as hereinafter defined) and a
substantial portion of the proceeds of the Revolving Credit Facility and the Term
Loan Facility will be used to finance, in part, the acquisition, including
through a tender offer (the “Tender Offer”),
by BMCA Acquisition Sub, a wholly-owned Subsidiary of BMCA Acquisition, which
is a wholly-owned Subsidiary of  BMCA, of
not less than a majority of the common stock, $1.00 par value (the “Company Stock”), of ElkCorp, a
Delaware corporation (“Elk”), and
the refinancing of substantially all the indebtedness of BMCA. Following the
consummation of the Tender Offer, BMCA will cause BMCA Acquisition Sub to merge
into Elk (the “Merger”),
thereby acquiring the balance of the Company Stock and will refinance
substantially all of the outstanding indebtedness of Elk (collectively, the
Bridge Loan Facility, the Revolving Credit Facility, the Term Loan Facility,
the Tender Offer, the acquisition of the Option Stock (as hereinafter defined),
such refinancings and the Merger, the “Transaction”).


 


(2)           BMCA
currently has certain outstanding Debt (as hereinafter defined), including (i) Debt
under the Existing Credit Agreement (as hereinafter defined), (ii) certain
8% senior notes due 2007 (the “2007 Notes”),
(iii) certain 8% senior notes due 2008 (the “2008
Notes”) and (iv) certain 7.75% senior notes due 2014 (the “2014 Notes”).


 

















 


NOW,
THEREFORE, in consideration of the premises and of the mutual covenants and
agreements contained herein, the parties hereto hereby agree as follows:


 


ARTICLE I



DEFINITIONS AND ACCOUNTING TERMS


 


SECTION 1.01.      Certain
Defined Terms. As used in this Agreement, the following terms shall have
the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):


 


“Administrative Agent”
has the meaning specified in the recital of parties to this Agreement.


 


“Administrative Agent’s Account”
means the account of the Administrative Agent as the Administrative Agent shall
specify in writing to the Lenders from time to time.


 


“Affiliate” means, as
to any Person, any other Person that, directly or indirectly, controls, is
controlled by or is under common control with such Person or is a director or
officer of such Person. For purposes of this definition, the term “control”
(including the terms “controlling”, “controlled by” and “under common control
with”) of a Person means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of Voting Interests, by contract or otherwise.


 


“Agents” has the
meaning specified in the recital of parties to this Agreement.


 


“Amortization Basket”
means $25,000,000 in the aggregate in each Fiscal Year.


 


“Approved Fund” means
any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.


 


“Assignment and Acceptance”
means an assignment and acceptance entered into by a Lender and an Eligible
Assignee, and accepted by the Administrative Agent, in accordance with
Section 8.07 and in substantially the form of Exhibit C hereto.


 


“Base Rate” means a fluctuating interest
rate per annum in effect from time to time, which rate per annum shall at all
times be equal to the higher of (i) the Prime Lending Rate and (ii) 1⁄2 of
1% per annum in excess of the overnight Federal Funds Rate at such time.


 


“BMCA Acquisition” has the meaning
specified in the recital of parties to this Agreement.


 


“BMCA Acquisition Sub” has the
meaning specified in the recital of parties to this Agreement.


 


2

















 


“BMCA Holdings” means
BMCA Holdings Corporation, a Delaware corporation.


 


“Board of Directors”
means, with respect to any Person, (i) in the case of any corporation, the
board of directors of such Person, (ii) in the case of any limited liability
company, the managers of such person, (iii) in the case of any limited
partnership with a corporate general partner, the Board of Directors of the
general partner of such Person and (iv) in any other case, the functional
equivalent of the foregoing.


 


“Borrower” and “Borrowers” have the meaning
specified in the recital of parties to this Agreement and shall include after
the date of the Merger, Elk as the successor to BMCA Acquisition Sub.


 


“Borrowers’ Account”
means the account of BMCA maintained by BMCA with Citibank N.A. at its office
at 399 Park Avenue, New York, New York 10043, Account No. NY DDA
30541035 Building Material Corporation of America, or such other account as BMCA
shall specify in writing to the Administrative Agent.


 


“Bridge Loan” means a loan by a
Lender to the Borrowers pursuant to Section 2.01.


 


“Bridge Loan Borrowing”
means the aggregate of the Bridge Loans made by all the Lenders.


 


“Bridge Loan Commitment”
means, with respect to any Lender at any time, the amount set forth opposite
such Lender’s name on Schedule I hereto under the caption “Bridge Loan
Commitment.”


 


“Bridge Loan Facility”
means the Bridge
Loan Commitments and the provisions herein related to the Bridge Loans.


 


“Bridge Note” means each promissory
note, if any, of the Borrowers payable to the order of any Lender, in substantially
the form of Exhibit A-1 hereto, evidencing the aggregate indebtedness of
the Borrowers to such Lender resulting from the Bridge Loans made by such
Lender, as amended.


 


“Business Day” means a
day of the year on which banks are not required or authorized by law to close
in New York City and, if the applicable Business Day relates to any
Eurodollar Rate Advances, on which dealings are carried on in the London
interbank market.


 


“Capital Expenditures”
means, for any Person for any period, all expenditures made, directly or
indirectly, by such Person or any of its Subsidiaries during such period for
equipment, fixed assets, real property or improvements, or for replacements or
substitutions therefor or additions thereto, that have been or should be, in accordance
with GAAP, reflected as additions to property, plant or equipment on a
Consolidated balance sheet of such Person, provided, however, that with respect to BMCA or any of its
Subsidiaries as of the date hereof and prior to giving effect to the Tender
Offer, Capital Expenditures shall not include such additions for an aggregate
purchase price of up to


 


3

















 


$40,000,000 attributable to the purchase of assets
that are subject to operating leases in effect as of the date hereof.


 


“Capital Stock” of any
Person means, for use in the definition of “Wholly-Owned Non Recourse
Subsidiary, any and all shares, interests (including partnership interests),
warrants, rights, options or other interests, participations or other
equivalents of or interests in (however designated) equity of such Person,
including common or preferred stock, whether now outstanding or issued after
July 26, 2004, but excluding any debt securities convertible into or
exchangeable for such equity.


 


“Capitalized Leases”
means all leases that have been or should be, in accordance with GAAP, recorded
as capitalized leases.


 


“Cash Equivalents”
means any of the following, to the extent owned by BMCA or any of its
Subsidiaries free and clear of all Liens other than Liens created under the
Collateral Documents or to secure Debt under the Revolving Credit Facility, the
Bridge Loan Facility, the Existing Indentures or the Senior Notes Indenture (a) securities
issued or fully guaranteed or insured by the United States government or any
agency thereof, (b) certificates of deposit, eurodollar time deposits,
overnight bank deposits and bankers’ acceptances of any commercial bank
organized under the laws of the United States, any state thereof, the District
of Columbia, any foreign bank, or its branches or agencies that, at the time of
acquisition, are rated at least “A-1” by S&P or “P-1” by Moody’s,
(c) commercial paper of an issuer rated at least “A-1” by S&P or “P-1”
by Moody’s or (d) shares of any money market fund that (i) has at
least 95% of its assets invested continuously in the types of investments
referred to in clauses (a), (b) and (c) above, (ii) has net assets of not
less than $500,000,000 and (iii) is rated at least “A-1” by S&P or “P-1”
by Moody’s; provided, however,
that the maturities of all obligations of the type specified in clauses (a),
(b) and (c) above shall not exceed 360 days.


 


“Casualty Event” means the
disposition of property pursuant to a condemnation proceeding or the
destruction of property as a result of casualty.


 


“CERCLA” means the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
42 U.S.C. 9601 et seq., as it may be as amended from time to time during the
term of this Agreement.


 


“Certain Permitted Dispositions” means, with
respect to any assets of any Loan Party, any sale, lease, transfer or other
disposition in connection with the following: (i) sales of Inventory in the
ordinary course of its business and the granting of any option or other right
to purchase, lease or otherwise acquire Inventory in the ordinary course of its
business; (ii) sales, transfers or other dispositions of assets among Loan
Parties; (iii) any such transaction that constitutes an investment in a
Non-Recourse Subsidiary or other Person that is not a Loan Party permitted
under Section 5.02(f)(ii), (iv) any cash payment made by any Loan Party in the
ordinary course of business; and (v) any Casualty Event.


 


“CFC” means an entity
that is a controlled foreign corporation under Section 957 of the Internal
Revenue Code.


 


4

















 


“Change of Control”
means the occurrence of any of the following:


 


(a)           prior to the time that at least 15%
of the then outstanding Voting Interests of the Parent, BMCA, or any Subsidiary
of the Parent of which BMCA is also a Subsidiary is publicly traded on a
national securities exchange or in the NASDAQ (national market system), the
Permitted Holders cease to be the “beneficial owner” (as defined in Rules 13d-3
and 13d-5 of the Securities and Exchange Commission under the Securities Act of
1934, as amended), directly or indirectly, of majority voting power of the
Voting Interests of BMCA whether as a result of issuance of securities of BMCA or
any of its Affiliates, any merger, consolidation, liquidation or dissolution of
BMCA or any of its Affiliates, any direct or indirect transfer of securities by
any Permitted Holder or by the Parent or any of its Subsidiaries or otherwise
(for purposes of this clause (a) and clause (b) below, the Permitted
Holders shall be deemed to beneficially own any Voting Interests of a
corporation (the “specified corporation”) held by any other corporation (the “parent
corporation”) so long as the Permitted Holders beneficially own (as so
defined), directly or indirectly, a majority of the Voting Interests of the
parent corporation);


 


(b)           any “Person” (as such term is used in
sections 13(d) and 14(d) of the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended), other than one or more Permitted
Holders, is or becomes the beneficial owner (as defined in clause (a)
above, except that a Person shall be deemed to have “beneficial ownership” of
all shares that any such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of more than 35% of the Voting Interest or Parent or BMCA; provided
that the Permitted Holders beneficially own (as defined in clause (a)
above), directly or indirectly, in the aggregate a lesser percentage of the
Voting Interests of the Parent or BMCA than such  other Person and do not have the right or
ability by voting power, contract or otherwise to elect or designate for
election a majority of the Board of Directors of Parent or BMCA; or


 


(c)           during any period of two consecutive
years, individuals who at the beginning of such period constituted the Board of
Directors of BMCA (together with any new directors whose election by such Board
or whose nomination for election by the shareholders of BMCA including
predecessors, was approved by a vote of a majority of the directors of BMCA
then still in office who were either directors at the beginning of such period
or whose election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board of Directors of BMCA then
in office.


 


“Closing Date” has the
meaning specified in Section 3.01.


 


“Collateral” means all
“Collateral” referred to in the Collateral Documents and all other property
that is or is intended to be subject to any Lien in favor of the Collateral
Agent for the benefit of the Secured Parties.


 


5

















 


“Collateral Agency Agreement”
means the Collateral Agency Agreement dated as of the date hereof among DBNY,
as administrative agent under the Term Loan Facility, each trustee under the
Existing Indentures, and the Collateral Agreement Agent, as the same may be
amended, restated, supplemented, replaced or otherwise modified.


 


“Collateral Agent” has
the meaning specified in the recital of parties to this Agreement.


 


“Collateral Agreement Agent”
means DBTCA, in its capacity as collateral agent under the Collateral Agency
Agreement, and any successor thereof in such capacity.


 


“Collateral Documents”
means the Security Agreement, the Mortgages, each of the collateral documents,
instruments and agreements delivered pursuant to Section 3.01 or
Section 5.01(j), and each other agreement that creates or purports to
create a Lien in favor of the Collateral Agent for the benefit of the Secured
Parties, as amended, restated, supplemented, replaced or otherwise modified.


 


“Company Stock” has
the meaning specified in the preliminary statements to this Agreement.


 


“Confidential Information”
means information that any Loan Party furnishes to any Agent or any Lender on a
confidential basis, but does not include any such information that is or
becomes generally available to the public other than as a result of a breach by
such Agent or any Lender of its obligations hereunder or that is or becomes
available to such Agent or such Lender from a source other than the Loan
Parties that is not, to the best of such Agent’s or such Lender’s knowledge,
acting in violation of a confidentiality agreement with a Loan Party.


 


“Consolidated” refers
to the consolidation of accounts in accordance with GAAP.


 


“Consolidated Net Income (Loss)”
means, with respect to BMCA, the consolidated net income (or loss) of BMCA and
its Consolidated Subsidiaries (which shall include, for the purpose of this
definition, any Non-Material Subsidiary and any Non-Recourse Subsidiary) for
such period as determined in accordance with GAAP, adjusted to the extent
included in calculating such net income (or loss), by excluding: (i) all extraordinary
gains or losses in such period; (ii) net income (or loss) of any other Person
attributable to any period prior to the date of combination of such other
Person with such Person or any of its Subsidiaries on a “pooling of interests”
basis; (iii) net gains or losses in respect of dispositions of assets by such
Person or any of its Subsidiaries (including pursuant to a sale-and-leaseback
arrangement) other than in the ordinary course of business; (iv) the net income
(loss) of any Subsidiary of such Person to the extent that the declaration of
dividends or distributions by that Subsidiary of that income is not at the time
permitted, directly or indirectly, by operation of the terms of its charter or
any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary or its shareholders; (v)
the net income (or net loss) of any other Person that is not a Subsidiary of
the first Person with respect to which Consolidated Net Income is being
calculated (the “first Person”) and in which any other


 


6

















 


Person (other than such first Person and/or any of its
Subsidiaries) has an equity interest or of a Non-Recourse Subsidiary of such
first Person, except to the extent of the amount of dividends or other
distributions actually paid or made to such first Person or any of its
Subsidiaries by such other Person during such period (subject, in the case of a
dividend or distribution received by a Subsidiary of such first Person, to the
limitations contained in clause (iv) above); (vi) any interest income resulting
from loans or investments in Affiliates (other than Subsidiaries), other than
cash interest income actually received; (vii) costs and expenses incurred in
connection with or as a result of the consummation of the Tender Offer or the
Merger; (viii) non-recurring, non cash charges, including any write-offs,
write-downs or impairment charges; and (ix) the cumulative effect of a change
in accounting principles. In determining Consolidated Net Income (Loss), gains
or losses resulting from the early retirement, extinguishment or refinancing of
indebtedness for money borrowed, including any fees and expenses associated
therewith, shall be deducted or added back, respectively.


 


“Contingent Obligation”
means, with respect to any Person, any Obligation or arrangement of such Person
to guarantee or with the effect of guaranteeing any Obligations constituting
Debt (“primary
obligations”) of any other Person (the “primary obligor”) in
any manner, whether directly or indirectly. The amount of any such Contingent
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Contingent Obligation
is made (or, if less, the maximum amount of such primary obligation for which
such Person may be liable pursuant to the terms of the instrument evidencing
such Contingent Obligation) or, if not stated or determinable, the anticipated
liability in respect thereof (assuming such Person is required to perform
thereunder), as determined by such Person in accordance with generally accepted
accounting principles.


 


“Creditors’ Committee”
means any official committee of creditors appointed in G-I Holdings’ bankruptcy
proceedings.


 


“Current Assets” of
any Person means all assets of such Person that would, in accordance with GAAP,
be classified as current assets of a company conducting a business the same as
or similar to that of such Person, after deducting adequate reserves in each
case in which a reserve is proper in accordance with GAAP.


 


“DBCA” means Deutsche Bank AG Cayman
Islands Branch.


 


“DBNY” means Deutsche Bank AG New
York Branch.


 


“DBTCA” means Deutsche Bank Trust
Company Americas.


 


“Debt” of any Person
means, without duplication, (a) all Debt for Borrowed Money, (b) all
Obligations of such Person for the deferred purchase price of property or
services (other than trade payables and other accrued current liabilities
incurred in the ordinary course of such Person’s business and either (i) not
overdue (to the knowledge of BMCA exercising reasonable diligence) by more than
the later to occur of (A) 90 days from the due date thereof and (B) 30 days
from the date BMCA becomes aware


 


7

















 


(exercising reasonable diligence) that such liability
is overdue, or (ii) are being contested in good faith in an appropriate
manner), (c) all Obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all Obligations of such
Person created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person, (e) all
Obligations of such Person as lessee under Capitalized Leases, (f) all
Obligations of such Person under acceptance, letter of credit or similar
facilities, (g) all Obligations (other than pursuant to the 2001 Long Term
Incentive Plan in effect on the date hereof or similar plans) of such Person to
purchase, redeem, retire, defease or otherwise make any payment in respect of
any Equity Interests in such Person or any other Person or any warrants, rights
or options to acquire such Equity Interests on or prior to December 31, 2015,
valued, in the case of Redeemable Preferred Interests, at the greater of its
voluntary or involuntary liquidation preference plus accrued and unpaid dividends, (h)  all Contingent
Obligations and Off-Balance Sheet Obligations of such Person, and (i) all
indebtedness and other payment Obligations referred to in clauses (a) through
(h) above of another Person secured by (or for which the holder of such Debt
has an existing right, contingent or otherwise, to be secured by) any Lien on
property (including accounts and contract rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of such
indebtedness or other payment Obligations.


 


“Debt for Borrowed Money”
of any Person means, at any date of determination, all items that, in
accordance with GAAP, would be classified as long term debt (and current
portions thereof) on a Consolidated balance sheet of such Person at such date.


 


“Default” means any
Event of Default or any event that would constitute an Event of Default but for
the passage of time or the requirement that notice be given or both.


 


“Default Interest” has
the meaning set forth in Section 2.06(b).


 


“Disclosed Litigation”
has the meaning specified in Section 4.01(f).


 


“DJ Action” means (a) the
adversary proceeding filed by G-I Holdings in the United States Bankruptcy
Court for the District of New Jersey on February 27, 2001 against the Creditors’
Committee in the G-I Holdings bankruptcy proceedings, consisting of an action seeking
declaratory judgment that BMCA has no successor liability for asbestos claims
against G-I Holdings and that BMCA is not the alter ego of G-I Holdings, and
(b) the subsequent litigation associated with such action.


 


“Domestic Lending Office”
means, with respect to any Lender, the office of such Lender specified as its “Domestic
Lending Office” opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender, as the case may
be, or such other office of such Lender as such Lender may from time to time
specify to the Borrowers and the Administrative Agent.


 


“EBITDA” means with
respect to BMCA and its Consolidated Subsidiaries (which shall include for the
purpose of this definition, any Non-Material Subsidiary and


 


8

















 


any Non-Recourse Subsidiary), at any date of determination,
Consolidated Net Income (Loss):


 


(a) plus determined on a Consolidated basis for BMCA, without
duplication, the sum of (i) interest expense, (ii) income tax
expense, (iii) depreciation expense, and (iv) amortization expense,


 


(b) plus restructuring, integration and other non-recurring
costs and expenses which were not previously included as an adjustment to
Consolidated Net Income (Loss), provided, however,
that the amount of such costs and expenses are set forth in reasonable detail
in a certificate to the Administrative Agent,


 


(c) plus any minority interest in any non-Wholly-Owned Recourse
Subsidiary that is otherwise Consolidated in the financial statements of BMCA.


 


“Eligible Assignee”
means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved
Fund; (d) a commercial bank organized under the laws of the United States,
or any State thereof, and having total assets in excess of $2,000,000,000;
(e) a savings and loan association or savings bank organized under the
laws of the United States, or any State thereof, and having total assets in
excess of $2,000,000,000; (f) a commercial bank organized under the laws
of any other country that is a member of the OECD or has concluded special
lending arrangements with the International Monetary Fund associated with its
General Arrangements to Borrow or of the Cayman Islands, or a political
subdivision of any such country, and having total assets in excess of $2,000,000,000,
so long as such bank is acting through a branch or agency located in the
country in which it is organized or another country that is described in this
clause (f); (g) the central bank of any country that is a member of
the OECD; (h) a finance company, insurance company or other financial
institution or fund (whether a corporation, partnership, trust or other entity)
that is engaged in making, purchasing or otherwise investing in commercial
loans in the ordinary course of business and (i) any other Person (other
than a natural person) approved by the Administrative Agent and, so long as no
Event of Default shall have occurred and be continuing at the time of
effectiveness of such assignment, BMCA (which approvals shall not be
unreasonably withheld); provided, however, that notwithstanding the foregoing, “Eligible
Assignee” shall not include BMCA or any of its Affiliates or Subsidiaries or
any of its competitors.


 


“Elk” has the meaning
specified in the preliminary statements to this Agreement.


 


“Elk Letters of Credit”
means the letters of credit issued for the account of Elk or any of its Subsidiaries
which are outstanding as of the date of the Merger.


 


“Elk  Material Adverse Effect” means any fact,
circumstance, event, change, effect or occurrence since June 30, 2006 that has
or would be reasonably likely to have a material adverse effect on the
business, results of operation or financial condition of Elk and its
Subsidiaries, taken as a whole, but, in any case, shall not include facts,
circumstances, events, changes, effects or occurrences (a) generally affecting
the industries in which Elk and its Subsidiaries operate (including general
pricing changes),


 


9

















 


or the economy or the financial or securities markets
in the United States or elsewhere in the world (including any regulatory and
political conditions or developments, or any outbreak or escalation of
hostilities, declared or undeclared acts of war or terrorism), except to the
extent any fact, circumstance, event, change, effect or occurrence that,
relative to other industry participants, disproportionately impacts the assets,
properties, business, results of operation or financial condition of Elk and
its Subsidiaries, taken as a whole, (b) resulting from the announcement of (i)
the proposal of the Tender Offer or (ii) the Transaction or (c) resulting
from any litigation related to the proposed Tender Offer or the Transaction and
provided, that any failure to meet
internal or published projections, forecasts or revenue or earning predictions
for any period shall not, in and of itself, constitute an Elk Material Adverse
Effect.


 


“Elk Private Notes”
means the 4.69% Senior Notes due 2007, the 6.28% Senior Notes due 2014, the
6.99% Senior Notes, Series A, due 2009 and the 7.49% Senior Notes, Series B,
due 2012 issued by Elk in private placement offerings.


 


“Environmental Action”
means any action, suit, written demand, demand letter, written claim, notice of
non-compliance or violation, written notice of liability or potential
liability, investigation, proceeding, consent order or consent agreement
relating to any Environmental Laws or Environmental Permits or arising from
alleged injury or threat to human health, safety or the environment, including
(a) by any governmental or regulatory authority for enforcement, cleanup,
removal, response, remedial or other actions or damages and (b) by any
governmental or regulatory authority or third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.


 


“Environmental Law”
means any applicable international, Federal, state, local or foreign statute,
law, ordinance, rule, regulation, code, order, writ, judgment, injunction,
decree or judicial or enforceable administrative agency interpretation, policy
or guidance relating to pollution or protection of the environment, human
health, safety or natural resources, including those relating to the use,
handling, transportation, treatment, manufacture, generation, storage,
disposal, release or discharge of Hazardous Materials.


 


“Environmental Permit”
means any permit, approval, identification number, license or other
authorization required under any Environmental Law.


 


“Equity Interests”
means, with respect to any Person, any and all shares, interests (including
preferred interests), warrants, rights, options or other interests,
participations or other equivalents of or interests in (however designated)
equity of such Person, including common or preferred stock, whether now
outstanding or issued after the date hereof, but excluding any debt securities
convertible into or exchangeable for such equity.


 


“ERISA” means the
Employee Retirement Income Security Act of 1974, as amended from time to time,
and the applicable regulations promulgated and rulings issued thereunder.


 


10

















 


“ERISA Affiliate”
means any Person that for purposes of Title IV of ERISA is a member of the
controlled group of any Loan Party, or under common control with any Loan
Party, within the meaning of Section 414 of the Internal Revenue Code.


 


“ERISA Event” means
(a)(i) the occurrence of a reportable event, within the meaning of
Section 4043 of ERISA, with respect to any Plan unless the 30-day notice
requirement with respect to such event has been waived by the PBGC or by ERISA
or (ii) the requirements of Section 4043(b) of ERISA apply with
respect to a contributing sponsor, as defined in Section 4001(a)(13) of
ERISA, of a Plan, and an event described in paragraph (9), (10), (11),
(12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur with
respect to such Plan within the following 30 days; (b) the application for a
minimum funding waiver with respect to a Plan; (c) the provision by the
administrator of any Plan of a notice of intent to terminate such Plan,
pursuant to Section 4041(a)(2) of ERISA (including any such notice with
respect to a plan amendment referred to in Section 4041(e) of ERISA);
(d) the cessation of operations at a facility of any Loan Party or any
ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA;
(e) the withdrawal by any Loan Party or any ERISA Affiliate from a
Multiple Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the
conditions for imposition of a lien under Section 302(f) of ERISA shall
have been met with respect to any Plan; (g) the adoption of an amendment
to a Plan requiring the provision of security to such Plan pursuant to
Section 307 of ERISA; or (h) the institution by the PBGC of
proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA
that constitutes grounds for the termination of, or the appointment of a
trustee to administer, such Plan.


 


“Eurocurrency Liabilities”
has the meaning specified in Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.


 


“Eurodollar Rate”
means, the rate per annum obtained by dividing (i)(a) the per annum rate that
appears on page 3750 of the Dow Jones Market Screen (or any successor page) for
Dollar deposits with maturities comparable to the applicable Interest Period
commencing two Business Days thereafter as of 10:00 A.M. (New York time) on the
date which is two Business Days prior to the commencement of the respective
Interest Period or (b) if such rate does not appear on page 3750 of the Dow
Jones Market Screen (or any successor page) the offered quotations to
first-class banks in the New York interbank Eurodollar market by the
Administrative Agent for Dollar deposits of amounts in immediately available
funds comparable to the outstanding principal amount of the applicable
Eurodollar Rate Advance (or as reasonably selected by the Administrative Agent)
for which the Eurodollar Rate is being determined with maturities comparable to
the Interest Period applicable to such Eurodollar Rate Advance commencing two
Business Days thereafter as of 10:00 A.M. (New York time) on the applicable
Interest Determination Date, divided (and rounded upward to the nearest 1/16 of
1%) by (ii) a percentage equal to 100% minus then stated maximum rate of all
reserve requirements (including any marginal, emergency, supplemental, special
or other reserves required by applicable law) applicable to any member bank of
the Federal Reserve System in respect


 


11

















 


of Eurocurrency funding or liabilities as defined in
Regulation D (or any successor category of liabilities under Regulation D).


 


“Eurodollar Rate Reserve Percentage”
for any Interest Period means the reserve percentage applicable two Business
Days before the first day of such Interest Period under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) for a member
bank of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities (or with
respect to any other category of liabilities that includes deposits by
reference to which the interest rate on Bridge Loans or Rollover Loans is
determined) having a term equal to such Interest Period.


 


“Events of Default”
has the meaning specified in Section 6.01.


 


“Exchange Note Indenture” means an indenture to
be entered into in connection with the Exchange Notes, which indenture shall
contain substantially similar terms and conditions as set forth in Exhibit L
hereto, and otherwise in form and substance satisfactory to the Required
Lenders and BMCA.


 


“Exchange Notes” means notes to be issued under
the Exchange Note Indenture in exchange for Rollover Loans pursuant to the
provisions of Section 2.03(d).


 


“Exchange Notes Trustee” means the trustee acting
under the Exchange Notes Indenture.


 


“Exchange Notice” has the meaning specified in
Section 2.03(d).


 


“Excluded Assets” has the meaning specified in
Section 5.02(e)(iii).


 


“Existing Credit Agreement”
means the Amended and Restated Credit Agreement, dated as of September 28,
2006, among BMCA, Citicorp USA, Inc., as administrative agent and the financial
institutions party thereto.


 


“Existing Indentures”
means collectively, (a) the Indenture, dated as of October 20, 1997,
between BMCA and The Bank of New York (“BNY”), as trustee, pursuant to which the 2007
Notes were issued, (b) the Indenture, dated as of December 3, 1998,
between BMCA and BNY, as trustee, pursuant to which the 2008 Notes were issued,
and (c) the 2014 Notes Indenture, as each indenture described in the foregoing
clauses (a) through (c) above has been amended, supplemented or otherwise
modified from time to time as of the date hereof, and as each such indenture
may be further amended, supplemented or otherwise modified from time to time as
permitted under the Loan Documents.


 


“Extraordinary Receipt”
means any cash received by or paid to or for the account of any Person not in
the ordinary course of business, including tax refunds, pension plan
reversions, proceeds of insurance (including any key man life insurance but
excluding


 


12

















 


proceeds of business interruption insurance to the
extent such proceeds constitute compensation for lost earnings), condemnation
awards (and payments in lieu thereof), indemnity payments and any purchase
price adjustment received in connection with any purchase agreement.


 


“Federal Funds Rate”
means, for any period, a fluctuating interest rate per annum equal for each day
during such period to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day for such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.


 


“Federal Reserve Board”
means the Board of Governors of the United States Federal Reserve System, or
any successor thereto.


 


“Final Maturity Date” has the meaning
specified in Section 2.03(b).


 


“Fiscal Year” means a
fiscal year of BMCA and its Consolidated Subsidiaries ending on
December 31 in any calendar year.


 


“Fixed Rate” has the meaning
specified in Section 2.06(a).


 


“Fund” means any
Person (other than an individual) that is or will be engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business.


 


“Funding Date” has the meaning
specified in Section 2.07(b).


 


“Funding Fee” has the meaning
specified in Section 2.07(b).


 


“Future G-I Letters of Credit”
means the letters of credit to be issued after the Closing Date for the benefit
of G-I Holdings that do not constitute Initial G-I Holdings Letters of Credit. For
the avoidance of doubt, issuances of Future G-I Letters of Credit, as well as
renewals of Future G-I Letters of Credit (to the extent such renewals increase
the stated amount of such Future G-I Letters of Credit), shall be deemed to be
restricted distributions for purposes of Section 5.02(g).


 


“GAAP” has the meaning
specified in Section 1.03.


 


“G-I Holdings” means
G-I Holdings, Inc. a Delaware corporation.


 


“G-I Holdings Tax Group”
means G-I Holdings and the corporations that in any tax year (ending before or
after the Closing Date) join with G-I Holdings, BMCA, or any successor or
predecessor thereof in filing a consolidated U.S. Federal income tax return


 


13

















 


as members of an affiliated group within the meaning
of Section 1504(a)(1) of the Internal Revenue Code.


 


“Governmental Authority” means any nation or government, any
state, province, city, municipal entity or other political subdivision thereof,
and any governmental, executive, legislative, judicial, administrative or
regulatory agency, department, authority, instrumentality, commission, board,
bureau or similar body, whether Federal, state, provincial, territorial, local
or foreign.


 


“Governmental Authorization” means any authorization, approval,
consent, franchise, license, covenant, order, ruling, permit, certification,
exemption, notice, declaration or similar right, undertaking or other action
of, to or by, or any filing, qualification or registration with, any
Governmental Authority.


 


“Guarantors” means
BMCA and the Subsidiaries of BMCA listed on Schedule II hereto and each
other Subsidiary of BMCA that shall be required to execute and deliver a
guaranty pursuant to Section 5.01(j); provided, however, that neither Elk
nor any of its Subsidiaries shall be required to be a Guarantor at any time
prior to the consummation of the Merger; provided, further,
that in any event any Subsidiary which is a guarantor with respect to the
Existing Indentures or the Senior Notes shall be required to be a Guarantor
hereunder.


 


“Guaranty” means the
guaranty referred to in Section 3.01(a)(iii), as such guaranty may be amended,
supplemented or otherwise modified from time to time.


 


“Hazardous Materials”
means (a) petroleum or petroleum products, by-products or breakdown
products, radioactive materials, asbestos-containing materials, polychlorinated
biphenyls and radon gas and (b) any other chemicals, materials or
substances designated, classified or regulated as hazardous or toxic or as a
pollutant or contaminant under any Environmental Law.


 


“Hedge Agreements”
means interest rate swap, cap or collar agreements, interest rate future or
option contracts, currency swap agreements, currency future or option contracts
and other hedging agreements.


 


“Indemnified Party”
has the meaning specified in Section 8.04(b).


 


“Initial G-I Holdings Letters of
Credit” means the letters of credit issued under the Existing
Credit Agreement and any letter of credit to be issued on the Closing Date for
the benefit of G-I Holdings, in an aggregate stated amount not to exceed $12,000,000,
together with any renewals (so long as all requirements for renewal shall have
been met) or replacement letters of credit, in each case, made simultaneously
with the expiration, cancellation or other termination of the Initial G-I
Holdings Letter of Credit so renewed or replaced, and made for the same purpose
and for the same beneficiary as such Initial G-I Holdings Letter of Credit so
renewed or replaced, provided
that at no time shall the aggregate stated amount of all outstanding Initial
G-I Holdings Letters of Credit exceed $12,000,000. For the avoidance of doubt,
no Initial G-I Holdings Letter of Credit shall be deemed to be a restricted
distribution for purposes of Section 5.02(g).


 


14

















 


“Initial Maturity Date” has the meaning
specified in Section 2.03(a).


 


“Initial Lenders” has the meaning
specified in the recital of parties to this Agreement.


 


“Insufficiency” means,
with respect to any Plan, the amount, if any, of its unfunded benefit
liabilities, as defined in Section 4001(a)(18) of ERISA.


 


“Intellectual Property Security
Agreement” means the Intellectual Property Security Agreement,
dated as of the date hereof, by and among BMCA, each of the other Grantors
party thereto and the Collateral Agent, as amended, supplemented or otherwise
modified from time to time.


 


“Intercreditor Agreements” means (i) the
General Intercreditor Agreement referred to in Section 3.01(a)(v) between DBCA,
as collateral agent hereunder and DBTCA, as Collateral Agreement Agent, and
(ii) the Revolver Intercreditor Agreement, referred to in Section 3.01(a)(v)
among DBCA, as collateral agent hereunder, DBTCA, as Collateral Agreement
Agent, and DBNY, as collateral agent under the Revolving Credit Facility, in
each case of (i) and (ii) above, as amended, supplemented or otherwise modified
or replaced from time to time.


 


“Interest Coverage Ratio”
means, at any date of determination, the ratio of (a) EBITDA to
(b) cash interest paid or required to be paid on, all Debt for Borrowed
Money, in each case, of or by BMCA and its Consolidated Subsidiaries for the period
of four consecutive fiscal quarters most recently ended with respect to which
financial statements are required to have been delivered pursuant to this
Agreement.


 


“Interest Determination Date”
means the second Business Day prior to the commencement of any Interest Period.


 


“Interest Period”
means, for each Bridge Loan and Rollover Loan, the period commencing on the
Closing Date or the Rollover Date, respectively, and ending three months after
each such date, and, thereafter, each subsequent three-month period commencing
on the last day of the immediately preceding Interest Period; provided,
however, that:


 


(a)           whenever the last day of any Interest
Period would otherwise occur on a day other than a Business Day, the last day
of such Interest Period shall be extended to occur on the next succeeding
Business Day, provided, however, that, if such extension would
cause the last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on the next
preceding Business Day; and


 


(b)           whenever the first day of any
Interest Period occurs on a day of an initial calendar month for which there is
no numerically corresponding day in the calendar month that succeeds such
initial calendar month by the number of months equal to the number of months in
such Interest Period, such Interest Period shall end on the last Business Day
of such succeeding calendar month.


 


15

















 


“Internal Revenue Code”
means the Internal Revenue Code of 1986, as amended from time to time, and the
regulations promulgated and rulings issued thereunder.


 


“Inventory” has the
meaning specified in the Security Agreement.


 


“Investment” in any
Person means any loan or advance to such Person, any purchase or other
acquisition of any Equity Interests or Debt or the assets comprising a division
or business unit or a substantial part or all of the business of such Person,
any capital contribution to such Person or any other direct or indirect investment
in such Person, including any acquisition by way of a merger or consolidation
(or similar transaction) and any arrangement pursuant to which the investor
incurs Debt of the types referred to in clause (i) or (j) of the
definition of “Debt”
in respect of such Person.


 


“Joint  Lead Arrangers” has the meaning
specified in the recital of parties to this Agreement.


 


“Lenders” means the
Initial Lenders and each Person that shall become a Lender hereunder pursuant
to Section 8.07 for so long as such Initial Lender or Person, as the case
may be, shall be a party to this Agreement.


 


“Lending Office”
means, with respect to any Lender, the office of such Lender specified opposite
its name on Schedule I hereto or such other office of such Lender as such
Lender may from time to time specify to BMCA and the Administrative Agent.


 


“Leverage Ratio” means, with respect
to BMCA, as of any date of determination, the ratio of (x) the average total Consolidated
outstanding Debt for Borrowed Money of BMCA and its Subsidiaries for the
immediately preceding four fiscal quarters (calculated on the basis of the sum
of the amounts thereof outstanding on the last day of each fiscal quarter
during such four fiscal quarter period, of (i) the principal amount of the
total Debt for Borrowed Money of BMCA and its Subsidiaries, minus (ii) BMCA’s and its Subsidiaries cash and Cash
Equivalents) to (y) Consolidated EBITDA of BMCA and its Subsidiaries for the
immediately preceding four fiscal quarters of BMCA ending on the last day of
the fiscal quarter of BMCA for which financial statements have been, or are
required to be, delivered pursuant to Section 5.03(b) or (c), as applicable.


 


“Lien” means any lien,
security interest or other charge or encumbrance of any kind, or any other type
of preferential arrangement, including the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on title
to real property.


 


“Loan Documents” means
(i) this Agreement, (ii) the Notes (if any), (iii) the Guaranty,
(iv) the Collateral Documents, and (v) the Intercreditor Agreements, in
each case as amended, supplemented, replaced or otherwise modified from time to
time.


 


“Loan Parties” means
the Borrowers and the Guarantors.


 


“Loans” means Bridge Loans or
Rollover Loans, as the context requires.


 


16

















 


“Margin Stock” has the
meaning specified in Regulation U.


 


“Material Adverse Change”
means any material adverse change in the business, condition (financial or
otherwise), operations, performance, properties or prospects of BMCA and its
Subsidiaries, taken as a whole, except for such material adverse change as may
arise solely and directly as a result of the Disclosed Litigation related to or
arising out of the alleged asbestos liabilities of BMCA.


 


“Material Adverse Effect” means a
material adverse effect on (a) the business, condition (financial or
otherwise), operations, performance, properties or prospects of BMCA and its
Subsidiaries, taken as a whole, (b) the rights and remedies of any Agent or any
Lender under any Loan Document or (c) the ability of any Loan Party to perform
its Obligations under any Loan Document to which it is or is to be a party,
except for such material adverse effect as may arise solely and directly as a
result of the Disclosed Litigation related to or arising out of the alleged
asbestos liabilities of BMCA.


 


“Material Contract”
means, with respect to any Person, each contract to which such Person is a
party involving aggregate consideration payable to or by such Person of $50,000,000
or more in any year and, in the case of BMCA or any of its Subsidiaries, is a
material contract which is required to be filed pursuant to Item 601(a)(10) of
Regulation S-K under the Securities Act of 1933.


 


“Merger” shall have the meaning
described in the preliminary statements to this Agreement.


 


“Merger Agreement” means the merger
agreement dated as of February 9, 2007, among BMCA Acquisition, BMCA
Acquisition Sub, and Elk.


 


“Moody’s” means Moody’s
Investors Service, Inc.


 


“Mortgage” has the meaning specified
in Section 3.01(a)(vi).


 


“Multiemployer Plan”
means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to
which any Loan Party or any ERISA Affiliate is making or accruing an obligation
to make contributions, or has within any of the preceding five plan years made
or accrued an obligation to make contributions.


 


“Multiple Employer Plan”
means a single employer plan, as defined in Section 4001(a)(15) of ERISA,
that (a) is maintained for employees of any Loan Party or any ERISA
Affiliate and at least one Person other than the Loan Parties and the ERISA
Affiliates or (b) was so maintained and in respect of which any Loan Party
or any ERISA Affiliate could have liability under Section 4064 or 4069 of
ERISA in the event such plan has been or were to be terminated.


 


“Net Cash Proceeds”
means, with respect to (A) any sale, lease, transfer or other disposition
including any and all involuntary dispositions of any assets or (B) the
incurrence or issuance of any Debt or (C) the sale or issuance of any
Equity Interests, of any Loan Party, the aggregate amount of cash received from
time to time (whether as


 


17

















 


initial consideration or through payment or
disposition of deferred consideration) by or on behalf of such Loan Party in
connection with such transaction, in each case, after deducting therefrom only
(without duplication) (a) reasonable and customary brokerage commissions,
underwriting fees and discounts, legal fees, finder’s fees and other similar
fees and commissions, (b) the amount of taxes paid or payable in
connection with or as a result of such transaction, (c) the amount of
liability reserves established in accordance with GAAP, (d) a reasonable
reserve for the after tax cost of any indemnification obligations (fixed or
contingent) attributable to sellers indemnities for the purchases undertaken by
BMCA and/or its Subsidiaries in connection with such disposition, and
(e) the amount of any Debt secured by a Lien on such assets that, by the
terms of the agreement or instrument governing such Debt, is required to be
repaid upon such disposition, in each case to the extent, but only to the
extent, that the amounts so deducted are, at the time of receipt of such cash,
actually paid to a Person that is not an Affiliate of such Person or any Loan
Party or any Affiliate of any Loan Party; provided, however, that in the case of taxes that
are deductible under clause (b) above but for the fact that, at the time
of receipt of such cash, such taxes have not been actually paid or are not then
payable, such Loan Party or such Subsidiary may deduct an amount (the “Reserved Amount”)
equal to the amount reserved in accordance with GAAP for such Loan Party’s or
such Subsidiary’s reasonable estimate of such taxes, other than taxes for which
such Loan Party or such Subsidiary is indemnified, provided further, however,
that, at the time such taxes are paid, an amount equal to the amount, if any,
by which the Reserved Amount for such taxes exceeds the amount of such taxes
actually paid shall constitute “Net Cash Proceeds” of the type for which such
taxes were reserved for all purposes hereunder.


 


“Non-Material Subsidiary” means, at
any time of determination, any Subsidiary of BMCA other than any Loan Party (a)
whose aggregate assets, when combined with the assets of all other Subsidiaries
of BMCA which qualify as a Non-Material Subsidiary for purposes of this
Agreement, at the last day of the most recently ended fiscal quarter of BMCA were
less than 1% of the Consolidated total assets of BMCA at such date or (b) whose
aggregate revenues, when combined with the revenues of all other Subsidiaries
of BMCA which qualify as a Non-Material Subsidiary for purposes of this
Agreement, for the most recently ended fiscal quarter of BMCA were less than 1%
of the Consolidated aggregate revenues of BMCA for such period, in each case
determined in accordance with GAAP.


 


“Non-Recourse Subsidiary” means a Subsidiary
of any Loan Party (A) which has been designated by such Loan Party as a
Non-Recourse Subsidiary, (B) which is not a Loan Party or otherwise party
to the Credit Agreement or any other Loan Document, (C) which is not
capitalized at any time by any investment by a Loan Party, except to the extent
permitted under Section 5.02(f) and (D) the Debt of which is completely
non-recourse to the Loan Parties or any of their Subsidiaries.


 


“Note” means a Bridge
Note or a Rollover Note.


 


“Notice of Borrowing”
has the meaning specified in Section 2.02(a).


 


18

















 


“NPL” means the
National Priorities List under CERCLA.


 


“Obligation” means,
with respect to any Person, any payment, performance or other obligation of
such Person of any kind, including any liability of such Person on any claim,
whether or not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
disputed, undisputed, legal, equitable, secured or unsecured, and whether or not
such claim is discharged, stayed or otherwise affected by any proceeding
referred to in Section 6.01(f). Without limiting the generality of the
foregoing, the Obligations of any Loan Party under the Loan Documents include
(a) the obligation to pay principal, interest, charges, expenses, fees,
attorneys’ fees and disbursements, indemnities and other amounts payable by
such Loan Party under any Loan Document and (b) the obligation of such
Loan Party to reimburse any amount in respect of any of the foregoing that any Lender,
in its sole discretion, may elect to pay or advance on behalf of such Loan
Party.


 


“OECD” means the
Organization for Economic Cooperation and Development.


 


“Off Balance Sheet Obligation”
means, with respect to any Person, any Obligation of such Person under a
synthetic lease, tax retention operating lease, off-balance sheet loan or
similar off-balance sheet financing classified as an operating lease in
accordance with GAAP, if, and only to the extent that, such Obligations would
give rise to a claim against such Person in a proceeding referred to in
Section 6.01(f) (it being understood that this definition of “Off Balance
Sheet Obligation” shall not include operating leases entered into in the
ordinary course of business).


 


“Open Year” has the
meaning specified in Section 4.01(m)(iii).


 


“Option Shares” means the shares of
Company Stock subject to the letter dated August 28, 2006 from the general
partner of Heyman Investment Associates Limited Partnership, to the chief
executive officer of BMCA.


 


“Other Taxes” has the
meaning specified in Section 2.10(b).


 


“Parent” means G-I
Holdings so long as it owns, and any other Person that acquires or owns,
directly or indirectly, 80% or more of the Voting Interests of BMCA.


 


“PBGC” means the
Pension Benefit Guaranty Corporation (or any successor).


 


“Permitted Acquisitions”
has the meaning specified in Section 5.02(f)(vii).


 


“Permitted Encumbrances”
has the meaning specified in the Mortgages.


 


“Permitted Holders”
means (a) Samuel J. Heyman, his heirs, administrators, executors and
entities of which a majority of the Voting Interests is owned by Samuel J.
Heyman, his heirs, administrators or executors and (b) any Person
controlled, directly or indirectly, by Samuel J. Heyman or his heirs,
administrators or executors.


 


19

















 


“Permitted Liens”
means such of the following as to which no enforcement, collection, execution,
levy or foreclosure proceeding shall have been commenced:  (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid under
Section 5.01(b); (b) Liens imposed by operation of law, such as
materialmen’s, mechanics’, carriers’, workmen’s and repairmen’s Liens and other
similar Liens arising in the ordinary course of business securing obligations
that (i) are not overdue for a period of more than 30 days, and
(ii) are being contested in good faith by appropriate proceedings and with
respect to which appropriate reserves have been established in accordance with
GAAP; (c) pledges or deposits to secure obligations under workers’
compensation laws, employment insurance or other social security obligations or
similar legislation or to secure public or statutory obligations, appeal bonds,
performance bonds or other obligations of a like nature; (d) Permitted
Encumbrances; (e) easements, rights of way and other encumbrances on title
to real property that were not incurred in connection with and do not secure
Debt and do not render title to the property encumbered thereby uninsurable or
materially adversely affect the use of such property for its intended purposes;
(f) financing statements with respect to lessor’s rights or interests in
and to the personal property leased to such Person in the ordinary course of
such Person’s business other than through a Capitalized Lease; (g) Liens
arising out of judgments or decrees which are being contested in good faith,
provided that enforcement of such Liens is stayed pending such contest;
(h) broker’s liens securing the payment of commissions and management fees
in the ordinary course of business; (i) Liens arising solely from the
filing of UCC financing statements for precautionary purposes in connection
with leases or conditional sales of property that are otherwise permitted under
the Loan Documents; (j) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of non-delinquent customs duties
in connection with the importation of goods; (k) leases or subleases
granted to others not interfering in any material respect with the business of BMCA
and its Subsidiaries, taken as a whole; (l) Liens encumbering deposits
made in the ordinary course of business to secure obligations arising from
statutory, regulatory, contractual or warranty requirements of BMCA or any of
its Subsidiaries for which a reserve or other appropriate provision, if any, as
shall be required by GAAP shall have been made.


 


“Person” means an
individual, partnership, corporation (including a business trust), limited
liability company, joint stock company, trust, unincorporated association,
joint venture or other entity, or a government or any political subdivision or
agency thereof.


 


“Plan” means a Single
Employer Plan or a Multiple Employer Plan.


 


“Pledged Debt” has the
meaning specified in the Security Agreement.


 


“Pledged Equity Interests” has the
meaning specified in the Security Agreement.


 


“Preferred Interests”
means, with respect to any Person, Equity Interests issued by such Person that
are entitled to a preference or priority over any other Equity Interests issued
by such Person upon any distribution of such Person’s property and assets,
whether by dividend or upon liquidation.


 


20

















 


“Prepayment Date”
means with respect to any cash receipts from a transaction described in the
definition of “Net Cash Proceeds”, the third Business Day following the date of
the receipt of such Net Cash Proceeds by any Loan Party or any of its
Subsidiaries.


 


“Prime Lending Rate” means the rate
which the Administrative Agent announces from time to time as its prime lending
rate, the Prime Lending Rate to change when and as such prime lending rate
changes. The Prime Lending Rate is a reference rate and does not necessarily
represent the lowest or best rate actually charged to any customer by the
Administrative Agent, which may make commercial loans or other loans at rates
of interest at above or below the Prime Lending Rate.


 


“Properties” means
those properties listed on Schedules 4.01(r)(1) and 4.01(q) hereto.


 


“Pro Rata Share” of
any amount means, with respect to any Lender at any time, the product of such
amount times a fraction the
numerator of which is the outstanding principal amount of such Lender’s Loans
at such time and the denominator of which is the aggregate outstanding
principal amount of Loans by all Lenders at such time.


 


“Recourse Subsidiaries” of any Person means all
Subsidiaries of such Person other than Non-Recourse Subsidiaries of such
Person.


 


“Redeemable” means,
with respect to any Equity Interest, any Debt or any other right or Obligation,
any such Equity Interest, Debt, right or Obligation that (a) the issuer
has undertaken to redeem at a fixed or determinable date or dates, whether by
operation of a sinking fund or otherwise, or upon the occurrence of a condition
not solely within the control of the issuer or (b) is redeemable at the
option of the holder.


 


“Register” has the
meaning specified in Section 8.07(d).


 


“Regulation D” means Regulation D of
the Board of Governors of the Federal Reserve System as from time to time in
effect and any successor to all or a portion thereof establishing reserve
requirements.


 


“Regulation U” means
Regulation U of the Board of Governors of the Federal Reserve System, as
in effect from time to time.


 


“Related
Documents” means the Merger Agreement and the Tax
Agreement.


 


“Required Lenders”
means, at any time, Lenders owed or holding at least a majority in interest of
the aggregate principal amount of the Loans outstanding at such time.


 


“Responsible Financial Officer”
means the Chief Financial Officer, Treasurer, and/or Controller (so long as
such Person is also a Responsible Officer of any Loan Party or any of its
Subsidiaries).


 


21

















 


“Responsible Officer”
means any officer of any Loan Party or any of its Subsidiaries.


 


“Restricted Investment” means, with respect to
BMCA or any of its Subsidiaries, an Investment by such Person in an Affiliate
of BMCA; provided that the following shall not be
Restricted Investments:  (i) Investments
in BMCA or in any of its Subsidiaries and (ii) Investments permitted by clauses
(i), (ii)(x), (iii), (iv), (v), (vi), (vii) and (viii) of Section 5.02(f).


 


“Restricted Payment” means (i) the declaration or
making of any dividend or of any other payment or distribution (other than
dividends, payments or distributions payable solely in shares of BMCA’s Equity
Interests other than Redeemable Equity Interests) on or with respect to BMCA’s
Equity Interests (other than Redeemable Equity Interests); and (ii) any payment
on account of the purchase, redemption, retirement or other acquisition for
value of BMCA’s Equity Interests (other than Redeemable Equity Interests).


 


“Revolving Credit Facility”
has the meaning specified in the preliminary statements to this Agreement.


 


“Rhone Poulenc Transactions”
means the factual elements and events involved in or otherwise related to the
formation of Rhone-Poulenc Surfactants and Specialties, L.P. (“RPSS”) in 1990, the
contributions thereto and operation thereof, the dissolution, liquidation, and
distribution of RPSS assets in 1999 and the pledge of those assets by one or
more members of the G-I Holdings Tax Group, in each case as further described
in the documents either (i) docketed at Docket Numbers 1028 and 1383 on the
docket of the cases pending in the United States Bankruptcy Court for the
District of New Jersey under the jointly administered Case No. 01-30135 (RG) or
(ii) filed with the court in connection with the case currently pending in the United
States District Court for the District of New Jersey, Case No. 02-CV-03082
(WGB).


 


“Rollover Date” has the meaning
specified in Section 2.03(b).


 


“Rollover Fee” has the meaning
specified in Section 2.07(c).


 


“Rollover Loan” has
the meaning specified in Section 2.03(b).


 


“Rollover Note” means
a promissory note of the Borrowers payable to the order of any Lender, in
substantially the form of Exhibit A-2 hereto, evidencing the indebtedness of
the Borrowers to such Lender resulting from the Rollover Loan held by such
Lender.


 


“Secured Parties”
means the Agents, the Lenders, and each other secured party specified in the
Collateral Documents as such.


 


“Security Agreement”
means the Security Agreement referred to in Section 3.01(a)(iv), by and
among BMCA, each of the other Grantors party thereto and the Collateral Agent, as
amended, supplemented or otherwise modified from time to time.


 


22
















 


“Senior Notes” means the notes in an
aggregate principal amount not less than $325,000,000 to be issued pursuant to
the Senior Notes Indenture.


 


“Senior Notes Indenture” means an
Indenture pursuant to which BMCA or any Subsidiary thereof may issue senior notes,
the net proceeds of which will be used to fully refinance this Agreement and as
otherwise permitted hereunder, which indenture will not require the issuer
thereof to make any amortization payments on any date prior to any date earlier
than eight years after the Closing Date, and will otherwise contain terms
consistent with the terms set forth in the letter agreement dated January 26,
2007, among the Borrowers, Deutsche Bank AG Cayman Islands Branch, Deutsche
Bank Securities, Inc., Bear Stearns Corporate Lending Inc. and Bear Stearns
& Co. Inc., relating to the Senior Notes.


 


“Single Employer Plan”
means a single employer plan, as defined in Section 4001(a)(15) of ERISA,
that (a) is maintained for employees of any Loan Party or any ERISA
Affiliate and no Person other than the Loan Parties and the ERISA Affiliates or
(b) was so maintained and in respect of which any Loan Party or any ERISA
Affiliate could have liability under Section 4069 of ERISA in the event
such plan has been or were to be terminated.


 


“Solvent” and “Solvency” mean, with
respect to any Person on a particular date, that as of such date (a) the
fair value of the property of such Person is greater than the total amount of
liabilities, including contingent liabilities, of such Person, (b) the
present fair salable value of the assets of such Person is not less than the
amount that will be required to pay the probable liability of such Person on
its debts as they become absolute and matured, (c) such Person does not
intend to, and does not believe that it will, incur debts or liabilities beyond
such Person’s ability to pay such debts and liabilities as they mature and
(d) such Person is not engaged in business or a transaction, and is not
about to engage in business or a transaction, for which such Person’s property
would constitute an unreasonably small capital. The amount of contingent
liabilities at any time shall be computed as the amount that, in the light of
all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability.


 


“S&P” means
Standard & Poor’s, a division of the McGraw Hill Companies, Inc.


 


“Specified Representations”
has the meaning specified in Section 3.01(i).


 


“Stated Maturity”
means, when used with respect to any Debt, the date specified in the instrument
governing such Debt as the fixed date on which the principal of such Debt or
any installment of interest is due and payable.


 


“Subordinated Debt”
means any Debt of any Loan Party that is (i) subordinated to the Obligations of
such Loan Party under the Loan Documents (ii) or permitted by Section
5.02(b)(iii)(F) or (J).


 


23

















 


“Subordinated Debt Documents”
means all agreements, indentures and instruments pursuant to which Subordinated
Debt is issued, in each case as amended, to the extent permitted under the Loan
Documents.


 


“Subsidiary” of any
Person means any corporation, partnership, joint venture, limited liability
company, trust or estate of which (or in which) more than 50% of (a) the
issued and outstanding capital stock having ordinary voting power to elect a
majority of the Board of Directors of such corporation (irrespective of whether
at the time capital stock of any other class or classes of such corporation
shall or might have voting power upon the occurrence of any contingency),
(b) the interest in the capital or profits of such partnership, joint
venture or limited liability company or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or controlled
by such Person, by such Person and one or more of its other Subsidiaries or by
one or more of such Person’s other Subsidiaries. Notwithstanding anything to
the contrary in the foregoing, the term “Subsidiary” shall not include any
Non-Recourse Subsidiary or, unless otherwise provided herein, all Non-Material
Subsidiaries.


 


“Supplemental Collateral Agent”
has the meaning specified in Section 7.07 and “Supplemental Collateral
Agents” shall have the corresponding meaning.


 


“Surviving Debt” means
the principal amount of Debt of BMCA and its Subsidiaries as of the Closing
Date outstanding immediately before and after the Closing Date.


 


“Tax Agreement” means
the Tax Sharing Agreement dated as of January 31, 1994, by and among BMCA,
GAF Corporation (a predecessor-in-interest to G-I Holdings), as amended as of
March 19, 2001, and as further amended to the extent permitted under the
Loan Documents.


 


“Taxes” has the
meaning specified in Section 2.10(a).


 


“Tender Offer” has the meaning
specified in the preliminary statements of this Agreement.


 


“Term Loan Facility” has the meaning
specified in the preliminary statements to this Agreement.


 


“Transaction” shall
have the meaning described in the preliminary statements to this Agreement.


 


“Transaction Documents”
means, collectively, the Loan Documents and the Related Documents.


 


“Voting Interests”
means shares of capital stock issued by a corporation, or equivalent Equity
Interests in any other Person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors (or
persons performing similar functions) of such Person, even if the right so to
vote has been suspended by the happening of such a contingency.


 


24

















 


“Welfare Plan” means a
welfare plan, as defined in Section 3(1) of ERISA, that is maintained for
employees of any Loan Party or in respect of which any Loan Party could have
liability.


 


“Wholly-Owned Recourse Subsidiary”
means a Subsidiary of a Person (other than a Non-Recourse Subsidiary) all the
Capital Stock of which (other than directors’ qualifying shares) is owned by
such Person or another Wholly-Owned Recourse Subsidiary of such Person.


 


“Withdrawal Liability”
has the meaning specified in Part I of Subtitle E of Title IV of
ERISA.


 


“2001 Long Term Incentive Plan”
means that certain incentive compensation plan known as the Building Materials
Corporation of America 2001 Long Term Incentive Plan, effective as of December
31, 2000, pursuant to which BMCA grants Incentive Units (as defined therein) to
eligible employees of BMCA and its Subsidiaries.


 


“2007 Notes” has the
meaning specified in the preliminary statements to this Agreement.


 


“2008 Notes” has the
meaning specified in the preliminary statements to this Agreement.


 


“2014 Notes” has the
meaning specified in the preliminary statements to this Agreement.


 


“2014 Notes Indenture” means the
Indenture dated as of July 26, 2004, among BMCA, certain of its subsidiaries
party thereto as guarantors and Wilmington Trust Company, as trustee, pursuant
to which the 2014 Notes were issued, as most recently supplemented by the Fourth
Supplemental Indenture dated as of February 21, 2007 and the Fifth
Supplemental Indenture dated as of February 22, 2007, and as further
amended, supplemented or otherwise modified from time to time.


 


SECTION 1.02.      Computation
of Time Periods; Other Definitional Provisions. In this Agreement and the other
Loan Documents in the computation of periods of time from a specified date to a
later specified date, the word “from”
means “from and including” and the words “to” and “until” each mean “to but excluding”.
References in the Loan Documents to any agreement or contract “as amended” shall mean and be a
reference to such agreement or contract as amended, amended and restated,
supplemented or otherwise modified from time to time in accordance with its
terms. The term “including,” when used in any
Loan Document, means “including, without limitation.”


 


SECTION 1.03.      Accounting
Terms. (a) All accounting terms not specifically defined herein shall be
construed in accordance with generally accepted accounting principles
consistent with those applied in the preparation of the financial statements
referred to in Section 4.01(g) (“GAAP”).


 


(b)           If
any change in the accounting principles used in the preparation of the
financial statements referred to in Section 4.01(g) is hereafter required or
permitted by the rules, regulations, pronouncements and opinions of the
Financial Accounting Standards Board or the American Institute of Certified
Public Accountants (or any successor to


 


25

















 


either
thereof) and such change is adopted by each of the Borrowers with the agreement
of each of the Borrowers’ independent public accountants and results in a
change in any of the calculations required by Section 5.02 or Section 5.04 that
would not have resulted had such accounting change not occurred, the parties
hereto agree to enter into negotiations in order to amend such provisions so as
to equitably reflect such change such that the criteria for evaluating
compliance with such covenants by each of the Borrowers shall be the same after
such change as if such change had not been made; provided, however, that no
change in GAAP that would affect a calculation that measures compliance with
any covenant contained in Section 5.02 or Section 5.04 shall be given effect
until such provisions are amended to reflect such changes in GAAP.


 


SECTION 1.04.      Currency
Equivalents Generally. Any amount specified in this Agreement (other than
in Articles II, VII and VIII) or any of the other Loan Documents to be in U.S.
dollars shall also include the equivalent of such amount in any currency other
than U.S. dollars, such equivalent amount to be determined at the rate of
exchange quoted by DBCA in New York, New York, at the close of business on the
Business Day immediately preceding any date of determination thereof, to prime
banks in New York, New York for the spot purchase in the New York foreign
exchange market of such amount in U.S. dollars with such other currency.


 


ARTICLE II



AMOUNTS AND TERMS OF THE BRIDGE LOANS


 


SECTION 2.01.      The
Bridge Loans. Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make a single loan (a “Bridge
Loan”) to the Borrowers on any Business Day on or before June
30, 2007 in an amount not to exceed such Lender’s Bridge Loan Commitment. The
Bridge Loans shall be made simultaneously by the Lenders ratably according to
their Bridge Loan Commitments. Any Bridge Loan which is repaid or prepaid
cannot be reborrowed.


 


SECTION 2.02.      Making
the Bridge Loans. (a)  The Bridge Loan shall be made on notice, given
not later than 11:00 A.M. (New York time) on the third Business Day
prior to the date of the proposed Bridge Loan Borrowing, by the Borrowers to
the Administrative Agent, which shall give to each Lender prompt notice thereof
by email or facsimile. The notice of a Bridge Loan Borrowing (a “Notice of Borrowing”) shall be by
telephone, confirmed promptly in writing, or by email or facsimile, in
substantially the form of Exhibit B hereto, specifying therein the requested
(i) date of the Bridge Loan Borrowing and (ii) the aggregate
principal amount of the Bridge Loans. Each Lender shall, before 11:00 A.M.
(New York City time) on the date the Bridge Loans are proposed to be made,
make available to the Administrative Agent at the Administrative Agent’s
Account, in same day funds, such Lender’s Bridge Loan in accordance with its Bridge
Loan Commitments. After the Administrative Agent’s receipt of such funds and
upon fulfillment of the applicable conditions set forth in Article III,
the Administrative Agent will make such funds available to the Borrowers by
crediting the Borrowers’ Account. Provided that BMCA has delivered a customary
indemnity letter and that notice of the proposed Bridge Loan Borrowing is
received prior to 9:00 A.M. (New York time) on the date of the proposed Bridge
Loan Borrowing (which shall be a Business Day), the Bridge Loan Borrowing may
be made on such Business Day.


 


26

















 


(b)           The
Notice of Borrowing shall be irrevocable and binding on the Borrowers. The
Borrowers, jointly and severally, agree to indemnify each Lender against any
loss, cost or expense incurred by such Lender as a result of any failure to
fulfill on or before the date specified in such Notice of Borrowing for the Bridge
Loan Borrowing the applicable conditions set forth in Article III,
including any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by such Lender to fund the Bridge Loan to be made by such Lender
when such Bridge Loans, as a result of such failure, are not made on such date.


 


(c)           Unless
the Administrative Agent shall have received notice from a Lender prior to the
date the Bridge Loans are proposed to be made that such Lender will not make
available to the Administrative Agent such Lender’s Bridge Loan, the
Administrative Agent may assume that such Lender has made such Bridge Loan
available to the Administrative Agent on the date of such Bridge Loan Borrowing
in accordance with subsection (a) of this Section 2.02 and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrowers on such date a corresponding amount. If and to the extent that
such Lender shall not have so made its Bridge Loan available to the
Administrative Agent, such Lender and the Borrowers severally agree to repay or
pay to the Administrative Agent forthwith on demand such corresponding amount
and to pay interest thereon, for each day from the date such amount is made
available to the Borrowers until the date such amount is repaid or paid to the
Administrative Agent, at (i) in the case of the Borrowers, the interest
rate applicable at such time under Section 2.06 and (ii) in the case
of such Lender, the Federal Funds Rate. If such Lender shall pay to the
Administrative Agent such corresponding amount, such amount so paid shall
constitute such Lender’s Bridge Loan for all purposes.


 


(d)           The
failure of any Lender to make its Bridge Loan shall not relieve any other
Lender of its obligation, if any, hereunder to make its Bridge Loan on the date
such Bridge Loans are proposed to be made, but no Lender shall be responsible
for the failure of any other Lender to make its Bridge Loan on the date the Bridge
Loans are proposed to be made.


 


SECTION 2.03.      Repayment
of Bridge Loans; Option to Rollover Bridge Loans.


 


(a)           Initial
Maturity Date. The Borrowers, jointly and severally, agree to repay to the
Administrative Agent for the ratable account of the Lenders the aggregate
outstanding principal amount of the Bridge Loans on the earlier of (x) one year
following the initial funding date of the Bridge Loans and (y) the closing date
of the issuance after the date hereof by BMCA of any debt or equity securities
in a capital markets transaction (the “Initial
Maturity Date”).


 


(b)           Rollover
Loans. Subject to the terms and conditions hereof and the satisfaction of
the conditions set forth in Section 2.03(c), each Lender severally agrees that,
if BMCA has failed to issue debt or equity securities referred to in
subsection (a)(y) above in an amount sufficient to repay the Bridge Loans
prior to the date set forth in subsection (a)(x) above and the Bridge Loans of
such Lender have not been repaid on or before such date, the then outstanding
principal amount of such Lender’s Bridge Loan shall automatically be converted
into a senior term loan (a “Rollover
Loan”) to the Borrowers on such date (and if such conversion
occurs, such date shall also be referred to herein as the “Rollover  Date”), in an aggregate


 


27

















 


principal amount equal to the then outstanding principal amount of the
Bridge Loans of such Lender (including any accrued interest thereon not
required to be paid in cash), with a maturity of eight years after the Closing
Date (the “Final Maturity Date”).


 


(c)           Conditions
to Rollover. The conversion of the Bridge Loans to Rollover Loans on the
Rollover Date shall be subject to the following conditions precedent:


 


(i)            No Default
described in Sections 6.01(a), (d) in respect of the payment of any fee payable
by the Borrowers in connection with the Rollover Loans, (e) or (f) shall have
occurred and be continuing; provided, however, that if any such Default
described in Sections 6.01(a), 6.01(d) or 6.01(e) is continuing on the proposed
Rollover Date and is subject to cure during a grace period, each of the
Rollover Date and the Initial Maturity Date shall be deferred until the cure of
such Default within the respective grace period, and if such Default is not
cured by the last day of such grace period, the Bridge Loans shall be due and
payable on such last day; and


 


(ii)           All fees, expenses
and other payments due to the Lenders in connection with such conversion and
owing under the Loan Documents shall have been paid in full in cash.


 


(d)           Exchange
of Rollover Loans for Exchange Notes. (i) 
On any Business Day after the Rollover Date, any Lender may elect to
exchange all or any portion of its Rollover Loan for one or more Exchange Notes
by giving not less than three Business Days’ prior irrevocable written notice
to BMCA, the Administrative Agent and the Exchange Note Trustee specifying the
principal amount of its Rollover Loan to be exchanged (which shall be in a
minimum amount of $10,000,000 and in integral multiples of $1,000 in excess
thereof), the name of the proposed registered holder and, subject to the terms
of the Exchange Note Indenture, the amount of each Exchange Note requested
(each such notice, an “Exchange
Notice”). Any such exchanging Lender shall deliver its Rollover
Note, if any, to the Administrative Agent within three Business Days following
delivery of an Exchange Notice. Rollover Loans exchanged for Exchange Notes
pursuant to this clause (d) shall be deemed repaid and canceled and the
Exchange Notes so issued shall be governed by and construed in accordance with
the provisions of the Exchange Note Indenture.


 


(ii)           Not later than the third Business Day
after delivery of an Exchange Notice:


 


(A)          the Administrative Agent shall deliver
to BMCA any original Rollover Note delivered to it by the exchanging Lender
pursuant to clause (i) above;


 


(B)           BMCA shall cancel each Rollover Note
so delivered to it and, if applicable, the Borrowers shall issue a replacement
Rollover Note to such Lender in an amount equal to the principal amount of such
Lender’s Rollover Loan that is not being exchanged, or the Borrowers shall make
a notation on any surrendered Rollover Note to the effect that a portion of the
Rollover Loan represented thereby has been repaid; and


 


28

















 


(C)           the Borrowers shall deliver the
applicable Exchange Note(s) to the Exchange Note Trustee for authentication and
delivery to the holder or holders thereof specified in the Exchange Notice.


 


(iii)          Each Exchange Note issued pursuant to
this clause (d) shall bear interest at a fixed rate per annum equal to the rate
per annum borne by the Rollover Loans on the date of the Exchange Notice. Accrued
interest on Rollover Loans so exchanged shall be canceled and the Exchange
Notes received in such exchange shall bear interest from and including the most
recent date to which interest has been paid on the Rollover Loans so exchanged.


 


SECTION 2.04.      Reduction
of the Bridge Loan Commitments. The Bridge Loan Facility shall be permanently
reduced on the Closing Date by the amount that the aggregate Bridge Loan
Commitments exceeds the aggregate amount of Bridge Loans made on that Date.


 


SECTION 2.05.      Prepayments.
(a)  Optional. (i) BMCA may, at any time,
upon at least three Business Days’ notice to the Administrative Agent stating
the proposed date and aggregate principal amount of the prepayment, and, if
such notice is given, the Borrowers, jointly and severally, agree to prepay the
outstanding aggregate principal amount of the Bridge Loans in whole or ratably
in part, together with accrued interest thereon to the date of such prepayment;
provided, however,
that to the extent that any portion of the Bridge Loans are prepaid other than
with the proceeds of the Senior Notes, the Borrowers shall pay to the
Administrative Agent for the account of the Lenders on the date of such
prepayment of the Bridge Loans a fee in an amount equal to 1.75% of the
principal amount of the Bridge Loans prepaid on such date;


 


(ii)
BMCA may, at any time, upon at least three Business Days’ notice to the
Administrative Agent stating the proposed date and aggregate principal amount
of the prepayment, and, if such notice is given, the Borrowers, jointly and
severally, agree to prepay the outstanding aggregate principal amount of the
Rollover Loans in whole or ratably in part, plus accrued interest to the date
of such prepayment; provided, however, that at such time as the Rollover Loans bear
interest at the Fixed Rate, (A) such Rollover Loans can only be prepaid in
whole, unless otherwise agreed by all the Lenders, (B) such Rollover Loans
shall not be subject to prepayment prior to the third anniversary of the
Rollover Date and (C) any prepayment of Rollover Loans during the 12-month
periods following the Rollover Date set forth below shall include a prepayment
premium of the amount of such Rollover Loans prepaid equal to the percentage
set forth opposite the respective 12-month period:


 




	
  12-Month Period Following

  Rollover Date

  	
   

  	
  Premium

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  37-48 months

  	
   

  	
  6%

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  49-60 months

  	
   

  	
  3%

  	
   

  






 


(iii)
Each partial prepayment, to the extent permitted, shall be in an aggregate
principal amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof and if any


 


29

















 


prepayment
is made on a date other than the last day of an Interest Period, the Borrowers
shall also pay any amounts owing pursuant to Section 8.04(d);


 


(b)           Mandatory.
(i)  To the extent the Net Cash Proceeds referred to in this
subsection are not applied to repay advances under the Term Loan Facility or
the Revolving Credit Facility, the Borrowers shall, on the applicable
Prepayment Date with respect to Net Cash Proceeds received by any Loan Party
from (A) the sale, lease, transfer or other disposition of any assets of any
Loan Party or any of its Subsidiaries (other than (x) any sale, lease, transfer
or other disposition of assets referred to in clause (i), (ii), (iii), (iv) or
(v) of the definition of Certain Permitted Dispositions and (y) any sale, lease
transfer or other disposition of assets the proceeds of which are reinvested in
other assets used in the operation of the business within 18 months of receipt
of such proceeds), and (B) the incurrence or issuance by any Loan Party or any
of its Subsidiaries of Debt (other than Debt permitted to be incurred or issued
pursuant to Section 5.02(b)) or the issuance by BMCA of any Equity Interests,
prepay an aggregate principal amount of the Loans, in an aggregate amount equal
to the amount of such Net Cash Proceeds, plus accrued and unpaid interest on
the principal amount of the Loans prepaid and any other amounts payable
hereunder with respect thereto. All payments hereunder shall be applied ratably
to the Loans.


 


(ii)           (A) In
the event of any Change of Control, each Lender shall have the right, at such
Lender’s option, to require the Borrowers to repay all or any part (equal to
$1,000 or an integral multiple thereof) of that Lender’s Loans pursuant to a
applicable Change of Control offer on the date (the “Change
Of Control Payment Date”) which is 25 Business Days after the
date of the applicable Change of Control Notice (as defined below) is mailed or
required to be mailed (or such later date as is required by applicable law) at
101% of the principal amount thereof, together with accrued interest thereon to
the Change of Control Payment Date (the “Put Amount”).


 


(B)           BMCA
shall send, by first-class mail, postage prepaid, to the Administrative Agent
and all Lenders, within ten Business Days after the occurrence of each Change
of Control, a notice of the occurrence of such Change of Control (the “Change of Control Notice”),
specifying a date by which a Lender must notify BMCA of such Lender’s intention
to exercise the repayment right hereunder and describing the procedure that
such Lender must follow to exercise such right.


 


Each Change of Control Notice shall state:


 


(1)           that
a Change of Control has occurred, that each Lender has the right to require the
Borrowers to repay all or any part of such Lender’s Loans at a price in cash
equal to their Put Amount and that the Change of Control offer is being made
pursuant to this Section 2.05(b);


 


(2)           the
Change of Control Payment Date;


 


(3)           that
a Lender whose Loans are prepaid only in part will be issued new Notes in an
aggregate principal amount equal to the unpaid portion of its Loans; and


 


(4)           the
circumstances and relevant facts regarding such Change of Control, including
the identity of the purchaser and pro forma financial information.


 


30

















 


On or
before the applicable Change of Control Payment Date, the Borrowers shall pay
to the Administrative Agent funds sufficient to repay all Loans  required to be repaid under this clause (ii),
and upon receipt of such funds, the Administrative Agent shall promptly
thereafter distribute such funds ratably to the respective applicable Lenders.


 


SECTION 2.06.      (i)            Interest. (a)  Scheduled Interest. The Borrowers,
jointly and severally, agree to pay interest on the unpaid principal amount of
the Bridge Loans and the Rollover Loans, as the case may be, from the Closing
Date until such principal amount shall be paid in full, at a rate per annum
equal to Eurodollar Rate plus 4.25% per annum, which interest rate shall
automatically increase by 0.50% per annum on the three (3) month anniversary of
the Closing Date and at the end of each three month period thereafter that the
Bridge Loan or the Rollover Loan, as the case may be, is outstanding; provided, however, that
such interest rate shall not exceed 12% per annum (the “Fixed
Rate”). Interest hereunder shall be paid quarterly in arrears on
the last day of each Interest Period and on the date of payment in full of the
Bridge Loans or the Rollover Loans, as the case may be, provided,
further that at all times the interest
hereunder accrues at the Fixed Rate, interest shall be payable semi-annually on
each June 30 and December 31 and on the date of payment in full of the Bridge
Loans or the Rollover Loans, as the case may be.


 


(b)           Default
Interest. Upon the occurrence and during the continuance of an Event of
Default, the Administrative Agent may, and upon the request of the Required
Lenders shall, require that the Borrowers pay interest (“Default Interest”) on
(i) the outstanding and unpaid principal amount of the Bridge Loan or
Rollover Loan, as the case may be, owing to each Lender, payable in arrears on
the dates referred to in Section 2.06(a), as applicable, or otherwise on
demand, at a rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid on the Bridge Loans or Rollover Loans pursuant to
Section 2.06(a), as applicable, and (ii) to the fullest extent
permitted by applicable law, the amount of any interest, fee or other amount
payable under this Agreement or any other Loan Document to any Agent or any Lender
that is not paid when due, from the date such amount shall be due until such
amount shall be paid in full, payable in arrears on the date such amount shall
be paid in full or otherwise on demand, at a rate per annum equal at all times
to 2% per annum above the rate per annum required to be paid, in the case of
interest, on the Bridge Loans or Rollover Loans on which such interest has
accrued pursuant to Section 2.06(a), as applicable; provided, however,
that following the acceleration of the Bridge Loans or Rollover Loans, or the
giving of notice by the Agent to accelerate the Bridge Loans or Rollover Loans
that has not been revoked or rescinded, pursuant to Section 6.01, Default
Interest shall accrue and be payable hereunder whether or not previously
required by the Administrative Agent.


 


SECTION 2.07.      Fees.
(a)  Commitment Fee. The
Borrowers, jointly and severally, agree to pay to the Administrative Agent for
the ratable account of the Lenders a commitment fee, due and payable upon the
Closing Date, equal to 0.50% of the aggregate Bridge Loan Commitment.


 


(b)           Funding
Fee. On the date of funding of the Bridge Loans (the “Funding Date”), the
Borrowers, jointly and severally, agree to pay to the Administrative Agent for
the ratable account of the Lenders, a fee (the “Funding Fee”), equal to 1.25% of the aggregate principal
amount of the Bridge Loan; provided, however, that, if the Bridge Loans are repaid in full with
the proceeds of the Senior Notes, the Lenders shall refund to the Borrowers


 


31

















 


the
amount of the Funding Fee equal to the product of (x) the Funding Fee paid
pursuant to this clause (b) multiplied by (y) the Applicable Percentage set
forth below opposite the applicable period of days in which such prepayment was
made:


 




	
  Number of Days after the Funding

  Date in Which Prepayment Was Made

  	
   

  	
  Applicable Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  0-30

  	
   

  	
  100%

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  31-90

  	
   

  	
  75%

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  91-150

  	
   

  	
  50%

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  151-210

  	
   

  	
  25%

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Thereafter

  	
   

  	
  0%

  	
   

  






 


(c)           Rollover
Fee. On the Rollover Date, the Borrowers, jointly and severally, agree to
pay to the Administrative Agent for the ratable account of the Lenders, a
rollover fee equal to 1.75% of the aggregate principal amount of the Rollover
Loans then outstanding (the “Rollover
Fee”); provided, however, that, if the Rollover Loans are repaid in full with
the proceeds of the Senior Notes, the Lenders shall refund to the Borrowers the
amount of the Rollover Fee equal to the product of (x) the Rollover Fee paid
pursuant to this clause (c) multiplied by (y) the Applicable Percentage set
forth below opposite the applicable of period of days in which such payment was
made:


 




	
  Number of Days after the Rollover

  Date In Which Payment Was Made

  	
   

  	
  Applicable Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  0-90

  	
   

  	
  75%

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  91-150

  	
   

  	
  50%

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  151-210

  	
   

  	
  25%

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Thereafter

  	
   

  	
  0%

  	
   

  






 


(d)           Agents’
Fees. The Borrowers, jointly and severally, agree to pay to each Agent for
its own account such fees as may from time to time be agreed between the
Borrowers and such Agent.


 


SECTION 2.08.      Increased
Costs, Etc. (a)  If, due to either
(i) the introduction of or any change (other than any change by way of
imposition or increase of reserve requirements included in the Eurodollar Rate
Reserve Percentage) in or in the interpretation of any law or regulation or
(ii) the compliance with any guideline or request from any central bank or
other Governmental Authority (whether or not having the force of law), there
shall be any increase in the cost to any Lender of agreeing


 


32

















 


to make or of making, funding or maintaining
Eurodollar Rate Advances (excluding, for purposes of this Section 2.08,
any such increased costs resulting from (x) Taxes or Other Taxes (as to
which Section 2.10 shall govern) and (y) changes in the basis of
taxation of overall net income or overall gross income by the United States or
by the foreign jurisdiction or state under the laws of which such Lender is
organized or has its Lending Office or any political subdivision thereof), then
the Borrowers shall from time to time, upon demand by such Lender (with a copy
of such demand to the Administrative Agent), pay to the Administrative Agent
for the account of such Lender additional amounts sufficient to compensate such
Lender for such increased cost; provided, however, that the Borrowers shall not be responsible for
costs under this Section 2.08(a) arising more than 120 days prior to
receipt by the Borrowers of the demand from the affected Lender pursuant to
this Section 2.08(a); provided further that
a Lender claiming additional amounts under this Section 2.10(a) agrees to
use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Lending Office if the making
of such a designation would avoid the need for, or reduce the amount of, such
increased cost that may thereafter accrue and would not, in the reasonable
judgment of such Lender, be otherwise disadvantageous to such Lender. A
certificate as to the amount of such increased cost, submitted to the Borrowers
by such Lender, shall be conclusive and binding for all purposes, absent
manifest error.


 


(b)           If,
due to either (i) the introduction of or any change in or in the
interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other Governmental Authority
(whether or not having the force of law), there shall be any increase in the
amount of capital required or expected to be maintained by any Lender or any
corporation controlling such Lender as a result of or based upon the existence
of such Lender’s commitment to lend hereunder and other commitments of such
type (or similar contingent obligations), then, upon demand by such Lender or
such corporation (with a copy of such demand to the Administrative Agent), the
Borrowers, jointly and severally, agree to pay to the Administrative Agent for
the account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender in the light of such
circumstances, to the extent that such Lender reasonably determines such
increase in capital to be allocable to the existence of such Lender’s
commitment to lend; provided, however,  that the Borrowers shall not be
responsible for costs under this Section 2.09(b) arising more than 180
days prior to receipt by the Borrowers of the demand from the affected Lender
pursuant to this Section 2.09(b). A certificate as to such amounts
submitted to the Borrowers by such Lender shall be conclusive and binding for
all purposes, absent manifest error.


 


(c)           If
the Required Lenders notify the Administrative Agent that the Eurodollar Rate
for any Interest Period for such Bridge Loans will not adequately reflect the
cost to such Lenders of making, funding or maintaining their Bridge Loans or
Rollover Loans, as the case may be, for such Interest Period, the
Administrative Agent shall forthwith so notify the Borrowers and the Lenders,
whereupon the interest rate for the Bridge Loan or Rollover Loan, as the case
may be, will automatically, on the last day of the then existing Interest
Period therefor, be determined by the Base Rate and the interest payable on the
Bridge Loan or the Rollover Loan, as the case may be, shall be a rate per annum
equal to the Base Rate in effect from time to time plus the margin then in
effect under Section 2.06(a) minus 1.00% (but in any event not in excess of the
Fixed Rate) until the Administrative Agent shall notify the Borrowers that such
Lenders have determined that the circumstances causing such suspension no
longer exist.


 


33

















 


(d)           Notwithstanding
any other provision of this Agreement, if the introduction of or any change in
or in the interpretation of any law or regulation shall make it unlawful, or
any central bank or other Governmental Authority shall assert that it is
unlawful, for any Lender to perform its obligations hereunder to make Bridge
Loans or to continue to fund or maintain Bridge Loans or Rollover Loans
hereunder, then, on notice thereof and demand therefor by such Lender to the
Borrowers through the Administrative Agent, the obligation of the Lenders to
make Bridge Loans shall be suspended until the Administrative Agent shall
notify the Borrowers that such Lender has determined that the circumstances
causing such suspension no longer exist; provided, however,
that, before making any such demand, such Lender agrees to use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different office through which to make or maintain
Bridge Loans if the making of such a designation would allow such Lender to
continue to perform its obligations to make Bridge Loans or to continue to fund
or maintain Bridge Loans and Rollover Loans and would not, in the judgment of
such Lender, be otherwise disadvantageous to such Lender.


 


(e)           In
the event that any Lender demands payment of costs or additional amounts
pursuant to Section 2.08 or Section 2.10 or asserts, pursuant to
Section 2.08(d), that it is unlawful for such Lender to make Bridge Loans
or Rollover Loans, as the case may be, or becomes a Defaulting Lender then
(subject to such Lender’s right to rescind such demand or assertion within 10
days after the notice from the Borrowers referred to below) the Borrowers may,
upon 20 days’ prior written notice to such Lender and the Administrative Agent,
elect to cause such Lender to assign its Bridge Loans and Bridge Loan Commitments
in full to one or more Persons selected by the Borrowers so long as
(a) each such Person satisfies the criteria of an Eligible Assignee and is
reasonably satisfactory to the Administrative Agent, (b) such Lender
receives payment in full in cash of the outstanding principal amount of all Bridge
Loans or Rollover Loans, as the case may be made by it and all accrued and
unpaid interest thereon and all other amounts due and payable to such Lender as
of the date of such assignment (including amounts owing pursuant to Sections
2.08, 2.10, 2.13 and 8.04) and (c) each such Lender assignee agrees to accept
such assignment and to assume all obligations of such Lender assignor hereunder
in accordance with Section 8.07.


 


SECTION 2.09.      Payments
and Computations. (a)  The Borrowers,
jointly and severally, agree to make each payment hereunder and under the
Notes, irrespective of any right of counterclaim or set-off, not later than
12:30 P.M. (New York City time) on the day when due in U.S. dollars
to the Administrative Agent at the Administrative Agent’s Account in same day
funds, with payments being received by the Administrative Agent after such time
being deemed to have been received on the next succeeding Business Day. The
Administrative Agent will promptly thereafter cause like funds to be
distributed (i) if such payment by the Borrowers is in respect of
principal, interest, commitment fees or any other Obligation then payable
hereunder and under the Notes to more than one Lender, to such Lenders ratably
in accordance with the amounts of such respective Obligations then payable to
such Lenders and (ii) if such payment by the Borrowers is in respect of
any Obligation then payable hereunder to one Lender, to such Lender, in each
case to be applied in accordance with the terms of this Agreement. Upon its
acceptance of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 8.07(d), from and
after the effective date of such Assignment and Acceptance, the Administrative
Agent shall make all payments hereunder and under the Notes in respect of the
interest assigned thereby to the Lender assignee thereunder, and the parties to
such


 


34

















 


Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly
between themselves.


 


(b)           The
Borrowers hereby authorize each Lender and each of its Affiliates, if and to
the extent payment owed to such Lender is not made when due hereunder or, in
the case of a Lender, under the Note held by such Lender, to charge from time
to time, to the fullest extent permitted by law, against any or all of the
Borrowers’ accounts with such Lender or such Affiliate any amount so due.


 


(c)           All
computations of interest determined by the Eurodollar Rate and fees shall be
made by the Administrative Agent on the basis of a year of 360 days and all
computations of interest determined by the Base Rate shall be made by the
Administrative Agent on the basis of a year of 365/366 days, as the case may be,
and in each case for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest, fees
or commissions are payable. Each determination by the Administrative Agent of
an interest rate or fee hereunder shall be conclusive and binding for all
purposes, absent manifest error.


 


(d)           Whenever
any payment hereunder or under the Notes shall be stated to be due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest or commitment fee, as the case may be; provided, however, that,
if such extension would cause payment of interest on or principal of the Bridge
Loans or Rollover Loans, as the case may be, to be made in the next following
calendar month, such payment shall be made on the next preceding Business Day.


 


(e)           Unless the Administrative Agent shall
have received notice from the Borrowers prior to the date on which any payment
is due to any Lender hereunder that the Borrowers will not make such payment in
full, the Administrative Agent may assume that the Borrowers have made such
payment in full to the Administrative Agent on such date and the Administrative
Agent may, in reliance upon such assumption, cause to be distributed to each
such Lender on such due date an amount equal to the amount then due such Lender.
If and to the extent the Borrowers shall not have so made such payment in full
to the Administrative Agent, each such Lender shall repay to the Administrative
Agent forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.


 


(f)            Whenever
any payment received by the Administrative Agent under this Agreement or any of
the other Loan Documents is insufficient to pay in full all amounts due and
payable to the Agents and the Lenders under or in respect of this Agreement and
the other Loan Documents on any date, such payment shall be distributed by the
Administrative Agent and applied by the Agents and the Lenders in the following
order of priority:


 


(i)            first, to the payment of all of the fees,
indemnification payments, costs and expenses that are due and payable to the
Agents (solely in their respective capacities as


 


35

















 


Agents) under
or in respect of this Agreement and the other Loan Documents on such date,
ratably based upon the respective aggregate amounts of all such fees,
indemnification payments, costs and expenses owing to the Agents on such date;


 


(ii)           second, to the payment of all of the
indemnification payments, costs and expenses that are due and payable to the
Lenders under Sections 8.04 hereof and any similar section of any of the
other Loan Documents on such date, ratably based upon the respective aggregate
amounts of all such indemnification payments, costs and expenses owing to the
Lenders on such date;


 


(iii)          third, to the payment of all of the amounts that are due and
payable to the Administrative Agent and the Lenders under Sections 2.08 and 2.10
hereof on such date, ratably based upon the respective aggregate amounts
thereof owing to the Administrative Agent and the Lenders on such date;


 


(iv)          fourth, to the payment of all of the fees and accrued and
unpaid interest on the Obligations of the Borrowers under or in respect of the
Loan Documents that is due and payable to the Administrative Agent and the
Lenders under Section 2.06(b) or 2.07 on such date, ratably based upon the
respective aggregate amounts of all such interest owing to the Administrative
Agent and the Lenders on such date;


 


(v)           fifth, to the payment of all of the accrued and unpaid
interest on the Loans that is due and payable to the Administrative Agent and
the Lenders under Section 2.06(a) on such date, ratably based upon the
respective aggregate amounts of all such interest owing to the Administrative
Agent and the Lenders on such date;


 


(vi)          sixth, to the payment of the principal
amount of all of the outstanding Loans that is due and payable to the
Administrative Agent and the Lenders on such date, ratably based upon the
respective aggregate amounts of all such principal owing to the Administrative
Agent and the Lenders on such date; and


 


(vii)         seventh, to the payment of all other Obligations of the Loan
Parties owing under or in respect of the Loan Documents or are secured pursuant
to the Collateral Documents that are due and payable to the Administrative
Agent and the Lenders on such date, ratably based upon the respective aggregate
amounts of all such Obligations owing to the Administrative Agent and the Lenders
on such date.


 


SECTION 2.10.      Taxes. (a) 
Any and all payments by any Loan Party to or for the account of any
Lender or any Agent hereunder or under the Notes or any other Loan Document
shall be made, in accordance with Section 2.09 or the applicable
provisions of such other Loan Document, if any, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto, excluding, in the case of each Lender and each Agent, taxes
that are imposed on its overall net income by the United States and taxes that
are imposed on its overall net income (and franchise taxes imposed in lieu
thereof) by the state or foreign jurisdiction under the laws of which such Lender
or such Agent, as the case may be, is organized or any political subdivision
thereof and, in the case of each Lender, taxes that are imposed on its overall
net income (and franchise taxes imposed in lieu thereof) by the


 


36

















 


state or foreign jurisdiction of such Lender’s Lending
Office or any political subdivision thereof (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities in respect
of payments hereunder or under the Notes being hereinafter referred to as “Taxes”). If any Loan Party shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note or any other Loan Document to any Lender or any
Agent, (i) the sum payable by the Borrowers shall be increased as may be
necessary so that after such Loan Party and the Administrative Agent have made
all required deductions (including deductions applicable to additional sums
payable under this Section 2.10) such Lender or such Agent, as the case
may be, receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Loan Party shall make all such deductions
and (iii) such Loan Party shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law.


 


(b)           In
addition, a Loan Party shall pay any present or future stamp, documentary,
excise, property, intangible, mortgage recording or similar taxes, charges or
levies that arise from any payment made by such Loan Party hereunder or under
any Notes or any other Loan Documents or from the execution, delivery or
registration of, performance under, or otherwise with respect to, this
Agreement, the Notes or the other Loan Documents (hereinafter referred to as “Other Taxes”).


 


(c)           The
Loan Parties shall indemnify each Lender and each Agent for and hold them
harmless against the full amount of Taxes and Other Taxes, and for the full
amount of taxes of any kind imposed or asserted by any jurisdiction on amounts
payable under this Section 2.10, imposed on or paid by such Lender or such
Agent (as the case may be) and any liability (including penalties, additions to
tax, interest and expenses) arising therefrom or with respect thereto. This
indemnification shall be made within 30 days from the date such Lender or such
Agent (as the case may be) makes written demand setting forth in reasonable
detail its claim and the basis for indemnification hereunder.


 


(d)           Within
30 days after the date of any payment of Taxes, the appropriate Loan Party
shall furnish to the Administrative Agent, at its address referred to in
Section 8.02, the original or a certified copy of a receipt evidencing
such payment, to the extent such a receipt is issued therefor, or other written
proof of payment thereof that is reasonably satisfactory to the Administrative
Agent. In the case of any payment hereunder or under the Notes or the other
Loan Documents by or on behalf of a Loan Party through an account or branch
outside the United States or by a payor that is not a United States person, if
such Loan Party determines that no Taxes are payable in respect thereof, such
Loan Party shall furnish, or shall cause such payor to furnish, to the
Administrative Agent, at such address, an opinion of counsel acceptable to the Administrative
Agent stating that such payment is exempt from Taxes.


 


(e)           Each
Lender organized under the laws of a jurisdiction outside the United States
shall, on or prior to the date of its execution and delivery of this Agreement
in the case of each Initial Lender and on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender in the case of each other Lender,
and from time to time thereafter as reasonably requested in writing by the
Borrowers (but only so long thereafter as such Lender remains lawfully able to
do so), provide each of the Administrative Agent and the Borrowers with two
original Internal Revenue Service Forms W-8BEN or W-8ECI (or in the case
of a


 


37

















 


Lender that has certified in writing to the
Administrative Agent that it is not (i) a “bank” (as defined in
Section 881(c)(3)(A) of the Internal Revenue Code), (ii) a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Internal
Revenue Code) of the Borrowers or (iii) a controlled foreign corporation
related to the Borrowers (within the meaning of Section 864(d)(4) of the
Internal Revenue Code), Internal Revenue Service Form W-8BEN), as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, certifying that such Lender is exempt from or entitled to a reduced
rate of United States withholding tax on payments pursuant to this Agreement or
the Notes or any other Loan Document or, in the case of a Lender that has
certified that it is not a “bank” as described above, certifying that such Lender
is a foreign corporation, partnership, estate or trust entitled to exemption
from withholding as portfolio interest under Section 871(h) or 881(c) of
the Internal Revenue Code. If the forms provided by a Lender at the time such Lender
first becomes a party to this Agreement indicate a United States interest
withholding tax rate in excess of zero, withholding tax at such rate shall be
considered excluded from Taxes unless and until such Lender provides the
appropriate forms certifying that a lesser rate applies, whereupon withholding
tax at such lesser rate only shall be considered excluded from Taxes for
periods governed by such forms; provided,
however, that if, at the
effective date of the Assignment and Acceptance pursuant to which a Lender
becomes a party to this Agreement, the Lender assignor was entitled to payments
under subsection (a) of this Section 2.12 in respect of United States
withholding tax with respect to interest paid at such date, then, to such
extent, the term Taxes shall include (in addition to withholding taxes that may
be imposed in the future or other amounts otherwise includable in Taxes) United
States withholding tax, if any, applicable with respect to the Lender assignee
on such date. If any form or document referred to in this subsection (e)
requires the disclosure of information, other than information necessary to
compute the tax payable and information required on the date hereof by Internal
Revenue Service Form W-8BEN or W-8EC1 or the related certificate described
above, that the applicable Lender reasonably considers to be confidential, such
Lender shall give notice thereof to the Borrowers and shall not be obligated to
include in such form or document such confidential information. For purposes of
subsections (d) and (e) of this Section 2.10, the terms “United States” and “United States
person”
shall have the meanings specified in Section 7701 of the Internal Revenue
Code.


 


(f)            For
any period with respect to which a Lender has failed to provide the Borrowers
with the appropriate form, certificate or other document described in
subsection (e) above (other than
if such failure is due to a change in law, or in the interpretation or
application thereof, occurring after the date on which a form, certificate or
other document originally was required to be provided or if such form,
certificate or other document otherwise is not required under
subsection (e) above), such Lender shall not be entitled to
indemnification under subsection (a) or (c) of this Section 2.10 with
respect to Taxes imposed by the United States by reason of such failure; provided,
however, that should a Lender become subject to Taxes because of its
failure to deliver a form, certificate or other document required hereunder,
the Loan Parties shall take such steps as such Lender shall reasonably request
to assist such Lender to recover such Taxes.


 


(g)           Without
prejudice to the survival of any other agreement contained herein, the
agreements and obligations contained in this Section 2.10 shall survive
the payment in full of the principal and of interest on all Bridge Loans made
hereunder.


 


38

















 


(h)           Notwithstanding
anything to the contrary in this Section 2.10, any Lender claiming any
additional amounts payable pursuant to this Section 2.10  shall use its reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Lending Office if the making of such a change would avoid
the need for, or reduce the amount of, any such additional amounts that would
be payable or may thereafter accrue and would not, in the sole determination of
such Lender, be otherwise disadvantageous to such Lender.


 


(i)            If
BMCA determines in good faith that substantial authority exists for
successfully contesting any Taxes paid or otherwise indemnified against under
Section 2.10(c), and so long as the Borrowers, jointly and severally, agree in
writing to indemnify the relevant Lender, the Administrative Agent or any other
Agent against any damages or costs in connection with such contest, the
relevant Lender, the Administrative Agent or any other Agent, as applicable,
shall cooperate with the Borrowers in challenging such Taxes at the Borrowers’
expense, if so requested by the Borrowers, unless the relevant Lender, the
Administrative Agent or other Agent, as the case may be, determines in its
discretion that it would be adversely affected by such contest. If any Lender,
the Administrative Agent or any other Agent, as applicable, receives a refund
of a Tax previously paid by the Borrowers or otherwise indemnified against
under Section 2.10(c), which refund in the good faith judgment of such Lender,
the Administrative Agent or such other Agent, as the case may be, is
attributable to such payment made by the Borrowers, then the Lender, the
Administrative Agent or other Agent, as the case may be, shall reimburse the
Borrowers for such amount (together with any interest received thereon) as the
Lender, the Administrative Agent or other Agent, as the case may be, determines
to be the proportion of the refund as will leave it, after such reimbursement,
in no better or worse position (taking into account expenses or any Taxes
imposed on the refund) than it would have been in if the payment had not been
required, provided, however, that any such
reimbursement shall be made only after such refund has been finally determined
and cannot be adjusted and the Borrowers shall return such refund to such
Lender or Agent if erroneously made or otherwise changed. At the expense of the
Borrowers, the Lender, an Administrative Agent or other Agent shall claim any
refund involving a Tax against which it is indemnified by the Borrowers that
such Lender or Agent determines is available to it, unless such Lender or Agent
concludes in its discretion that it would be adversely affected by making such
a claim. The agreements in this clause (i) shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.


 


SECTION 2.11.      Sharing of Payments, Etc. If any Lender
shall obtain at any time any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise, other than as a result of an
assignment pursuant to Section 8.07) (a) on account of Obligations
due and payable to such Lender hereunder and under the other Loan Documents at
such time in excess of its ratable share (according to the proportion of
(i) the amount of such Obligations due and payable to such Lender at such
time to (ii) the aggregate amount of the Obligations due and payable to
all Lenders hereunder and under the other Loan Documents at such time) of
payments on account of the Obligations due and payable to all Lenders hereunder
and under the Notes at such time obtained by all the Lenders at such time or
(b) on account of Obligations owing (but not due and payable) to such Lender
hereunder and under the Notes and the other Loan Documents at such time in
excess of its ratable share (according to the proportion of (i) the amount
of such Obligations owing to such Lender at such time to (ii) the
aggregate amount of the Obligations


 


39

















 


owing (but not due and payable) to all Lenders
hereunder and under the Notes and the other Loan Documents at such time) of
payments on account of the Obligations owing (but not due and payable) to all Lenders
hereunder and under the Notes at such time obtained by all of the Lenders at
such time, such Lender shall forthwith purchase from the other Lenders such
interests or participating interests in the Obligations due and payable or
owing to them, as the case may be, as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each of them; provided, however, that
if all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each other Lender shall be rescinded and
such other Lender shall repay to the purchasing Lender the purchase price to
the extent of such Lender’s ratable share (according to the proportion of
(i) the purchase price paid to such Lender to (ii) the aggregate
purchase price paid to all Lenders) of such recovery together with an amount
equal to such Lender’s ratable share (according to the proportion of
(i) the amount of such other Lender’s required repayment to (ii) the
total amount so recovered from the purchasing Lender) of any interest or other
amount paid or payable by the purchasing Lender in respect of the total amount
so recovered. The Borrowers agree that any Lender so purchasing an interest or
participating interest from another Lender pursuant to this Section 2.11
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such interest or participating
interest, as the case may be, as fully as if such Lender were the direct
creditor of the Borrowers in the amount of such interest or participating
interest, as the case may be. No exchange of a Rollover Loan for an Exchange
Note pursuant to Section 2.03(d) shall be deemed to be a payment on account of
such Rollover Loan for purposes of this Section 2.11, and no Lender shall be
obligated under this Section 2.11 to share any payment in respect of any
Rollover Loan with any holder of an Exchange Note in its capacity as such.


 


SECTION 2.12.      Use of Proceeds. The proceeds of the Bridge
Loans shall be available solely to (i) finance, in part, the Tender Offer
and the Transaction and (ii) pay fees and expenses in connection with the
Transaction.


 


SECTION 2.13.      Evidence of Debt. (a)  Each Lender shall maintain in accordance with
its usual practice an account or accounts evidencing the indebtedness of the
Borrowers to such Lender resulting from each Bridge Loan or Rollover Loan, as
the case may be, owing to such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder. The Borrowers agree that upon notice by any Lender to the Borrowers
(with a copy of such notice to the Administrative Agent) to the effect that a
promissory note or other evidence of indebtedness is required or appropriate in
order for such Lender to evidence (whether for purposes of pledge, enforcement
or otherwise) the Bridge Loans or Rollover Loans, as the case may be, owing to,
or to be made by, such Lender, the Borrowers shall promptly execute and deliver
to such Lender, with a copy to the Administrative Agent, a Note, in
substantially the form of Exhibit A-1 or A-2 respectively, payable to the order
of such Lender in a principal amount equal to the Bridge Loan Commitment of
such Lender in the case of an Initial Bridge Lender, or the Bridge Loan or
Rollover Loan, as the case may be, of such Lender, otherwise. All references to
Notes in the Loan Documents shall mean Notes, if any, to the extent issued
hereunder.


 


(b)           The
Register maintained by the Administrative Agent pursuant to Section 8.07(d)
shall include a control account, and a subsidiary account for each Lender, in


 


40

















 


which
accounts (taken together) shall be recorded (i) the date and amount of
each Loan made hereunder, (ii) the terms of each Assignment and Acceptance
delivered to and accepted by it, (iii) the amount of any principal or
interest due and payable or to become due and payable from the Borrowers to
each Lender hereunder, and (iv) the amount of any sum received by the
Administrative Agent from the Borrowers hereunder and each Lender’s share
thereof.


 


(c)           Entries
made in good faith by the Administrative Agent in the Register pursuant to
subsection (b) above, and by each Lender in its account or accounts
pursuant to subsection (a) above, shall be prima facie evidence of the amount of principal and interest
due and payable or to become due and payable from the Borrowers to, in the case
of the Register, each Lender and, in the case of such account or accounts, such
Lender, under this Agreement, absent manifest error; provided, however,
that the failure of the Administrative Agent or such Lender to make an entry,
or any finding that an entry is incorrect, in the Register or such account or
accounts shall not limit or otherwise affect the obligations of the Borrowers
under this Agreement.


 


SECTION 2.14. Relationship Among the Borrowers.


 


(a)           Administrative
Borrower. BMCA Acquisition and BMCA Acquisition Sub hereby appoint BMCA,
and BMCA shall act under this Agreement, as the agent, attorney-in-fact and
legal representative of BMCA Acquisition and BMCA Acquisition Sub for all
purposes, including requesting Loans, issuing a Notice of Borrowing or taking
any other action under any Loan Document and receiving account statements and
other notices and communications to the Borrowers (or any of them) from any
Agent or any Lender. Any Agent and the Lenders may rely, and shall be fully
protected in relying, on any Notice of Borrowing, disbursement instruction,
report, information or any other notice or communication made or given by BMCA,
whether in its own name, as Borrowers’ agent, on behalf of BMCA Acquisition and
BMCA Acquisition Sub or on behalf of the Borrowers, and neither any Agent nor
any Lender shall have any obligation to make any inquiry or request any
confirmation from or on behalf of any other Borrower as to the binding effect
on it of any such notice, request, instruction, report, information, other
notice or communications, nor shall the joint and several character of the
Borrowers’ obligations hereunder be affected.


 


(b)           Joint
and Several Obligations. The obligations of the Borrowers pursuant to the
Loan Documents shall be joint and several as provided in the Guaranty. The
Borrowers shall be jointly and severally liable for the payment and performance
of all Obligations and covenants required by this Agreement to be performed by
any of them, including BMCA acting as agent hereunder, and each Borrower shall
be bound by any notices (including Notices of Borrowings, Conversions and
continuations), consents or other actions furnished or taken by such Borrower
or any other Borrower hereunder.


 


(c)           Resignation.
BMCA may resign from acting as the agent for the other Borrowers pursuant to
this Section 2.14 at any time by notifying the Administrative Agent, provided
that such resignation shall not become effective until the earlier of (i) the
appointment by the other Borrowers of another Borrower as successor agent for
such Borrowers hereunder, and acceptance by such Borrower of such appointment
and (ii) the date that is 30 days after delivery of notice by BMCA of its
resignation. At any time that there is no Borrower acting as


 


41

















 


agent hereunder or under any of the Loan Documents, all rights and
obligations of the Borrowers, including the delivery of such notices, requests,
certificates, statements and other documents, permitted to be exercised or
performed by Borrower as such agent on behalf of the Borrowers shall be
performed by the Borrowers in respect of the Loan Documents.


 


ARTICLE III



CONDITIONS OF LENDING


 


SECTION 3.01.      Conditions Precedent. Each of the
following conditions precedent shall be satisfied in order for the Lenders to
make the Bridge Loan Borrowing (and the date on which all such conditions are
satisfied is the “Closing Date”):


 


(a)           The Administrative
Agent shall have received on or before the Closing Date the following, each
dated as of such day (unless otherwise specified), in form and substance
reasonably satisfactory to the Administrative Agent and (except for the Notes)
in sufficient copies for each Lender:


 


(i)            counterparts of this Agreement
executed by each of the parties hereto;


 


(ii)           the Notes payable to the order of the
Lenders to the extent requested by the Lenders pursuant to the terms of
Section 2.13;


 


(iii)          a guaranty in substantially the form
of Exhibit J hereto (the “Guaranty”)
duly executed by BMCA and each domestic Subsidiary of BMCA;


 


(iv)          a security agreement in substantially
the form of Exhibit I hereto (the “Security
Agreement”), duly executed by the Collateral Agent and each Loan
Party, together with:


 


(A)          subject to the terms of the
Intercreditor Agreements, certificates representing the Pledged Equity
Interests referred to therein accompanied by undated stock powers executed in
blank and instruments evidencing the Pledged Debt referred to therein, indorsed
in blank, which have been delivered to the Collateral Agreement Agent;


 


(B)           copies of financing statements in
form appropriate for filing under the Uniform Commercial Code of all
jurisdictions that the Administrative Agent may deem necessary in order to
perfect and protect the first priority liens and security interests created
under the Security Agreement, covering the Collateral described in the Security
Agreement;


 


(C)           the Intellectual Property Security
Agreement duly executed by each Loan Party;


 


(D)          except as provided in Section
5.01(k)(iv), evidence that all other action that the Administrative Agent may
reasonably deem


 


42

















 


necessary in order to perfect and protect the
priority liens and security interests created under the Security Agreement has
been or will be taken (including receipt of duly executed payoff letter and
UCC-3 termination statements in form appropriate for filing);


 


(v)           the Intercreditor Agreements duly
executed by the parties thereto;


 


(vi)          Subject to Section 5.01(k)(iii), deeds
of trust, trust deeds and mortgages in substantially the form of Exhibit E
hereto (with such changes as may be satisfactory to the Administrative Agent
and its counsel to account for local law matters) and covering the properties
listed in part 1 of Schedule 4.01(q) hereto (together with each other deed of
trust, trust deed or mortgage delivered pursuant to Sections 5.01(j) and
5.01(k)(vi), in each case, as amended, the “Mortgages”), duly executed by the appropriate
Loan Party, together with:


 


(A)          evidence that counterparts of the
Mortgages have been duly executed, acknowledged and delivered on or before the
Closing Date and are in form suitable for filing or recording, in all filing or
recording offices that the Administrative Agent may deem necessary in order to
create a valid first and subsisting Lien on the property described therein in
favor of the Collateral Agreement Agent for the benefit of the Secured Parties
and that all applicable filing and recording taxes and fees, if any, have been
paid or a sufficient amount has been collected by the relevant title insurer
referenced in clause (B) below to satisfy the payments thereof;


 


(B)           fully paid American Land Title Association
Lender’s Extended Coverage title insurance policies (the “Mortgage
Policies”) in form and substance, with endorsements and in
amount reasonably acceptable to the Administrative Agent, issued, coinsured and
reinsured by title insurers reasonably acceptable to the Administrative Agent,
insuring the Mortgages to be valid first and subsisting Liens on the property
described therein, free and clear of all defects (including, but not limited
to, mechanics’ and materialmen’s Liens and encumbrances, excepting only the
Permitted Encumbrances, and providing for such other affirmative insurance
(including endorsements for future advances under the Loan Documents and for
mechanics’ and materialmen’s Liens and such coinsurance and direct access
reinsurance as the Administrative Agent may deem necessary;


 


(C)           Existing American Land Title
Association/American Congress on Surveying and Mapping form surveys along with
certificates of no change from BMCA;


 


(D)          evidence of the insurance required by
the terms of the Mortgages; and


 


43

















 


(E)           such other consents, agreements and
confirmations as the Administrative Agent may deem necessary and evidence that
all other actions that the Administrative Agent may deem necessary in order to
create valid first and subsisting Liens on the property described in the
Mortgages has been taken;


 


(vii)         favorable opinions of local counsel for
the Loan Parties in states in which the Properties are located with respect to
the enforceability and perfection of the Mortgages and any related fixture
filings.


 


(viii)        copies of reports in respect of
completed Lien searches (as of a recent date reasonably satisfactory to the
Administrative Agent), listing all effective financing statements that name any
Loan Party as debtor filed in any jurisdiction relevant to the perfection of
the Liens created under the Security Agreement in the Collateral described
therein and owned by such Loan Party;


 


(ix)           certified copies of the resolutions
of the Board of Directors or Board of Managers, as applicable, of each Loan
Party approving this Agreement and each Loan Document to which it is or is to
be a party, and copies of all documents evidencing other necessary corporate or
limited liability company action and governmental and other third party
approvals and consents, if any, with respect to the Transaction and each Loan Document
to which it is or is to be a party;


 


(x)            a copy of a certificate of the
Secretary of State of the jurisdiction of organization of each Loan Party,
dated reasonably near the Closing Date, certifying (A) as to a true and
correct copy of the charter or other constituent document of such Loan Party
and each amendment thereto on file in such Secretary’s office and (B) that
(1) such amendments are the only amendments to such Loan Party’s charter or
other constituent document on file in such Secretary’s office, (2) such
Loan Party has paid all franchise taxes to the date of such certificate and
(3) such Loan Party is duly organized and in good standing or presently
subsisting under the laws of the State of the jurisdiction of its organization;


 


(xi)           a certificate of each Loan Party,
signed on behalf of such Loan Party by its Secretary or any Assistant
Secretary, dated as of the Closing Date (the statements made in which
certificate shall be true on and as of the Closing Date), certifying as to
(A) the absence of any amendments to the relevant certificate of
incorporation or other constituent document as certified by the Secretary of
State’s certificate referred to in Section 3.01(a)(x) since the date of
such Secretary of State’s certificate, (B) a true and correct copy of the
bylaws, if any, of such Loan Party as in effect on the date on which the
resolutions referred to in Section 3.01(a)(ix) were adopted and on the
Closing Date, and (C) the due incorporation and good standing or valid
existence of such Loan Party as a corporation organized under the laws of the
jurisdiction of its incorporation, and


 


44

















 


the absence of any
proceeding for the dissolution or liquidation of such Loan Party;


 


(xii)          [Intentionally Omitted];


 


(xiii)         a certificate of the Secretary or an
Assistant Secretary of each Loan Party certifying the names and true signatures
of the officers of such Loan Party authorized to sign each Loan Document to
which it is or is to be a party and the other documents to be delivered
hereunder and thereunder;


 


(xiv)        copy of the Merger Agreement, duly
executed by the parties thereto, together with all agreements, instruments and
other documents delivered in connection therewith as the Administrative Agent
shall request certified as being true, complete and correct by an officer of
BMCA;


 


(xv)         a certificate, in substantially the
form of Exhibit D, attesting to the Solvency of BMCA and its subsidiaries,
taken as a whole, before and after giving effect to the transactions
contemplated hereunder (and assuming that neither BMCA nor any of its
Subsidiaries is subject to asbestos-related liabilities), from the Chief Financial
Officer of BMCA;


 


(xvi)        evidence of insurance maintained by BMCA
and its respective subsidiaries as required under the Loan Documents, and the Collateral
Agreement Agent shall be named as an additional insured or loss payee under all
insurance policies to be maintained with respect to properties constituting
Collateral;


 


(xvii)       evidence that not less than $245,000,000
in aggregate principal amount of the 2007 Notes and the 2008 Notes shall have
been validly tendered, and not withdrawn, and that holders thereof provided
their consent to, and in accordance with the requirements of, the tender offer
and consent solicitation dated December 20, 2006, and that such notes have been
accepted for payment by BMCA, pursuant to the respective supplemental indenture
to the Existing Indentures and prior to or coincidentally with the Initial Term
Loan Borrowing, such notes will be repaid;


 


(xviii)      a favorable opinion of Weil, Gotshal &
Manges LLP, counsel for the Loan Parties, in substantially the form of
Exhibit G hereto;


 


(xix)         a favorable opinion of Marc J. Kurzman,
the acting General Counsel to BMCA, in substantially the form of Exhibit H
hereto; and


 


45

















 


(xx)          a Form U 1 referred to in Regulation
U.


 


(b)           Prior to or coincidentally
with the Bridge Loan Borrowing, the Tender Offer shall have been consummated in
accordance in all material respects with the documentation therefor after
giving effect to any waivers or amendments to such documentation that
(i) are not materially adverse to the interests of the Lenders or (ii) to
which the Lead Arrangers have given their consent, such consent not to be
unreasonably withheld, conditioned or delayed.


 


(c)           Prior to or
coincidentally with the Bridge Loan Borrowing, BMCA shall have paid all of its
outstanding obligations and terminated the commitments under the Existing
Credit Agreement and all liens granted thereunder shall have been terminated or
authorized to be terminated and taken all other actions such that, after giving
effect to this Agreement, the Tender Offer, the Term Loan Facility and the
Revolving Credit Facility, BMCA and its Subsidiaries shall have no Debt
outstanding other than (A) Debt under this Agreement, (B) Debt under the
Revolving Credit Facility, (C) Debt under the Existing Indentures in an
aggregate amount not in excess $260,000,000, (D) Debt under the Term Loan
Facility and (E) Debt listed on Schedule 4.01(o) or otherwise permitted under
Section 5.02(b).


 


(d)           Prior to or
simultaneously with the Bridge Loan Borrowing, the Borrowers shall have
received not less than $487,500,000 in gross cash proceeds from borrowings
under the Term Loan Facility, which proceeds shall have been used to make
payments in connection with the Transaction and the Revolving Credit Facility
shall be effective.


 


(e)           Appropriate notice
shall have been duly provided in the bankruptcy case of G-I Holdings, Inc.
without any adverse action being take with respect thereto, or if any
objections are made in respect of such notice, the bankruptcy court has issued
an order (which has become final) satisfactory to the Administrative Agent
approving this Agreement as referred to in Section 8.14 and (b) all required
filings in connection with the Transaction shall have been made and all
applicable waiting periods shall have expired without any action being taken by
any competent authority which prevents the consummation of the Transaction. Additionally,
there shall not exist any event or order arising in the bankruptcy case of G-I
Holdings, Inc., prohibiting or imposing materially adverse conditions upon the
Transaction or the transactions contemplated by this Agreement.


 


(f)            All costs, fees,
expenses (including legal fees and expenses) and other compensation
contemplated hereby, payable to the Joint Lead Arrangers and the Lenders or
otherwise payable in respect of the Transaction shall have been paid to the
extent due.


 


(g)           The Borrowers shall
have delivered to the Administrative Agent the Notice of Borrowing for the
Bridge Loan Borrowing.


 


(h)           There has not
occurred any condition or circumstance constituting an Elk Material Adverse
Effect.


 


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(i)            The following
statements shall be true and the Administrative Agent shall have received for
the account of such Lender a certificate signed by a duly authorized officer of
BMCA, dated the date of the Bridge Loan Borrowing, stating that (and each of
the giving of the Notice of Borrowing, and the acceptance by the Borrowers of
the proceeds of the Bridge Loan Borrowing shall constitute a representation and
warranty by BMCA that both on the date of such notice and on the date of the Bridge
Loan Borrowing such statements are true):


 


(i)            the representations and warranties
contained in each Loan Document and in the Merger Agreement are correct in all
material respects on and as of such date, before and immediately after giving
effect to the Bridge Loan Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date, other than any such representations
or warranties that, by their terms, refer to a specific date other than the
date of the Bridge Loan Borrowing, in which case as of such specific date, provided, that the representation and warranty contained in
the Section 4.01(g)(i)(B) shall not be brought down to the date thereof, and provided, further, that the representations and warranties
in the Merger Agreement in respect of Elk and its Subsidiaries, for purposes of
this Section 3.01(i) and Section 4.01, shall be limited to (x) those set forth
in the Merger Agreement as are material to the interests of the Lenders, but
only to the extent that BMCA Acquisition or BMCA Acquisition Sub has the right
to terminate their obligations under the Merger Agreement as a result of a
breach in such representations and (y) the Specified Representations. For
purposes hereof, “Specified Representations”
means the representations and warranties set forth in the Merger Agreement as
to the corporate power and authority of Elk and its Subsidiaries and the execution,
delivery and enforceability by Elk and its Subsidiaries of the Merger Agreement
and documents related thereto;


 


(ii)           no Default has occurred and is
continuing, or would result from the Bridge Loan Borrowing or from the
application of the proceeds therefrom (except with respect to a breach of
representations that are not conditions to funding of the Bridge Loan
Borrowing); and


 


(j)            the Administrative
Agent shall be in its reasonable judgment satisfied that (i) no action adverse
to the validity and enforceability of the liens created in favor of the Collateral
Agent, for the benefit of the Lenders, under the Collateral Documents or the
rights or remedies of the Agents or the Lenders under any of the Loan Documents
has been taken in or in connection with the G-I Holdings bankruptcy proceedings
(it being understood that the filings on June 30, 2003 of the Notice of Appeal
and the brief in support thereof by the Official Committee of Asbestos
Claimants in the G-I Holdings bankruptcy proceedings shall not, solely by
themselves, be deemed to be adverse actions for purposes of this clause (b)) or
(ii) if any such action has been taken, such action has been resolved in a
manner reasonably satisfactory to the Administrative Agent.


 


SECTION 3.02.      Determinations Under Section 3.01. For
purposes of determining compliance with the conditions specified in
Section 3.01, each Lender shall be deemed to have consented to, approved
or accepted or to be satisfied with each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to
the Lenders unless an officer of


 


47

















 


the Administrative Agent responsible for the
transactions contemplated by the Loan Documents shall have received notice from
such Lender prior to the Closing Date specifying its objection thereto.


 


ARTICLE IV



REPRESENTATIONS AND WARRANTIES


 


SECTION 4.01.      Representations and Warranties of the Borrowers.
Each Borrower represents and warrants that the following statements are true
and correct, provided, however, that such
representations and warranties with respect to Elk and its Subsidiaries shall
be limited as set forth in Section 3.01(i):


 


(a)           Corporate Existence. Each Loan
Party and each of its Subsidiaries (i) is a corporation or limited
liability company duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (ii) is duly qualified
and in good standing as a foreign corporation or limited liability company in each
other jurisdiction in which it owns or leases property or in which the conduct
of its business requires it to so qualify or be licensed except where the
failure to so qualify or be licensed could not be reasonably expected to have a
Material Adverse Effect and (iii) has all requisite corporate or limited
liability company power and authority (including all Governmental
Authorizations) to own or lease and operate its properties and to carry on its
business as now conducted and as proposed to be conducted. All of the
outstanding Equity Interests in BMCA have been validly issued, are fully paid
and non-assessable and are owned by BMCA Holdings in the amounts specified on
Schedule 4.01(a) hereto free and clear of all Liens.


 


(b)           Subsidiaries. Set forth on Schedule 4.01(b)
hereto is a complete and accurate list of all Subsidiaries of each Loan Party,
showing as of the date hereof (as to each such Subsidiary) the jurisdiction of
its organization, the number of shares of each class of its authorized Equity
Interests, and the number outstanding on the date hereof and the percentage of
each such class of its Equity Interests owned (directly or indirectly) by such
Loan Party and the number of shares covered by all outstanding options,
warrants, rights of conversion or purchase and similar rights at the date
hereof. All of the outstanding Equity Interests in each Loan Party’s
Subsidiaries have been validly issued, are fully paid and non-assessable and
are owned by such Loan Party or one or more of its Subsidiaries free and clear
of all Liens, except those created under the Collateral Documents and to secure
Debt under the Revolving Credit Facility, the Existing Indentures and the Term
Loan Facility and, when issued, the Senior Notes.


 


(c)           Corporate Power; Authorization.
The execution, delivery and performance by each Loan Party of each Transaction
Document to which it is or is to be a party, and the consummation of the
transactions contemplated hereunder, are within such Loan Party’s powers, have
been duly authorized by all necessary action, and do not (i) contravene
such Loan Party’s charter or bylaws or other constituent documents,
(ii) violate any law, rule, regulation (including Regulation X and
Regulation U of the Board of Governors of the Federal Reserve System), order,
writ, judgment, injunction, decree, determination or award, (iii) conflict
with or result in the breach of, or constitute a default or require any payment
to be made under, any contract, loan agreement, indenture, mortgage, deed of
trust, lease or other instrument binding on or affecting any Loan Party, any of
its Subsidiaries or any of their properties or (iv) except for


 


48
















 


the Liens created under the Loan Documents and to secure Debt under the
Revolving Credit Facility, the Existing Indentures, the Term Loan Facility and
when issued, the Senior Notes, result in or require the creation or imposition
of any Lien upon or with respect to any of the properties of any Loan Party or
any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in
violation of any such law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award or in breach of any such contract, loan
agreement, indenture, mortgage, deed of trust, lease or other instrument, the
violation or breach of which could reasonably be expected to have a Material
Adverse Effect. In making the foregoing representations with respect to
non-contravention with Regulations U and X, the Borrowers are relying on each
Lender having determined that the good faith loan value of the Collateral other
than Margin Stock securing the Bridge Loan made by it is not less than the
amount of such Bridge Loan.


 


(d)           Governmental Authorizations. No
Governmental Authorization, and no notice to or filing with, any Governmental
Authority or any other third party is required for (i) the due execution,
delivery, recordation, filing or performance by any Loan Party of any Loan
Document to which it is or is to be a party, or for the consummation of the
Transaction (except for the filing of a certificate of merger in connection
with the Merger), (ii) the grant by any Loan Party of the Liens granted by
it pursuant to the Collateral Documents, (iii) the perfection or
maintenance of the Liens created under the Collateral Documents (including the
first priority nature thereof (subject to Liens permitted under any Loan
Document)) or (iv) the exercise by any Agent or any Lender of its rights
under the Loan Documents or the remedies in respect of the Collateral pursuant
to the Collateral Documents, except for the authorizations, approvals, actions,
notices and filings which have been duly obtained, taken, given or made on or
prior to the date hereof and are in full force and effect or will be made to
perfect a security interest as contemplated by Sections 3.01(a)(iv) and 5.01(j).
All applicable waiting periods in connection with the Transaction have expired
without any action having been taken by any competent authority restraining,
preventing or imposing materially adverse conditions upon the Transaction or
the rights of the Loan Parties or their Subsidiaries freely to transfer or
otherwise dispose of, or to create any Lien on, any properties now owned or
hereafter acquired by any of them.


 


(e)           Enforceable Obligations. This
Agreement has been, and each other Transaction Document when delivered
hereunder will have been, duly executed and delivered by each Loan Party party
thereto. This Agreement is, and each other Transaction Document when delivered
hereunder will be, the legal, valid and binding obligation of each Loan Party
party thereto, enforceable against such Loan Party in accordance with its
terms.


 


(f)            Litigation. Other than the matters
described on Schedule 4.01(f) hereto (the “Disclosed Litigation”), there is no action, suit,
investigation, litigation or proceeding affecting any Loan Party or any of its
Subsidiaries, including any Environmental Action, pending or to the knowledge
of BMCA, threatened before any Governmental Authority or arbitrator that
(i) could reasonably be expected to have a Material Adverse Effect (other
than the Disclosed Litigation), (ii) as of the Closing Date purports to
affect the legality, validity or enforceability of any Transaction Document or
the consummation of the Transaction or (iii) could reasonably be likely to
materially affect the legality, validity or enforceability of any Loan Document,
and since December 31, 2006, there has been no material adverse change in the
status, or financial effect on any Loan Party or any of its Subsidiaries, of
the Disclosed Litigation from that described on Schedule 4.01(f) hereto.


 


49

















 


(g)           Financial Statements. (i) (A) The
Consolidated balance sheet of BMCA and its Subsidiaries as at December 31, 2006,
and the related Consolidated statement of income and Consolidated statement of
cash flows of BMCA and its Subsidiaries for the Fiscal Year then ended,
accompanied by an unqualified opinion of Ernst & Young LLP, independent
public accountants, copies of which have been furnished to each Lender, fairly
present the Consolidated financial condition of BMCA and its Subsidiaries as at
such date and the Consolidated results of operations of BMCA and its
Subsidiaries for the period ended on such date, all in accordance with GAAP,
and (B) since December 31, 2006, there has been no Material Adverse Change.


 


(ii)           The Consolidated
forecasted balance sheets, statements of income and statements of cash flows of
BMCA and its Subsidiaries delivered to the Lenders in February 2007 and all
other written information in connection therewith, or otherwise required to be
delivered pursuant to Section 5.03 were prepared in good faith on the basis
of the assumptions stated therein, which assumptions were fair in light of the
conditions existing at the time of delivery of such forecasts, and represented,
at the time of delivery, BMCA’s good faith and reasonable estimate of the
future financial performance of BMCA and its Subsidiaries.


 


(iii)          No written
information, exhibit or report delivered or furnished by or on behalf of any
Loan Party to any Agent or any Lender in connection with the negotiation and
syndication of the Loan Documents or pursuant to the terms of the Loan
Documents, including without limitation the Information Memorandum, when
delivered, contained or will contain (when taken together) at the time such
information was or will be delivered or furnished any untrue statement of a material
fact or omitted to state a material fact necessary to make the statements made
therein at the time made not misleading.


 


(iv)          No Borrower is
engaged in the business of extending credit for the purpose of purchasing or
carrying Margin Stock, and except for the purchase of the shares of Elk, no
proceeds of any Bridge Loan will be used to purchase or carry any Margin Stock
or to extend credit to others for the purpose of purchasing or carrying any
Margin Stock.


 


(h)           Investment Company Act; Public
Utility Holding Company Act. Neither any Loan Party nor any of its
Subsidiaries is an “investment company”, or an “affiliated person” of, or “promoter”
or “principal underwriter” for, an “investment company”, as such terms are
defined in the Investment Company Act of 1940, as amended. Neither any Loan
Party nor any of its Subsidiaries is a “holding company”, or a “subsidiary
company” of a “holding company”, or an “affiliate” of a “holding company” or of
a “subsidiary company” of a “holding company”, as such terms are defined in the
Public Utility Holding Company Act of 2005, as amended. Neither the making of
any Loans, nor the application of the proceeds or repayment thereof by the
Borrowers, nor the consummation of the other transactions contemplated by the
Loan Documents, will violate any provision of any such Act or any rule,
regulation or order of the Securities and Exchange Commission thereunder.


 


(i)            No Burdensome Restrictions. Neither
any Loan Party nor any of its Subsidiaries is a party to any indenture, loan or
credit agreement or any lease or other agreement


 


50

















 


or instrument containing restrictions, or subject to any charter or
corporate restriction, that could be reasonably expected to have a Material
Adverse Effect.


 


(j)            Solvency. BMCA and its
Subsidiaries, taken as a whole are Solvent (assuming that neither BMCA nor any
of its Subsidiaries has any liability in respect of asbestos claims).


 


(k)           ERISA Matters. (i)  Set forth on Schedule 4.01(k) hereto, as
of the date hereof, is a complete and accurate list of all Plans and
Multiemployer Plans.


 


(ii)           No ERISA Event has
occurred or is reasonably expected to occur with respect to any Plan that would
result in a material liability.


 


(iii)          Schedule B
(Actuarial Information) to the most recent annual report (Form 5500
Series) for each Plan, copies of which have been filed with the Internal
Revenue Service and furnished to the Lenders, is complete and accurate in all
material respects and fairly presents the funding status of such Plan, and
since the date of such Schedule B there has been no material adverse
change in such funding status.


 


(iv)          Neither any Loan
Party nor any ERISA Affiliate has incurred or is reasonably expected to incur
any material Withdrawal Liability to any Multiemployer Plan which has not been
fully satisfied.


 


(v)           Neither any Loan
Party nor any ERISA Affiliate has been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in reorganization or has
been terminated, within the meaning of Title IV of ERISA, and no such
Multiemployer Plan is reasonably expected to be in reorganization or to be
terminated, within the meaning of Title IV of ERISA except to the extent
such reorganization or termination has not resulted, and is not reasonably
expected to result, in a material liability of any Loan Party or any ERISA
Affiliate.


 


(l)            Environmental
Matters. Except as set forth on Schedule 4.01(l),


 


(i)            The operations and
properties of each Loan Party and each of its Subsidiaries comply in all
material respects with Environmental Laws and Environmental Permits, all past
non-compliance with such Environmental Laws and Environmental Permits has been
resolved or is expected to be resolved without material ongoing obligations or
costs, and, to the knowledge of the Loan Parties, no circumstances exist that
could be reasonably likely to (A) form the basis of an Environmental
Action against any Loan Party or any of its Subsidiaries or any of their
properties that could reasonably be likely to have a Material Adverse Effect or
(B) cause any such property to be subject to any restriction on ownership,
occupancy, use or transferability under any Environmental Law, assuming
continued use of the property for industrial purposes, that could reasonably be
likely to have a Material Adverse Effect.


 


(ii)           None of the
Properties currently or, to the knowledge of the Loan Parties, formerly owned
or operated by any Loan Party or any of its Subsidiaries is listed or proposed
for listing on the NPL or on any analogous foreign, or state list and the
liability


 


51

















 


which such
Loan Party or Subsidiary is reasonably likely to have in respect thereof (net
of insurance proceeds received (or to be received) or indemnification
agreements of the type referred to in clause (iv) below) is in excess of
$37,500,000 in the aggregate (when combined with the liabilities referred to in
clauses (iii), (iv), (v) and (vi) of this Section 4.01(l)).


 


(iii)          None of the
Properties owned or operated by any Loan Party or any of its Subsidiaries is a
treatment, storage or disposal facility requiring a permit under the Resource
Conservation and Recovery Act, 42 U.S.C. §6901 et seq., the regulations thereunder or any state analogue
and the liability which such Loan Party or Subsidiary is reasonably likely to
have in respect thereof (net of insurance proceeds received (or to be received)
or indemnification agreements of the type referred to in clause (iv) below) is
in excess of $37,500,000 in the aggregate (when combined with the liabilities
referred to in clauses (ii), (iv), (v) and (vi) of this Section 4.01(l)).


 


(iv)          There are no facts
or circumstances or conditions arising out of the location and operation of any
underground or above ground storage tanks, surface impoundments, septic tanks,
pits, sumps or lagoons in which Hazardous Materials are being or have been
treated, stored or disposed of or the release, discharge or disposal of
Hazardous Materials on any property currently owned or operated by any Loan
Party or any of its Subsidiaries or, to the knowledge of any Loan Party, on any
property formerly owned or operated by any Loan Party or any of its
Subsidiaries that would reasonably be expected to cause the Loan Parties or any
of their Subsidiaries any liability ((I) excluding (A) liabilities incurred in
the  ordinary cause of business, and (B)
liabilities with respect to which the applicable Loan Party is the beneficiary
of a third party indemnification agreement which is supported by a letter of
credit or other credit facility, in either case in form and substance
acceptable to the Administrative Agent, and which third party indemnification
agreement is otherwise acceptable to the Administrative Agent, and (II) in all
cases, such liabilities shall be determined net of insurance proceeds received
(or to be received) by the applicable Loan Party in connection with such
liability) in excess of, together with all other occurrences described in
clauses (ii), (iii), (v) and (vi) of this Section 4.01(l), $37,500,000 in
the aggregate pursuant to Environmental Laws or Environmental Permits.


 


(v)           Neither any Loan
Party nor any of its Subsidiaries is undertaking, and has not completed, either
individually or together with other potentially responsible parties, any
investigation or assessment or remedial or response action relating to any
actual or threatened release, discharge or disposal of Hazardous Materials at
any site, location or operation, pursuant to the order under Environmental Law
of any governmental or regulatory authority which would reasonably be expected
to result in liability ((I) excluding (A) liabilities incurred in the  ordinary cause of business, and (B)
liabilities with respect to which the applicable Loan Party is the beneficiary
of a third party indemnification agreement which is supported by a letter of
credit or other credit facility, in either case in form and substance
acceptable to the Administrative Agent, and which third party indemnification
agreement is otherwise acceptable to the Administrative Agent, and (II) in all
cases, such liabilities shall be determined net of insurance proceeds received
(or to be received) by the applicable Loan Party in connection with such


 


52

















 


liability) in
excess of, together with all other occurrences described in clauses (ii),
(iii), (iv) and (vi) of this Section 4.01(l), $37,500,000 in the
aggregate.


 


(vi)          No wastes generated
at, stored at, or transported to or from any property currently or formerly
owned or operated by any Loan Party or any of its Subsidiaries have been
disposed of in a manner that would reasonably be expected to result in
liability ((I) excluding (A) liabilities incurred in the ordinary cause of
business, and (B) liabilities with respect to which the applicable Loan Party
is the beneficiary of a third party indemnification agreement which is
supported by a letter of credit or other credit facility, in either case in
form and substance acceptable to the Administrative Agent, and which third
party indemnification agreement is otherwise acceptable to the Administrative
Agent, and (II) in all cases, such liabilities shall be determined net of
insurance proceeds received (or to be received) by the applicable Loan Party in
connection with such liability) in excess of, together with all other
occurrences described in clauses (ii), (iii), (iv) and (v) of this
Section 4.01(l), $37,500,000 in the aggregate pursuant to Environmental
Laws.


 


(m)          Tax Matters. (i)  Neither any Loan Party nor any of its
Subsidiaries is party to any tax sharing agreement other than the Tax
Agreement.


 


(ii)           Each Loan Party and
each of its Subsidiaries and Affiliates has filed, has caused to be filed or
has been included in all Federal income and other material tax returns required
to be filed by or on behalf of it and has paid or caused to be paid all taxes
shown thereon to be due for its account, together with all tax assessments
imposed on them plus any applicable interest and penalties except for those
taxes contested in good faith and for which reserves have been established in
accordance with GAAP.


 


(iii)          Set forth on
Part I of Schedule 4.01(m) hereto is a complete and accurate list, as
of the date hereof, of each taxable year of each Loan Party and each of its Subsidiaries
and Affiliates for which Federal income tax returns have been filed on behalf
of each Loan Party and for which the expiration of the applicable statute of
limitations for assessment or collection has not occurred by reason of
extension or otherwise (an “Open
Year”). No issues have been raised by the Internal Revenue
Service in respect of Open Years that, in the aggregate, could be reasonably
expected to have a Material Adverse Effect.


 


(iv)          There are no
proposed tax adjustments or tax assessments in writing against BMCA or any of
its Subsidiaries in respect of Open Years that if paid, collected or otherwise
enforced on a Loan Party would be reasonably likely to have a Material Adverse
Effect.


 


(v)           The aggregate unpaid
amount, as of the date hereof, of adjustments to the state, local and foreign
tax liability of each Loan Party and its Subsidiaries and Affiliates proposed
in writing by all state, local and foreign taxing authorities (other than
amounts arising from adjustments to Federal income tax returns) does not exceed
$10,000,000. No issues have been raised by such taxing authorities that, in the
aggregate, could be reasonably likely to have a Material Adverse Effect.


 


53

















 


(vi)          Based on current information
and circumstances, neither BMCA nor any of its Subsidiaries expect any of the Loans
hereunder to be specifically identified (in whole or in part) as a “reportable
transaction” on Internal Revenue Service Form 8886 filed with U.S. Federal
tax returns filed by them or the G-I Holdings Tax Group for purposes of
Section 6011, 6111 or 6112 of the Internal Revenue Code or the Treasury
Regulations promulgated thereunder.


 


(n)           Labor Matters. Neither the
business nor the properties of any Loan Party or any of its Subsidiaries are
affected by any strike, lockout or other labor dispute, that could be
reasonably likely to have a Material Adverse Effect.


 


(o)           Surviving Debt. Set forth on
Schedule 4.01(o) hereto is a complete and accurate list of all Surviving
Debt as of the date hereof, showing the obligor and the principal amount
outstanding thereunder, the maturity date thereof and the amortization schedule
therefor.


 


(p)           Existing Liens. Set forth on
Schedule 4.01(p) hereto is a complete and accurate list as of the date
hereof of all Liens on the property or assets of any Loan Party or any of its
Subsidiaries, showing the lienholder thereof, the principal amount of the
obligations secured thereby and the property or assets of such Loan Party or
such Subsidiary subject thereto.


 


(q)           Owned Real Property. Set forth
on Schedule 4.01(q) hereto is a complete and accurate list as of the date
hereof of all real property owned by any Loan Party or any of its Subsidiaries,
showing the street address, city or other relevant jurisdiction, state, record
owner and book and estimated fair value thereof. Each Loan Party or such
Subsidiary has good, marketable and insurable fee simple title to such real
property, free and clear of all Liens, other than Liens created or permitted by
the Loan Documents.


 


(r)            Leased Real Property. (1)  Set forth on Schedule 4.01(r)(1) hereto
is as of the date hereof a complete (except for non-material leases which (A)
provide for annual rental payments totaling in the aggregate (together with the
annual rental payments for all other leases not included on Schedule 4.01(r)(1)
or Schedule 4.01(r)(2)) not more than $1,000,000, and (B) have a term of not
longer than five years) and accurate list of all leases of real property under
which any Loan Party or any of its Subsidiaries is the lessee, showing the
street address, city or other relevant jurisdiction, state, lessor, lessee,
expiration date and annual rental cost thereof. To the knowledge of the
applicable Loan Party or Subsidiary that is the lessee, each such lease is the
legal, valid and binding obligation of the lessor thereof, enforceable in
accordance with its terms.


 


(2)           To the knowledge of the applicable
Loan Party or Subsidiary that is the lessor, set forth on Schedule 4.01(r)(2)
hereto is a complete (except for non-material leases which (A) provide for
annual rental payments totaling in the aggregate (together with the annual
rental payments for all other leases not included on Schedule 4.01(r)(1) or
Schedule 4.01(r)(2)) not more than $1,000,000, and (B) have a term of not
longer than five years) and accurate list as of the date hereof of all leases
of real property under which any Loan Party is the lessor, showing as of the
date hereof the street address, city or other relevant jurisdiction, state,
lessor, lessee, expiration date and annual rental cost thereof. To the
knowledge of the applicable Loan Party or Subsidiary that is the lessor,


 


54

















 


each such lease is
the legal, valid and binding obligation of the lessee thereof, enforceable in
accordance with its terms.


 


(s)           Investments. Set forth on
Schedule 4.01(s) hereto is a complete and accurate list as of the date
hereof of all Investments (other than Investments permitted under Section 5.02(f)(i)
through (iv)) held by any Loan Party or any of its Subsidiaries on the date
hereof, showing the amount, obligor or issuer and maturity, if any, thereof.


 


(t)            Intellectual Property. Set
forth on Schedule 4.01(t) hereto is a complete and accurate list as of the
date hereof of all registered patents, trademarks, trade names, service marks
and copyrights, and all applications therefor and licenses thereof, of each
Loan Party or any of its Subsidiaries, showing the jurisdiction in which
registered, the registration number, the date of registration and the
expiration date.


 


(u)           Material Contracts. Set forth
on Schedule 4.01(u) hereto is a complete and accurate list as of the date
hereof of all Material Contracts of each Loan Party and its Subsidiaries,
showing the parties and term thereof. Each such Material Contract has been duly
authorized, executed and delivered by each Loan Party party thereto, has not
been amended or otherwise modified, except as delivered prior to the date
hereof or in the case of modifications after the date of this Agreement, as
permitted under the Loan Documents, is in full force and effect and is binding
upon and enforceable against all parties thereto in accordance with its terms,
and there exists no default under any Material Contract that would give the
counterparty thereto the right to terminate such Material Contract (after the
expiration of any applicable cure period).


 


ARTICLE V



COVENANTS OF THE BORROWERS


 


SECTION 5.01.      Affirmative Covenants. So long as any Loan
or any other Obligation of any Loan Party under any Loan Document shall remain
unpaid, or any Lender shall have any Bridge Loan Commitment hereunder, the
Borrowers will (provided, that until the
consummation of the Merger, compliance with respect to Elk and its Subsidiaries
with the provisions of this Section 5.01 will not be required, but BMCA will
use commercially reasonable efforts to cause Elk and its Subsidiaries to so
comply except for Section 5.01(j) compliance with which in respect of Elk and
its Subsidiaries will only be required from and after the consummation of the
Merger):


 


(a)           Compliance with Laws, Etc. Comply,
and cause each of its Subsidiaries to comply, in all material respects, with
all applicable laws, rules, regulations and orders, such compliance to include,
without limitation, compliance with ERISA and the Racketeer Influenced and
Corrupt Organizations Chapter of the Organized Crime Control Act of 1970.


 


(b)           Payment of Taxes, Etc. Pay and
discharge, and cause each of its Subsidiaries to pay and discharge, before the
same shall become delinquent, (i) all Federal income and other material taxes,
assessments and governmental charges or levies lawfully imposed upon it or upon
its property and (ii) all lawful claims that, if unpaid, might by law
become a Lien upon its property; provided,
however, that neither BMCA nor
any of its


 


55

















 


Subsidiaries shall be required to pay or discharge any such Federal
income or other material tax, assessment, charge or claim that is being
contested in good faith and by proper proceedings and as to which appropriate
reserves are being maintained in conformity with GAAP, unless and until any
Lien resulting therefrom attaches to its property and becomes enforceable
against its other creditors.


 


(c)           Compliance with Environmental Laws.
Comply, cause each of its Subsidiaries to comply, and use commercially
reasonable efforts to cause all lessees and other Persons operating or
occupying its properties to comply, in all material respects, with Environmental
Laws and Environmental Permits; obtain and renew, and cause each of its
Subsidiaries to obtain and renew, all material Environmental Permits necessary
for its operations and properties; and upon receipt of any notification or
otherwise obtaining knowledge of any release of Hazardous Materials or other
event that has a reasonable likelihood of causing any Loan Party or any of its
Subsidiaries to incur any material liability pursuant to Environmental Laws,
conduct, or pay for consultants to conduct, any investigation, study, sampling
and testing reasonably necessary to evaluate the condition of the property, and
undertake any cleanup, removal, further investigation, and remedial or other
action required by Environmental Laws; provided,
however, that neither BMCA nor
any of its Subsidiaries shall be required to undertake any such cleanup,
removal, remedial or other action to the extent that its obligation to do so is
being contested in good faith and by proper proceedings and appropriate
reserves are being maintained with respect to such circumstances.


 


(d)           Maintenance of Insurance. Maintain,
and cause each of its Subsidiaries to maintain, insurance with responsible and
reputable insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses and
owning similar properties in the same general areas in which BMCA or such
Subsidiary operates.


 


(e)           Preservation of Corporate
Existence, Etc. Preserve and maintain, and cause each of its Subsidiaries
to preserve and maintain, its existence, legal structure, legal name, rights
(charter and statutory), permits, licenses, approvals, privileges and
franchises; provided, however, that BMCA and its Subsidiaries
may consummate any merger or consolidation permitted under
Section 5.02(d); and provided further
that neither BMCA nor any of its Subsidiaries shall be required to preserve any
right, permit, license, approval, privilege or franchise if the Board of
Directors (or similar entity) of BMCA or such Subsidiary shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of BMCA or such Subsidiary, as the case may be, and that the loss thereof is
not disadvantageous in any material respect to BMCA, such Subsidiary or the Lenders;
provided further that any Guarantor
may be dissolved, provided that (i) no Event of Default shall then exist
and be continuing, (ii) all of the property of such Guarantor shall be
transferred to BMCA or any other Guarantor, and (iii) no such dissolution
shall adversely affect the Collateral (including the nature, status, quality or
value thereof) or the interest of the Collateral Agent therein; provided, further, that any Loan Party which is now a
corporation can convert into a limited liability company, as long as (1) 
no Event of Default shall then exist and then be continuing, (2) no such
conversion shall adversely affect the obligations of such Loan Party under the
Loan Documents or the Collateral (including the nature, status, quality or
value thereof) or the interest of the Collateral Agent therein and such Loan
Party shall execute all documents and take such actions in


 


56

















 


connection with such conversion prior to the effect thereof as
reasonably requested by the Administrative Agent.


 


(f)            Visitation Rights. At any
reasonable time and from time to time and in each case, during normal business
hours, permit the Administrative Agent or the Collateral Agent, or any agents
or representatives thereof, to examine and make copies of and abstracts from
the records and books of account of, and visit the properties of, BMCA and any
of its Subsidiaries, to conduct appraisals and field examinations and monitor
the collateral as the Administrative Agent or the Collateral Agent may require,
and to discuss the affairs, finances and accounts of BMCA and any of its
Subsidiaries with any of their officers or directors and with their independent
certified public accountants; provided,
however, that any such
discussions shall be in the presence of a Responsible Officer of BMCA, so long
as the Responsible Officers of BMCA have made reasonable efforts to make
themselves available for such purpose.


 


(g)           Keeping of Books. Keep, and
cause each of its Subsidiaries to keep, proper books of record and account, in
which full and correct entries shall be made of all financial transactions and
the assets and business of BMCA and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.


 


(h)           Maintenance of Properties, Etc.
Maintain and preserve, and cause each of its Subsidiaries to maintain and
preserve, all of its properties that are used or useful in the conduct of its
business in good working order and condition, ordinary wear and tear excepted
and will from time to time make or cause to be made all appropriate repairs,
renewals and replacements thereof except where failure to do so would not
materially adversely affect the use of the related property.


 


(i)            Transactions with Affiliates.
Conduct, and cause each of its Subsidiaries to conduct, all transactions
otherwise permitted under the Loan Documents with any of their Affiliates
(including payments of any management fees) on terms that are fair and
reasonable and no less favorable to BMCA or such Subsidiary than it would
obtain in a comparable arm’s-length transaction with a Person not an Affiliate.


 


(j)            Covenant to Guarantee Obligations
and Give Security. Upon (x) the request of the Administrative Agent,
following the occurrence and during the continuance of a Default, (y) the
formation or acquisition of any new direct or indirect Subsidiaries by any Loan
Party or (z) the acquisition of any property by any Loan Party, and such
property, in the judgment of the Administrative Agent, shall not already be
subject to a perfected security interest in favor of the Collateral Agent for
the benefit of the Secured Parties (except to the extent the applicable Loan
Party is prohibited by law or contract), then in each case at BMCA’s reasonable
expense:


 


(i)        in connection with the
formation or acquisition of a Subsidiary that is not (x) a CFC or
(y) a Subsidiary that is held directly or indirectly by a CFC, within 15
days after such formation or acquisition, cause each such Subsidiary, and cause
each direct and indirect parent of such Subsidiary owned by BMCA (if it has not
already done so), to duly execute and deliver to the Administrative Agent a
guaranty or guaranty supplement and a security


 


57

















 


agreement
supplement, in form and substance satisfactory to the Administrative Agent,
guaranteeing the other Loan Parties’ Obligations under the Loan Documents and
providing security in respect of such guaranty, except in the case of Elk and
its Subsidiaries as of the date of the Merger, deliver such documents on or
prior to the date of the Merger,


 


(ii)       within 15 days after
such request, formation or acquisition furnish to the Administrative Agent a
description of the real and personal properties of the Loan Parties and their
respective Subsidiaries which are, or are required in accordance with the terms
of the Loan Documents to become, Loan Parties, in detail reasonably
satisfactory to the Administrative Agent,


 


(iii)      within (x) 15 days
after a request or acquisition of personal property or (y) within 60 days after
a request or acquisition of real property, in each case, by any Loan Party,
except, in the case of Elk and its Subsidiaries, 90 days after consummation of
the Merger, (A) duly execute and deliver, and cause each Loan Party to
duly execute and deliver, to the Administrative Agent such additional Mortgages,
pledges, assignments, security agreement supplements, intellectual property
security agreement supplements and other security agreements as specified by,
and in form and substance satisfactory to the Administrative Agent, securing
payment of all the Obligations of such Loan Party under the Loan Documents and
creating Liens on all such properties and (B) such formation or acquisition
of any new Subsidiary which is, or is required to become, a Loan Party, duly
execute and deliver and cause each Subsidiary to duly execute and deliver to
the Collateral Agent, Mortgages, pledges, assignments, security agreement
supplements, intellectual property security agreement supplements and other
security agreements as specified by, and in form and substance satisfactory to
the Administrative Agent, securing payment of all of the Obligations of such
Subsidiary under the Loan Documents; provided
that (A) the stock of any Subsidiary held by a CFC shall not be pledged
and (B) if such new property is Equity Interests in a CFC, only 66% of
such Equity Interests shall be pledged in favor of the Secured Parties,


 


(iv)      subject to Section
5.01(k)(iv), within 30 days after such request, formation or acquisition, take,
and cause each Loan Party and each newly acquired or newly formed Subsidiary
(other than any Subsidiary that is a CFC or a Subsidiary that is held directly
or indirectly by a CFC) to take, whatever action (including the recording of
mortgages, the filing of Uniform Commercial Code financing statements, the
giving of notices and the endorsement of notices on title documents) may be
necessary or reasonably advisable in the opinion of the Administrative Agent to
vest in the Collateral Agent (or in any representatives of the Collateral Agent
designated by such entity) valid and subsisting Liens on the properties
purported to be subject to the mortgages, pledges, assignments, security
agreement supplements, intellectual property security agreement supplements and
security agreements delivered pursuant to this Section 5.01(j),
enforceable against all third parties in accordance with their terms,


 


58

















 


(v)       within 60 days after
such request, formation or acquisition or, in the case of Elk and its
Subsidiaries, 90 days after consummation of the Merger (or such later date as
may be agreed to by the Administrative Agent), deliver to the Administrative
Agent, upon the request of the Administrative Agent in its sole discretion,
exercised reasonably, a signed copy of a favorable opinion, addressed to the
Agents, the Collateral Agent and the Lenders, of counsel for the Loan Parties
acceptable to the Administrative Agent as to (1) the matters contained in
clauses (i), (iii) and (iv) above, (2) such guaranties, guaranty
supplements, mortgages, pledges, assignments, security agreement supplements,
intellectual property security agreement supplements and security agreements
being legal, valid and binding obligations of each Loan Party party thereto
enforceable in accordance with their terms, as to the matters contained in
clause (iv) above, (3) such recordings, filings, notices,
endorsements and other actions being sufficient to create valid perfected Liens
on such properties, (4) matters of corporate formalities as the Administrative
Agent may request, and (5) such other matters as the Administrative Agent
may reasonably request,


 


(vi)      as promptly as
practicable after such request, formation or acquisition, deliver to the
Administrative Agent, upon its reasonable request with respect to each parcel
of real property owned or held by each Loan Party and each newly acquired or
newly formed Subsidiary (other than any Subsidiary that is a CFC or a
Subsidiary that is held directly or indirectly by a CFC), title reports and
title insurance, land surveys and engineering, soils and other reports, and
environmental assessment reports, each in scope, form and substance
satisfactory to the Administrative Agent, provided, however, that to the extent that any Loan Party or any of
its Subsidiaries shall have otherwise received any of the foregoing items with
respect to such real property, such items shall, promptly after the receipt
thereof, be delivered to the Administrative Agent, and


 


(vii)     at any time and from
time to time, promptly execute and deliver, and cause to execute and deliver,
each Loan Party and each newly acquired or newly formed Subsidiary (other than
any Subsidiary that is a CFC or a Subsidiary that is held directly or
indirectly by a CFC) any and all further instruments and documents and take,
and cause each Loan Party and each newly acquired or newly formed Subsidiary
(other than any Subsidiary that is a CFC or a Subsidiary that is held directly
or indirectly by a CFC) to take, all such other action as the Administrative
Agent may reasonably deem necessary in obtaining the full benefits of, or in
perfecting and preserving the Liens of, such guaranties, mortgages, pledges,
assignments, security agreement supplements, intellectual property security
agreement supplements and security agreements.


 


(k)           Further Assurances. (i)  Promptly upon request by the Administrative
Agent, correct, and cause each of its Subsidiaries promptly to correct, any
material defect or error that may be discovered in any Loan Document or in the
execution, acknowledgment, filing or recordation thereof, and


 


59

















 


(ii)           Promptly upon
request by the Administrative Agent, do, execute, acknowledge, deliver, record,
re-record, file, re-file, register and re-register any and all such further
acts, deeds, conveyances, pledge agreements, mortgages, deeds of trust, trust
deeds, assignments, financing statements and continuations thereof, termination
statements, notices of assignment, transfers, certificates, assurances and
other instruments as the Administrative Agent may reasonably require from time
to time in order to (A) carry out more effectively the purposes of the
Loan Documents, (B) to the fullest extent permitted by applicable law,
subject any Loan Party’s or any of its Subsidiaries’ properties, assets, rights
or interests to the Liens now or hereafter intended to be created by any of the
Collateral Documents, (C) perfect and maintain the validity, effectiveness
and priority of any of the Collateral Documents and any of the Liens intended
to be created thereunder and (D) assure, convey, grant, assign, transfer,
preserve, protect and confirm more effectively unto the Secured Parties the
rights granted or now or hereafter intended to be granted to the Secured
Parties under any Loan Document or under any other instrument executed in
connection with any Loan Document to which any Loan Party or any of its
Subsidiaries is or is to be a party, and cause each of its Subsidiaries to do
so.


 


(iii)          (A) If, as of the
Closing Date, the Collateral Agent has not received any of the items described
in Section 3.01(a)(vi), BMCA shall, within 60 days after the Closing Date (or
such later date as may be agreed to by the Administrative Agent), cause the
same to be delivered to the Collateral Agent; provided, however, that if the
Mortgage in respect of the Property located in Alabama is not delivered as of
the Closing Date, then BMCA shall, within 30 days after the Closing Date (or
such later date as may be agreed to by the Administrative Agent), cause the
same to be delivered to the Collateral Agent. Further, BMCA shall, within such 60
day period, (A) deliver to the Collateral Agent duly executed amendments to the
Mortgages requested by the Collateral Agent and take such other actions and
execute such other documents as reasonably requested by the Collateral Agent
that relate to title and survey matters and (B) if the survey for a Property
that has been delivered pursuant to Section 3.01(b)(iv)(C) is not acceptable to
the issuer of the Mortgage Policies or if a survey for a Property was not
delivered, BMCA shall, within ninety (90) days after the Closing Date (1)
provide a new American Land Title Association/American Congress on Surveying
and Mapping form survey, dated to a current date and for which all necessary
fees (where applicable) have been paid, certified to the Collateral Agent and
the issuer of the Mortgage Policies in a manner reasonably satisfactory to the
Collateral Agent by a land surveyor duly registered and licensed in the State
in which such Property described in such survey is located and reasonably
acceptable to the Administrative Agent, showing all buildings and other improvements,
any off-site improvements, the location of any easements, parking spaces,
rights of way, building set back lines and other dimensional regulations and
the absence of encroachments, either by such improvements or on to such
property, and other defects, other than encroachments and other defects
reasonably acceptable to the Administrative Agent and (2) cause a “land same as
survey” endorsement, an endorsement removing the standard survey exception and
any other survey related endorsements, to be added to each Mortgage Policy
same, each in form and substance reasonably acceptable to the Administrative
Agent and (C) within 60 days after the Closing Date, BMCA shall cause to be
delivered to the Administrative Agent (x) in respect of each Mortgage Policy
for the Properties in California and Georgia, a zoning endorsement and (y) in
respect of all other Properties encumbered by a Mortgage, a zoning endorsement,
a zoning compliance letter from the applicable municipality, a zoning opinion
or a PZR report.


 


60

















 


(iv)          On or prior to a
date that is 45 days following the Closing Date or such later date as the
Administrative Agent may determine in its sole discretion, BMCA and its
Subsidiaries shall have entered into one or more account control agreements in
form and substance satisfactory to the Administrative Agent in respect of
deposit accounts and securities accounts of BMCA and its Subsidiaries (other
than Elk and its Subsidiaries), and on or prior to a date that is 45 days
following the date of the Merger or such later date as the Administrative Agent
may determine in its sole discretion, Elk and its Subsidiaries shall have
entered into one or more account control agreements in form and substance
satisfactory to the Administrative Agent in respect of deposit accounts and
securities accounts of Elk and its Subsidiaries.


 


(v)           With respect to Elk
and its Subsidiaries as of the date of the Merger, (A) on or prior to a date
that is 15 days following the date of the Merger or such later date as the
Administrative Agent may determine in is sole discretion, BMCA shall cause to
be delivered to the Administrative Agent resolutions and legal opinions, in
form and substance reasonably satisfactory to the Administrative Agent, with
respect to the supplements to the Security Agreement and the Guaranty delivered
on the date of the Merger by such entities organized under the laws of the
State of Delaware and on or prior to a date that is 90 days following the date
of the Merger or such later date as the Administrative Agent may determine in
its sole discretion, BMCA shall cause to be delivered to the Administrative
Agent such resolutions and legal opinions with respect to such supplements
delivered by each such entity organized under the laws of a jurisdiction in
which a Mortgage is to be recorded pursuant to the terms hereof and (B) on or
prior to a date that is 45 days following the date of the Merger or such later
date as the Administrative Agent may determine in its sole discretion, BMCA
shall cause to be delivered to the Collateral Agent certificates representing
equity interests (accompanied by undated stock powers executed in blank) and
instruments evidencing Debt, indorsed in blank, in each case pledged under the
Security Agreement on the date of the Merger.


 


(vi)          The Borrowers shall
use their commercially reasonable efforts to request and obtain or cause the
applicable Loan Party who holds title to each IRB Property to request and
obtain not later than 60 days after the Closing Date (or such later date as may
be agreed to by the Administrative Agent), all consents and approvals (each, an
“IRB Consent”)
that are required pursuant to the current underlying industrial revenue bond
(or like) financing documents relating to each IRB Property such that the
Borrowers or the applicable Loan Party, as the case may be, will be permitted
to grant a Mortgage covering each IRB Property without being in breach or
default under such industrial revenue bond financing documents. Within 60 days after
the earlier of (A) receiving the applicable IRB Consent for an IRB Property or
(B) the underlying industrial revenue bond (or like) financing being
discharged, the Borrowers shall deliver, or cause the applicable Loan Party to
deliver, to the Administrative Agent, the items, agreements, instruments and
documents set forth in Section 3.01(b)(iv) and Section 3.01(b)(v) with respect
to such IRB Property, including a new land survey as described in Section
5.01(k)(iii).


 


(vii)         The Borrowers shall
use their commercially reasonable efforts to request and obtain or cause the
applicable Loan Party who holds title to each leased Property to request and
obtain from the applicable landlord not later than 60 days after the Closing


 


61

















 


Date (or such
later date as may be agreed to by the Administrative Agent), a collateral
access agreement with respect to such leased Property in form and substance
satisfactory to the Administrative Agent in its reasonable discretion.


 


(l)            Performance of Tax Agreement.
Perform and observe, and cause each of its Subsidiaries to perform and observe,
all of the terms and provisions of the Tax Agreement to be performed or
observed by it, maintain the Tax Agreement in full force and effect, enforce the
Tax Agreement in accordance with its terms, and take all such action under the
Tax Agreement to such end as may be from time to time reasonably requested by
the Administrative Agent.


 


(m)          Preparation of Environmental
Reports. At the reasonable request of the Administrative Agent from time to
time (not to exceed once per year for each such property, except during the
continuance of any Default), provide to the Administrative Agent within 60 days
after such request or such later date as may be agreed to by the Administrative
Agent, at the expense of BMCA, an environmental site assessment report for any
of its or its Subsidiaries’ properties described in such request, prepared by
an environmental consulting firm acceptable to the Administrative Agent,
indicating the presence or absence of Hazardous Materials and the estimated
cost of any compliance, removal or remedial action in connection with any
Hazardous Materials on such properties, if any.


 


(n)           Compliance with Terms of
Leaseholds. Make all payments and otherwise perform all obligations in
respect of all leases of real property to which BMCA or any of its Subsidiaries
is a party, keep such leases in full force and effect and not allow such leases
to lapse or be terminated or any rights to renew such leases to be forfeited or
cancelled, notify the Administrative Agent of any material default of which it
is aware by any party with respect to such leases and cooperate with the
Administrative Agent in all respects to cure any such default by a Loan Party,
and cause each of its Subsidiaries to do so, except, in any case, where the
failure to do so, either individually or in the aggregate, could not be
reasonably likely to have a Material Adverse Effect.


 


(o)           Performance of Material Contracts.
Perform and observe all the terms and provisions of each Material Contract to
be performed or observed by it, maintain each such Material Contract in full
force and effect, enforce each such Material Contract in accordance with its
terms, take all such action to such end as may be from time to time requested
by the Administrative Agent, and cause each of its Subsidiaries to do so,
except, in any case, where the failure to do so, either individually or in the
aggregate, could not be reasonably likely to have a Material Adverse Effect.


 


(p)           G-I Holdings. Upon the
Administrative Agent’s reasonable request, but not more frequently than once
per month, make a senior officer of BMCA available to provide to the
Administrative Agent (i) an update of developments in (A) the G-I
Holdings bankruptcy proceedings, and (B) any proceedings related to
asserted Federal income tax liabilities in connection with the Rhone Poulenc
Transactions and (ii) any information relating thereto that the
Administrative Agent may reasonably request.


 


(q)           Reportable Transaction. BMCA will
notify the Administrative Agent promptly in the event that BMCA or any other
member of the G-I Holdings Tax Group


 


62

















 


specifically identifies any of the Loans under this Agreement as a “reportable
transaction” on Internal Revenue Service Form 8886 filed with the U.S.
Federal tax returns for purposes of Sections 6011, 6111 or 6112 of the Internal
Revenue Code or the Treasury Regulations promulgated thereunder.


 


(r)            Tax Liabilities. BMCA (i)
shall immediately inform the Lenders with respect to the Rhone Poulenc
Transactions of (A) any court ruling determining tax liability or otherwise
addressing the merits of the case; (B) any proposed or actual assessment or
deficiency as to which any Loan Party or any member of the G-I Holdings Tax
Group has knowledge; or (C) any written demand for payment of taxes from a tax
authority, and (ii) shall provide any information available to them and
reasonably required by the Lenders to make a determination with respect to the
matters set forth in Section 6.01(h)(i).


 


SECTION 5.02.      Negative Covenants. So long as any Loan or
any other Obligation of any Loan Party under any Loan Document shall remain
unpaid, or any Lender shall have any Bridge Loan Commitment hereunder, BMCA will
not, at any time (provided, that until the
consummation of the Merger, compliance with respect to Elk and its Subsidiaries
with the provisions of this Section 5.02 will not be required, but BMCA will
use commercially reasonable efforts to cause Elk and its Subsidiaries to so
comply):


 


(a)           Liens, Etc. Create, incur,
assume or suffer to exist, or permit any of its Subsidiaries to create, incur,
assume or suffer to exist, any Lien on or with respect to any of its properties
of any character (including accounts) whether now owned or hereafter acquired,
or sign or file or suffer to exist, or permit any of its Subsidiaries to sign
or file or suffer to exist, under the Uniform Commercial Code of any
jurisdiction, a financing statement that names BMCA or any of its Subsidiaries
as debtor, or sign or suffer to exist, or permit any of its Subsidiaries to
sign or suffer to exist, any security agreement authorizing any secured party
thereunder to file such financing statement, or assign, or permit any of its
Subsidiaries to assign, any accounts or other right to receive income, except:


 


(i)        Liens created under the
Loan Documents and Liens securing the Revolving Credit Facility (and the other
Obligations referred to therein entitled to share in the collateral therefor),
the Term Loan Facility (and the other Obligations referred to therein entitled
to share in the collateral therefor), the Existing Indentures and the Senior
Notes;


 


(ii)       Permitted Liens;


 


(iii)      (A) Liens existing on
the date hereof and described on Schedule 4.01(p) hereto, (B) after the
consummation of the Merger, cash collateral to secure any outstanding Elk
Letters of Credit and (C) on or after the Closing Date, the Liens listed on
Schedule 5.02(a)(iii) hereto;


 


(iv)      purchase money Liens
upon or in real property or equipment acquired or held by BMCA or any of its
Subsidiaries in the ordinary course of business to secure the purchase price of
such property or equipment or to secure Debt incurred solely for the purpose of
financing the acquisition, construction or


 


63

















 


improvement of
any such property or equipment to be subject to such Liens, or Liens existing
on any such property or equipment at the time of acquisition (other than any
such Liens created in contemplation of such acquisition that do not secure the
purchase price), or extensions, renewals or replacements of any of the
foregoing for the same or a lesser amount, in each case, to the extent
permitted under Section 5.02(b)(iii)(B)(I); provided, however,
that no such Lien shall extend to or cover any property other than the property
or equipment being acquired, constructed or improved, and no such
extension, renewal or replacement shall extend to or cover any property not
theretofore subject to the Lien being extended, renewed or replaced; and provided  further
that the aggregate principal amount of the Debt secured by Liens permitted by
this clause (iv) shall not exceed the amount permitted with respect
thereto under Section 5.02(b)(iii)(B) at any time outstanding;


 


(v)       Liens arising in
connection with Capitalized Leases permitted under
Section 5.02(b)(iii)(B)(II); provided, however,
that no such Lien shall extend to or cover any Collateral or assets other than
the assets subject to such Capitalized Leases; and provided,  further
that the aggregate principal amount of the Debt secured by Liens permitted by
this clause (v) shall not exceed the amount permitted with respect thereto
under Section 5.02(b)(iii)(B) at any time outstanding;


 


(vi)      Liens arising in
connection with sale-leaseback transactions permitted under Section
5.02(b)(iii)(B)(III); provided, however,
that no such Lien shall extend to or cover any Collateral or assets other than
the assets subject to such sale-leaseback transactions; and provided, further
that the aggregate principal amount of the Debt secured by Liens permitted by
this clause (vii) shall not exceed the amount permitted with respect thereto
under Section 5.02(b)(iii)(B) at any time outstanding;


 


(vii)     Liens to secure Debt
permitted under Section 5.02(b)(iii)(J);


 


(viii)    the replacement,
extension or renewal of any Lien permitted by clauses (iii) through (vii) above
upon or in the same property theretofore subject thereto or the replacement,
extension or renewal (without increase in the amount or change in any direct or
contingent obligor) of the Debt secured thereby; provided, however, that the aggregate
principal amount of the Debt secured by Liens permitted by this clause (viii)
(excluding the replacement, extension or renewal of any Lien permitted by
clause (iii) above) shall not exceed the applicable amount permitted with
respect thereto under Section 5.02(b)(iii)(B) or (E), as the case may be,
at any time outstanding; and


 


(ix)       Liens arising in connection
with operating leases to the extent such operating leases are otherwise
permitted hereunder; provided, however,
that no such Lien shall extend to or cover any Collateral or assets other than
the assets subject to such operating leases.


 


64

















 


(b)           Debt. Create, incur, assume or
suffer to exist, or permit any of its Subsidiaries to create, incur, assume or
suffer to exist, any Debt, except:


 


(i)        in the case of BMCA,
Debt owed to a wholly owned Subsidiary of BMCA which is a Guarantor, which Debt
(x) shall constitute Pledged Debt and (y) shall be evidenced by
promissory notes in form and substance satisfactory to the Administrative Agent
and such promissory notes shall, in the case of Debt owed to a Loan Party, be
pledged as security for the Obligations of the holder thereof under the Loan
Documents to which such holder is a party and delivered to the Collateral Agent
pursuant to the terms of the Security Agreement;


 


(ii)       in the case of any
Subsidiary of BMCA, Debt owed to BMCA or to a wholly owned Subsidiary of BMCA, provided that, in each case, such Debt
(w) shall be permitted under Section 5.02(f), (x) shall, in the
case of Debt owed to a Loan Party, constitute Pledged Debt and (y) shall
be evidenced by promissory notes in form and substance satisfactory to the
Administrative Agent and such promissory notes shall, in the case of Debt owed
to a Loan Party, be pledged as security for the Obligations of the holder
thereof under the Loan Documents to which such holder is a party; and


 


(iii)      in the case of BMCA and
its Subsidiaries,


 


(A)          Debt under this Agreement, the
Revolving Credit Facility, the Existing Indentures, the Senior Notes Indenture,
the Term Loan Facility and the Elk Letters of Credit,


 


(B)           So long as (1) no Default has
occurred and is continuing (both at the time of such incurrence and after
giving pro forma effect thereto), and (2) after giving effect to such
incurrence, BMCA shall be in pro forma compliance with the provisions of
Section 5.04 (such compliance to be determined on the basis of the
required financial information most recently delivered to the Administrative
Agent and the Lenders as though such Debt had been incurred as of the first day
of the fiscal period covered thereby), (I) Debt secured by Liens permitted
by Section 5.02(a)(iv), (II) Capitalized Leases permitted by
Section 5.02(a)(v), and (III) Debt in respect of sale-leaseback
transactions permitted by Section 5.02(a)(vii), provided, however,
that (i) such Debt incurred pursuant to this Section 5.02(b)(iii)(B) shall not
have scheduled amortization payments prior to the eighth anniversary of the
Closing Date in an aggregate principal amount in any Fiscal Year (together with
the aggregate scheduled amortization payments in any Fiscal Year prior to the
eighth anniversary of the Closing Date of any Debt permitted pursuant to
clauses (C), (E) and (J) below) greater than the Amortization Basket, and (ii)
Debt incurred pursuant to this Section 5.02(b)(iii)(B) shall not exceed $200,000,000
in the aggregate during the term of this Agreement,


 


65

















 


(C)           So long as (1) no Default has
occurred and is continuing (both at the time of such incurrence and after
giving pro forma effect thereto), and (2) after giving effect to such
incurrence, BMCA shall be in pro forma compliance with the provisions of
Section 5.04 (such compliance to be determined on the basis of the
required financial information most recently delivered to the Administrative
Agent and the Lenders as though such Debt had been incurred as of the first day
of the fiscal period covered thereby), Debt extending the maturity of, or
refunding or refinancing, in whole or in part (without any increase in the
principal amount thereof or any change in any direct or contingent obligor
thereof), any Debt under the 2014 Notes Indenture, the Term Loan Facility, the
Revolving Credit Facility or the Senior Notes Indenture, provided, however, that
(x) the terms and conditions of such extending, refunding or refinancing
Debt are market terms and conditions at the time of such extension, refunding
or refinancing and (y) any security arrangements in respect of such
extended, refunded or refinanced Debt shall be no more onerous to the Lenders
than those set forth in the security documentation in effect at such time; and provided, further,
that there are no remaining scheduled amortization payments in respect of such
extending, refunding or refinancing Debt prior to December 31, 2015 that is
more onerous than the remaining scheduled amortization prior to December 31,
2015 applicable to the Debt being refinanced, provided,
further, that any Net Cash  Proceeds received by BMCA in connection with
any refinancing of such Debt and not applied for such refinancing shall be
applied as provided in Section 2.05,


 


(D)          The Surviving Debt and, on or after
the Closing Date, the Debt listed on Schedule 5.02(b)(iii)(D) hereto,


 


(E)           So long as (1) no Default has
occurred and is continuing (both at the time of such incurrence and after
giving pro forma effect thereto), and (2) after giving effect to such
incurrence, BMCA shall be in pro forma compliance with the provisions of
Section 5.04 (such compliance to be determined on the basis of the
required financial information most recently delivered to the Administrative
Agent and the Lenders as though such Debt had been incurred as of the first day
of the fiscal period covered thereby), Debt extending the maturity of, or
refunding or refinancing, in whole or in part (without any increase in the
principal amount thereof or any change in any direct or contingent obligor
thereof), any Debt described in clause (B) above and any other Surviving
Debt, provided that (x) there are no remaining scheduled amortization
payments in respect of such extending, refunding or refinancing Debt prior to
December 31, 2015 that is more onerous than the remaining scheduled
amortization prior to December 31, 2015 if any, applicable to the Debt being
extended, refunded or refinanced, (y) any security arrangements in respect
of such extended, refunded or refinanced Debt shall be no more onerous to the Lenders
than those set forth in the security documentation


 


66

















 


in effect at such time; and (z) there are no
scheduled amortization payments of principal in respect of such Debt prior to
the eighth anniversary of the Closing Date in an aggregate principal amount in
any Fiscal Year (together with the aggregated scheduled amortization payments
in any Fiscal Year prior to the eighth anniversary of the Closing Date of any
Debt permitted pursuant to clauses (B) and (C) above and clause (J) below)
greater than the Amortization Basket; provided, further, that the principal amount of such Debt being
extended, refunded or refinanced shall not be increased above the principal
amount thereof outstanding immediately prior to such extension, refunding or
refinancing and the direct and contingent obligors therefor shall not be
changed as a result of or in connection with such extension, refunding or
refinancing,


 


(F)           So long as (1) no Default has
occurred and is continuing (both at the time of such incurrence and after
giving pro forma effect thereto), and (2) after giving effect to such
incurrence, BMCA shall be in pro forma compliance, with the provisions of
Section 5.04 (such compliance to be determined on the basis of the
required financial information most recently delivered to the Administrative
Agent and the Lenders as though such Debt had been incurred as of the first day
of the fiscal period covered thereby), unsecured, subordinated Debt with market
terms owing to G-I Holdings or BMCA Holdings,


 


(G)           Debt consisting of surety bonds or
similar instruments in favor of government agencies in connection with workers’
compensation liabilities, taxes, assessments or other obligations, provided, however, that
such Debt is incurred in the ordinary course of business,


 


(H)          Debt of any entity acquired by BMCA or
its Subsidiaries in accordance with the terms hereof so long as (i) such Debt
was incurred prior to such acquisition (and not in connection with or contemplation
of, such acquisition), (ii) both before and after giving effect to such
acquisition, no Default or Event of Default shall exist, and (iii) such Debt
has no additional direct, indirect or contingent obligor,


 


(I)            Debt of any Loan Party consisting of
Contingent Obligations in respect of Debt of other Loan Parties, so long as
such other Loan Parties are permitted to incur such Debt hereunder,


 


(J)            So long as (1) no Default has
occurred and is continuing (both at the time of such incurrence and after
giving pro forma effect thereto), and (2) after giving effect to such
incurrence, BMCA shall be in pro forma compliance, with the provisions of
Section 5.04 (such compliance to be determined on the basis of the
required financial information most recently delivered to the Administrative
Agent and the Lenders as though such Debt had been incurred as of the first day
of the fiscal period covered thereby), Debt ranked junior (in respect of any Liens


 


67

















 


securing such Debt, which Liens shall be ranked
junior to the Liens securing the Bridge Loan Facility), provided, however,
that there are no scheduled amortization payments of principal in respect of
such Debt prior to December 31, 2015 in an aggregate principal amount in any
Fiscal Year (together with the aggregated scheduled amortization payments in
any Fiscal Year prior to the eighth anniversary of the Closing Date of any Debt
permitted pursuant to clauses (B), (C) and (E) above) greater than the
Amortization Basket, and


 


(K)          At any time prior to the thirtieth
Business Day after the date of the Merger, the Elk Private Notes.


 


(c)           Change in Nature of Business. Make,
or permit any of its Subsidiaries to make, any material change in the nature of
its business as carried on at the date hereof (other than as a result of an
Investment permitted by Section 5.02(f)(vii)(B) involving complementary lines
of business).


 


(d)           Mergers, Etc. Other than
pursuant to the Merger, merge into or consolidate with any Person or permit any
Person to merge into it, or permit any of its Subsidiaries to do so, except
that:


 


(i)        any Subsidiary of BMCA
may merge into or consolidate with any other Subsidiary of BMCA, provided, however, that,
in the case of any such merger or consolidation, the Person formed by such
merger or consolidation shall be a wholly owned Subsidiary of BMCA, and provided further that, in the case of any
such merger or consolidation to which a Guarantor is a party, the Person formed
by such merger or consolidation shall be a Guarantor;


 


(ii)       in connection with any
acquisition permitted under Section 5.02(f), any Subsidiary of BMCA may
merge into or consolidate with any other Person or permit any other Person to
merge into or consolidate with it; provided, however,
that (x) the Person surviving such merger shall be a wholly owned direct
or indirect Subsidiary of BMCA and (y) in the case of any such merger or
consolidation to which a Guarantor is a party, the Person formed by such merger
or consolidation shall be a Guarantor;


 


(iii)      in connection with any
sale or other disposition permitted under Section 5.02(e) (other than
clause (ii) thereof), any Subsidiary of BMCA may merge into or consolidate
with any other Person or permit any other Person to merge into or consolidate
with it; and


 


(iv)      any of BMCA’s
Subsidiaries may merge into BMCA; provided that the Person surviving such
merger shall be BMCA.


 


provided, however, that in
each case, immediately before and after giving effect thereto, no Event of
Default shall have occurred and be continuing and, in the case of any such
merger to which BMCA is a party, BMCA is the surviving corporation.


 


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(e)           Sales, Etc., of Assets. Sell,
lease, transfer or otherwise dispose of, or permit any of its Subsidiaries to
sell, lease, transfer or otherwise dispose of, any assets, or grant any option
or other right to purchase, lease or otherwise acquire any assets, except:


 


(i)        Certain Permitted
Dispositions;


 


(ii)       in a transaction
authorized by Section 5.02(d) (other than subsection (iii) thereof), 5.01(s)
or 5.02(f);


 


(iii)      the sale of any assets
(x) asset identified on Schedule 5.02(e) hereto (such assets being “Excluded Assets”) or (y) any
other assets in any Fiscal Year by BMCA or any Subsidiary, the fair market
value of which is not greater than $100,000,000, provided, however, that any unused portion
thereof may be carried forward to any succeeding year, and provided,
further, that the fair market value of all assets sold by BMCA or
any Subsidiary during the term of this Agreement shall in no event be greater
than $300,000,000 in the aggregate (the foregoing asset sales described in
clauses (x) and (y) above being collectively, “Permitted Asset Sales”)
so long as in each case (A) the terms of any such sale shall be
commercially reasonable, (B) the purchase price paid to BMCA or such
Subsidiary for such asset shall be no less than the fair market value of such
asset at the time of such sale and (C) at least 66 2/3% of the purchase
price for such asset shall be paid to BMCA or such Subsidiary solely in cash;


 


(iv)      sales by means of a
lease or sublease of property of BMCA or any of its Subsidiaries, so long as
(x) such transaction is permitted pursuant to Section 5.02(b)(iii)(B)(III) and
(y) BMCA or such Subsidiary continues to reflect ownership of such property in
its financial statements in accordance with GAAP;


 


(v)       assignments and licenses
of intellectual property of BMCA and its Subsidiaries in the ordinary course of
business; and


 


(vi)      dispositions of property
not to exceed an aggregate fair market value of $10,000,000 in the aggregate,
which in the commercially reasonable opinion of BMCA or such Subsidiary, and
consistent with historic business practice, is obsolete;


 


provided that in the case of sales of
assets pursuant to clauses (i), (iii), (iv), and (vi) above, BMCA shall,
on the date of receipt by any Loan Party or any of its Subsidiaries of the Net
Cash Proceeds from such sale, prepay the Loans pursuant to, to the extent set
forth in, Section 2.05(b), as specified therein.


 


(f)            Investments in Other Persons.
Make or hold, or permit any of its Subsidiaries to make or hold, any Investment
in any Person, except:


 


(i)        (A) equity
Investments by BMCA and its Subsidiaries in their Subsidiaries outstanding on
the date hereof, (B) additional Investments in Loan


 


69

















 


Parties and
(C) additional Investments by Subsidiaries of BMCA that are not Loan
Parties in other such Subsidiaries;


 


(ii)       so long as no Default
or Event of Default has occurred and is continuing both at the time of such
Investment and after pro forma effect thereto, (x) Investments in an aggregate amount
not in excess of $25,000,000 in Non-Recourse Subsidiaries or any Persons that
are not Loan Parties, excluding G-I Holdings and BMCA Holdings and (y)
Restricted Investments permitted under Section 5.02(g);


 


(iii)      loans and advances to
employees in the ordinary course of the business of BMCA and its Subsidiaries
as presently conducted in an aggregate principal amount not to exceed $2,500,000
at any time outstanding;


 


(iv)      Investments by BMCA and
its Subsidiaries in Cash Equivalents;


 


(v)       Investments existing on
the date hereof and described on Schedule 4.01(s) hereto;


 


(vi)      Investments by BMCA in
Hedge Agreements to the extent permitted under Section 5.02(s);


 


(vii)     the purchase or other
acquisition (a “Permitted
Acquisition”) of all of the Equity Interests in, or all or
substantially all of the property and assets of, any Person that, upon the
consummation thereof, will be wholly owned directly by BMCA or one or more of
its wholly owned Subsidiaries (including as a result of a merger or
consolidation); provided that, with respect to each purchase or other
acquisition made pursuant to this clause (vii):


 


(A)          any such newly created or acquired
Subsidiary shall comply with the requirements of Section 5.01(j);


 


(B)           the lines of business of the Person
to be (or the property and assets of which are to be) so purchased or otherwise
acquired shall be (a) substantially the same lines of business as, or (b) lines
of business complementary to, one or more of the principal businesses of BMCA
and its Subsidiaries in the ordinary course;


 


(C)           such purchase or other acquisition
shall not include or result in any contingent liabilities that could reasonably
be expected to result in a Material Adverse Change (as determined in good faith
by the board of directors (or the persons performing similar functions) of BMCA
or such Subsidiary if the board of directors is otherwise approving such
transaction;


 


(D)          (1) immediately before and
immediately after giving pro forma
effect to any such Permitted Acquisition, no Default or Event of Default shall
have occurred and be continuing, (2) BMCA and its


 


70

















 


Subsidiaries shall be in pro forma
compliance with the covenants set forth in Section 5.04
(each of (1) and (2) above to be determined on the basis of the required
financial information most recently delivered to the Administrative Agent and
the Lenders as though such purchase or other acquisition had been consummated
as of the first day of the fiscal period covered thereby and (3) the aggregate
consideration paid in connection with all such Permitted Acquisitions shall not
exceed $100,000,000 per year and $250,000,000 during the term of this
Agreement); and


 


(E)           BMCA shall have delivered to the
Administrative Agent, on behalf of the Lenders, at least three Business Days
prior to the date on which any such purchase or other acquisition is to be
consummated, a certificate of a Responsible Officer, in form and substance
reasonably satisfactory to the Administrative Agent, certifying that all of the
requirements set forth in this clause (vii) have been satisfied or will be
satisfied on or prior to the consummation of such Permitted Acquisition;


 


(viii)    Investments in any “strategic
alliance” joint marketing arrangement, provided that such Investments do not
exceed $10,000,000 in the aggregate for any Fiscal Year;


 


(ix)       (a) Investments
consisting of Initial G-I Holdings Letters of Credit or substitutions thereof (subject
to Section 5.02(g)) and (b) subject to Section 5.02(g), Investments consisting
of Future G-I Letters of Credit and renewals thereof;


 


(x)        So long as the
provisions of Section 5.02(g) are satisfied (determined as if such Investment
were a payment, dividend or distribution described in Section 5.02(g)), Investments
(other than Investments described in clause (ix) above) in G-I Holdings and
BMCA Holdings; and


 


(xi)       the purchase of the
remaining outstanding shares of Elk pursuant to the Merger or otherwise.


 


(g)           Restricted Payments. (i) Make
or permit any of its Subsidiaries to make, directly or indirectly, any
Restricted Payment or Restricted Investment, except that, so long as no Default
or an Event of Default shall have occurred and be continuing, BMCA may make,
and may permit any of its Subsidiaries to make, directly or indirectly, any
Restricted Payment or Restricted Investment so long as, at the time of such
Restricted Payment or Restricted Investment and immediately after giving effect
thereto, the aggregate amount of Restricted Payments made since the Closing
Date and the aggregate amount of Restricted Investments made since the Closing
Date and then outstanding (the amount expended for such purposes, if other than
in cash, shall be the fair market value of such property as determined by the
Board of Directors of BMCA in good faith as of the date of payment or
investment) shall not exceed (when combined with all Restricted Payments and
Restricted Investments since January 1, 2001) the sum of:


 


71

















 


(a)           50% of the cumulative Consolidated
Net Income (or minus 100% of the cumulative Consolidated Net Loss) of BMCA
accrued during the period beginning January 1, 2001 and ending on the last day
of the most recently completed fiscal quarter for which financial statements
are available (treating such period as a single accounting period);


 


(b)           100% of the net cash proceeds,
including the fair market value of property other than cash as determined by
the Board of Directors of BMCA in good faith, as evidenced by a board
resolution, received by BMCA from any Person (other than a Subsidiary of BMCA)
from the issuance and sale subsequent to July 26, 2004 of Equity Interests of
BMCA (other than Redeemable Equity Interests) or as a capital contribution; provided that, if the value of the non-cash consideration or
contribution is in excess of $50,000,000, BMCA shall have received the written
opinion of a nationally recognized investment banking firm that the terms
thereof, from a financial point of view, are fair to the shareholders of BMCA
or such Subsidiary, in their capacity as such (the determination as to the
value of any non-cash consideration referred to in this clause (B) to be made
by such investment banking firm), and such opinion shall have been delivered to
the Administrative Agent;


 


(c)           with respect to Restricted Investments made by any Loan Party after
July 26, 2004, an amount equal to the net reduction in such Restricted
Investments in any Person resulting from repayments of loans or advances, or
other transfers of assets, in each case to any Loan Party or from the net cash
proceeds from the sale or other disposition of any such Restricted Investment
(except, in each case, to the extent any such payment or proceeds are included
in the calculation of Consolidated Net Income (Loss)), or from designation of
any Non-Recourse Subsidiary as a Loan Party, not to exceed, in each case, the
amount of Restricted Investments previously made by the Loan Parties in such
Person or Non-Recourse Subsidiary after July 26, 2004;


 


(d)           100% of the net cash proceeds
received by BMCA from the exercise of options or warrants on BMCA’s Equity
Interests (other than Redeemable Equity Interests) since July 26, 2004;


 


(e)           100% of the net cash proceeds
received by BMCA from the conversion into Equity Interests (other than
Redeemable Equity Interests) of convertible Debt or convertible Preferred
Interests issued and sold (other than to a Subsidiary of BMCA) since July 26,
2004; and


 


(f)            $60,000,000.


 


The
designation by BMCA or any of its Subsidiaries of a Subsidiary as a
Non-Recourse Subsidiary shall be deemed to be the making of a Restricted
Investment by BMCA in an amount equal to the outstanding Investments made by
BMCA and its Subsidiaries in such Person being designated a Non-Recourse
Subsidiary at the time of such designation.


 


72

















 


(ii)           Section 5.02(g)(i)
shall not prevent the following, as long as no Default or Event of Default
shall have occurred and be continuing (or would result therefrom other than
pursuant to Section 5.02(g)(i):


 


(a)           the making of any Restricted Payment
or Restricted Investment within 60 days after (x) the date of declaration
thereof or (y) the making of a binding commitment in respect thereof; provided that at such date of declaration or commitment such
Restricted Payment or Restricted Investment complied with Section 5.02(g)(i);


 


(b)           any Restricted Payment or Restricted
Investment made out of the net cash proceeds received by BMCA from the
substantially concurrent sale of its common stock (other than to a Subsidiary
of BMCA); provided that such net cash proceeds so
utilized shall not be included in paragraph (a) in determining the amount of
Restricted Payments or Restricted Investments BMCA could make under Section
5.02(g)(i);


 


(c)           cumulative Investments in
Non-Recourse Subsidiaries not in excess of $50,000,000 in the aggregate from
July 26, 2004 determined as of the date of the Investment (the amount so
expended, if other than cash, to be determined by BMCA’s Board of Directors, as
evidenced by a board resolution); and


 


(d)           repurchases of Equity Interests of
BMCA, in each case from employees, former employees or directors of BMCA or any
of its Subsidiaries (other than any Permitted Holder); provided,
however, that the aggregate amount of
Restricted Payments made under this clause (d) shall not exceed $3,000,000 in
any Fiscal Year; provided, further,
that if any portion of the aggregate amount of Restricted Payments permitted to
be made pursuant to this clause (d) shall not be made in a Fiscal Year,
Restricted Payments pursuant to this clause (d) in amount not to exceed to such
unused portion may be made in the subsequent Fiscal Year in addition to all
other Restricted Payments permitted to be made pursuant to this clause (d) in
that Fiscal Year.


 


Restricted
Payments or Restricted Investments made pursuant to clause (b), (c) or (d) of
this clause (ii) shall not be deducted in determining the amount of Restricted
Payments or Restricted Investments made or then outstanding under Section
5.02(g)(i).


 


For
purposes of determining compliance with this Section 5.02(g), in the event that
a Restricted Payment meets the criteria of more than one of the types of
Restricted Payments described above, BMCA, in its sole discretion, may order
and classify such Restricted Payment in any manner in compliance with this
Section 5.02(g).


 


(h)           Amendments of Constitutive
Documents. Amend, or permit any of its Subsidiaries to amend, its
certificate of incorporation or bylaws or other constitutive documents other
than amendments that could not be reasonably expected to have a Material
Adverse Effect.


 


73

















 


(i)            Accounting Changes. Make or
permit, or permit any of its Subsidiaries to make or permit, any change in
(i) accounting policies or reporting practices, except as required or
permitted by generally accepted accounting principles, or (ii) such Person’s
Fiscal Year.


 


(j)            Prepayments, Etc., of Debt. Prepay,
redeem, purchase, defease, exchange or otherwise satisfy prior to the scheduled
maturity thereof in any manner, or make any payment in violation of any
subordination terms of, any Debt (each, a “prepayment”), except (i) prepayment of advances
under the Revolving Credit Facility in accordance with the terms thereof, (ii) the
prepayment of the Loans in accordance with the terms of this Agreement, (iii)
mandatory prepayments of the Debt under the Term Loan Facility in accordance
with the terms thereof, (iv) after the consummation of the Merger, prepayment
of any Debt of Elk or any of its Subsidiaries, (v) regularly scheduled or
required repayments or redemptions of Surviving Debt, (vi) prepayment of
the respective Debt with proceeds of a refinancing of such Debt permitted under
Section 5.02(b) and (vii) so long as, in each case, both at the time of
such payment and after giving pro forma effect thereto, no Default or Event of
Default shall have occurred and be continuing prepayment of Debt owing to G-I
Holdings or BMCA Holdings in an aggregate maximum principal amount of
$50,000,000; or, if the Loan Parties, the Administrative Agent or the Lenders
will be materially and adversely affected thereby, amend, modify or change in
any material manner any term or condition of any Surviving Debt or Subordinated
Debt, or permit any of its Subsidiaries to do any of the foregoing other than
to prepay any Debt payable to BMCA or any other Loan Party.


 


(k)           Amendment, Etc., of the Tax
Agreement. Except to the extent such action could not reasonably be
expected to result in a Material Adverse Effect, cancel or terminate the Tax
Agreement or consent to or accept any cancellation or termination thereof,
amend, modify or change in any manner any term or condition of any the Tax
Agreement or give any consent, waiver or approval thereunder, waive any default
under or any breach of any term or condition of the Tax Agreement, agree in any
manner to any other amendment, modification or change of any term or condition
of the Tax Agreement or take any other action in connection with the Tax
Agreement that would impair the value of the interest or rights of any Loan
Party thereunder or that would impair the rights or interests of any Agent or
any Lender, or permit any of its Subsidiaries to do any of the foregoing.


 


(l)            Negative Pledge. Enter into
or suffer to exist, or permit any of its Subsidiaries to enter into or suffer
to exist, any agreement prohibiting or conditioning the creation or assumption
of any Lien upon any of its property or assets except (i) in favor of the
Secured Parties or (ii) in connection with (A) any Surviving Debt,
(B) the Revolving Credit Facility, (C) the Senior Notes Indenture,
(D) the Term Loan Facility, (E) any purchase money Debt permitted by
Section 5.02(b)(iii)(B) solely to the extent that the agreement or
instrument governing such Debt prohibits a Lien on the property acquired with
the proceeds of such Debt, or (F) any Capitalized Lease permitted by
Section 5.02(b)(iii)(B) solely to the extent that such Capitalized Lease
prohibits a Lien on the property subject thereto.


 


(m)          Partnerships, Etc. Become a
general partner in any general or limited partnership or joint venture, or
permit any of its Subsidiaries to do so, other than any Subsidiary the sole
assets of which consist of its interest in such partnership or joint venture.


 


74
















 


(n)           Speculative Transactions.
Engage, or permit any of its Subsidiaries to engage, in any transaction
involving commodity options or futures contracts or any similar speculative
transactions.


 


(o)           Capital Expenditures. Make, or
permit any of its Subsidiaries to make, any Capital Expenditures that would
cause the aggregate of all such Capital Expenditures made by BMCA and its
Subsidiaries, (A) in calendar year 2007, to exceed $125,000,000 and in each
calendar year thereafter, $150,000,000 (the “Base CAPEX Basket”),
plus (B) in each calendar year the amount (if any) of the Base CAPEX Basket
which was not used during any preceding calendar year up to a maximum
carry-over under this clause (B) of $75,000,000.


 


(p)           Formation of Subsidiaries.
Organize or invest, or permit any of its Subsidiaries to organize or invest, in
any new Subsidiary except as permitted under Section 5.02(f).


 


(q)           Payment Restrictions Affecting
Subsidiaries. Directly or indirectly, enter into or suffer to exist, or
permit any of its Subsidiaries to enter into or suffer to exist, any agreement
or arrangement limiting the ability of any of its Subsidiaries to declare or
pay dividends or other distributions in respect of its Equity Interests or
repay or prepay any Debt owed to, make loans or advances to, or otherwise
transfer assets to or invest in, BMCA or any Subsidiary of BMCA (whether
through a covenant restricting dividends, loans, asset transfers or
investments, a financial covenant or otherwise), except (i) the Loan
Documents, (ii) the Revolving Credit Facility, (iii) the Senior Notes
Indenture, (iv) the Term Loan Facility and (v) any agreement or instrument
evidencing Surviving Debt.


 


(r)            Amendment, Etc., of Material
Contracts. Except to the extent such action could not reasonably be expected
to result in a Material Adverse Effect, cancel or terminate any Material
Contract or consent to or accept any cancellation or termination thereof, amend
or otherwise modify any Material Contract or give any consent, waiver or
approval thereunder, waive any default under or breach of any Material
Contract, agree in any manner to any other amendment, modification or change of
any term or condition of any Material Contract or take any other action in
connection with any Material Contract that would impair the value of the
interest or rights of any Loan Party thereunder or that would impair the
interest or rights of any Agent or any Lender, or permit any of its
Subsidiaries to do any of the foregoing.


 


(s)           Hedge Agreements. Become a
party to any Hedge Agreements other than non-speculative Hedge Agreements
entered into in the ordinary course of business and consistent with prudent
business practice to hedge against fluctuations in interest rates, commodity
prices and foreign exchange rates.


 


SECTION 5.03.      Reporting Requirements. So long as any
Loan or any other Obligation of any Loan Party under any Loan Document shall
remain unpaid or any Lender shall have any Bridge Loan Commitment hereunder,
BMCA will furnish to the Agents and the Lenders; provided,
however, that the financial statements
required to be delivered by BMCA pursuant to clauses (b) and (c) below and the
reports and statements required to be delivered by BMCA pursuant to clause (g)
below shall be deemed to have been delivered on the date when such reports
containing such financial statements or other materials are posted on the SEC’s
website on the internet at “www.sec.gov”;


 


75

















 


provided, further,
that BMCA shall deliver paper copies of such financial statements or other
materials to any Lender who so requests until BMCA receives written notice from
such Lender to cease delivering paper copies:


 


(a)           Default Notice. As soon as
possible and in any event within two days after the occurrence of each Default
or any event, development or occurrence reasonably likely to have a Material
Adverse Effect continuing on the date of such statement, a statement of the
chief financial officer of BMCA setting forth details of such Default and the
action that BMCA has taken and proposes to take with respect thereto.


 


(b)           Annual Financials. As soon as
available and in any event within 95 days after the end of each Fiscal Year, a
copy of the annual audit report for such year for BMCA and its Subsidiaries,
including therein a Consolidated balance sheet of BMCA and its Subsidiaries as
of the end of such Fiscal Year and a Consolidated statement of income and a
Consolidated statement of cash flows of BMCA and its Subsidiaries for such
Fiscal Year, in each case accompanied by an opinion acceptable to the Administrative
Agent of Ernst & Young LLP or other independent public accountants of
recognized standing acceptable to the Administrative Agent, together with (i) a
schedule, certified by a Responsible Financial Officer of BMCA, in form
reasonably satisfactory to the Administrative Agent setting forth (w) the Leverage
Ratio on the last day of such Fiscal Year, (x) the Interest Coverage Ratio for such
Fiscal Year, (y) the Capital Expenditures for such Fiscal Year, and (z) the computations
used by BMCA in determining compliance with the covenants contained in
Section 5.04, provided that
in the event of any change in generally accepted accounting principles used in
the preparation of such financial statements, BMCA shall also provide, if
necessary for the determination of any of (w), (x), (y) or (z) above, a
statement of reconciliation conforming such financial statements to GAAP and (ii) a
certificate of a Responsible Financial Officer of BMCA stating that no Event of
Default has occurred and is continuing or, if an Event of Default has occurred
and is continuing, a statement as to the nature thereof and the action that BMCA
has taken and proposes to take with respect thereto.


 


(c)           Quarterly Financials. As soon
as available and in any event within 50 days after the end of each of the first
three quarters of each Fiscal Year (i) so long as BMCA is a reporting
company under the Securities Act of 1934, as amended (a “Reporting
Company”), a copy of BMCA’s Form 10-Q filed with the Securities
and Exchange Commission for each such fiscal quarter and (ii) if BMCA is
not a Reporting Company at such time, then BMCA shall provide to the
Administrative Agent the unaudited Consolidated balance sheet of BMCA and its
Subsidiaries at the end of such quarter and the related unaudited Consolidated
statements of income and of cash flows for such quarter and the portion of the
Fiscal Year through end of such fiscal quarter, setting forth in each case in
comparative form the figures as of the end of and for the corresponding period
in the previous Fiscal Year, in each case duly certified (subject to normal
year-end audit adjustments) by a Responsible Financial Officer of BMCA as
having been prepared in accordance with GAAP, together with (1) a
certificate of said officer stating that no Event of Default has occurred and
is continuing or, if an Event of Default has occurred and is continuing, a
statement as to the nature thereof and the action that BMCA has taken and
proposes to take with respect thereto, and (2) a schedule to such certificate
in form reasonably satisfactory to the Administrative Agent setting forth (x)
the Leverage Ratio as of the last day of such fiscal quarter, (y) the Interest
Coverage Ratio for the four fiscal quarters of BMCA ending


 


76

















 


on the last day of such fiscal quarter, and (z) the computations
used by BMCA in determining compliance with the covenants contained in
Section 5.04, provided that
in the event of any change in generally accepted accounting principles used in
the preparation of such financial statements, BMCA shall also provide, if
necessary for the determination of any of (x), (y) or (z) above, a statement of
reconciliation conforming such financial statements to GAAP.


 


(d)           Business Plans and Annual
Forecasts. As soon as available and in any event not later than 90 days
after the end of each Fiscal Year, an annual business plan and forecasts
prepared by management of BMCA, in form satisfactory to the Administrative
Agent, of balance sheets, income statements and cash flow statements and
projected borrowing base availability on a monthly basis for the Fiscal Year
immediately following such Fiscal Year, together with narratives outlining the
material operating, investing and financing assumptions incorporated in such
forecasts.


 


(e)           Tax and Asbestos Litigation
Reports. Promptly upon the occurrence of a material event in connection
with (i) any tax proceeding involving, or any Federal income tax
liability, contingent or actual, of BMCA, any Loan Party, or any other member
of the G-I Holdings Tax Group, in connection with or arising out of the Rhone
Poulenc Transactions and (ii) asbestos litigation involving BMCA or any of
its Subsidiaries, provide a summary in form and substance reasonably
satisfactory to the Administrative Agent of such event.


 


(f)            Litigation. Promptly after BMCA
becomes aware of the commencement thereof, notice of all actions, suits,
investigations, litigation and proceedings before any Governmental Authority affecting
any Loan Party or any of its Subsidiaries of the type described in
Section 4.01(f), and promptly after the occurrence thereof, notice of any
material adverse change in the status or the financial effect on any Loan Party
or any of its Subsidiaries of the Disclosed Litigation from that described on
Schedule 4.01(f) hereto.


 


(g)           Securities Reports. Promptly
after the sending or filing thereof, copies of all proxy statements, financial
statements and reports that any Loan Party or any of its Subsidiaries sends to
its stockholders and are publicly available, and copies of all regular,
periodic and special reports, and all registration statements, that any Loan
Party or any of its Subsidiaries files with the Securities and Exchange
Commission or any governmental authority that may be substituted therefor, or
with any national securities exchange.


 


(h)           Creditor Reports. Promptly
after the furnishing thereof, copies of any statement or report furnished to
any holder of Debt securities of any Loan Party or of any of its Subsidiaries
pursuant to the terms of any indenture, loan or credit or similar agreement and
not otherwise required to be furnished to the Lenders pursuant to any other
clause of this Section 5.03.


 


(i)            ERISA. (i)  ERISA
Events and ERISA Reports. (A) Promptly and in any event within 10 days
after any Loan Party or any ERISA Affiliate knows or has reason to know that
any ERISA Event has occurred, a statement of the Chief Financial Officer of BMCA
describing such ERISA Event and the action, if any, that such Loan Party or
such ERISA Affiliate has taken and proposes to take with respect thereto and
(B) on the date any records,


 


77

















 


documents or other information must be furnished to the PBGC with respect
to any Plan pursuant to Section 4010 of ERISA, a copy of such records,
documents and information.


 


(ii)           Plan Terminations. Promptly
and in any event within two Business Days after receipt thereof by any Loan
Party or any ERISA Affiliate, copies of each notice from the PBGC stating its
intention to terminate any Plan or to have a trustee appointed to administer
any Plan.


 


(iii)          Multiemployer Plan Notices. Promptly
and in any event within five Business Days after receipt thereof by any Loan
Party or any ERISA Affiliate from the sponsor of a Multiemployer Plan, copies
of each notice concerning (A) the imposition of Withdrawal Liability by
any such Multiemployer Plan, (B) the reorganization or termination, within
the meaning of Title IV of ERISA, of any such Multiemployer Plan or
(C) the amount of liability incurred, or that may be incurred, by such
Loan Party or any ERISA Affiliate in connection with any event described in
clause (A) or (B).


 


(j)            Environmental Conditions. Promptly
after the assertion or occurrence thereof, notice of (i) any Environmental
Action against or of any noncompliance by any Loan Party or any of its
Subsidiaries with any Environmental Law or Environmental Permit that could
(A) reasonably be expected to have a Material Adverse Effect or
(B) cause any property described in the Mortgages to be subject to any
material restrictions on ownership, occupancy, use or transferability under any
Environmental Law assuming continued use for industrial purposes; or
(ii) any other matter or occurrence that may impact the number, scope,
import or substance of any Environmental Approval Action or the underlying
circumstances thereof.


 


(k)           Other Information. Such other
information respecting the business, properties, condition (financial or
otherwise) or operations of any Loan Party or any of its Subsidiaries as the
Administrative Agent, or any Lender through the Administrative Agent, may from time
to time reasonably request.


 


SECTION 5.04.      Financial Covenants. So long as any Loan
or any other Obligation of any Loan Party under any Loan Document shall remain
unpaid, or any Lender shall have any Bridge Loan Commitment hereunder, BMCA
shall


 


(a)           Interest Coverage Ratio. Maintain
as of the last day of each Fiscal Quarter listed below an Interest Coverage Ratio
for the four fiscal quarters ending on such day of not less than the ratio set
forth below opposite the respective Fiscal Quarter:


 




	
  Fiscal Quarter Ending

  	
   

  	
  Minimum Interest

  Coverage Ratio

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Second Fiscal
  Quarter in Fiscal Year 2008

  	
   

  	
  2.00 to 1

  	
   

  
	
  Third Fiscal
  Quarter in Fiscal Year 2008

  	
   

  	
  2.00 to 1

  	
   

  
	
  Fourth Fiscal
  Quarter in Fiscal Year 2008

  	
   

  	
  2.00 to 1

  	
   

  
	
  First Fiscal
  Quarter in Fiscal Year 2009

  	
   

  	
  2.25 to 1

  	
   

  
	
  Second Fiscal
  Quarter in Fiscal Year 2009

  	
   

  	
  2.50 to 1

  	
   

  
	
  Third Fiscal
  Quarter in Fiscal Year 2009

  	
   

  	
  2.50 to 1

  	
   

  






 


78

















 




	
  Fourth Fiscal
  Quarter in Fiscal Year 2009

  	
   

  	
  2.75 to 1

  	
   

  
	
  First Fiscal
  Quarter in Fiscal Year 2010

  	
   

  	
  2.75 to 1

  	
   

  
	
  Second Fiscal
  Quarter in Fiscal Year 2010

  	
   

  	
  2.75 to 1

  	
   

  
	
  Third Fiscal
  Quarter in Fiscal Year 2010 and each Fiscal Quarter thereafter

  	
   

  	
  3.00 to 1

  	
   

  






 


(b)           Leverage Ratio. Maintain as of
the last day of each Fiscal Quarter listed below a Leverage Ratio for the four
fiscal quarters ending on such day of not more than the ratio set forth below
opposite the respective Fiscal Quarter:


 




	
  Fiscal Quarter Ending

  	
   

  	
  Maximum Leverage

  Ratio

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Second Fiscal
  Quarter in Fiscal Year 2008

  	
   

  	
  5.75 to 1

  	
   

  
	
  Third Fiscal
  Quarter in Fiscal Year 2008

  	
   

  	
  5.75 to 1

  	
   

  
	
  Fourth Fiscal
  Quarter in Fiscal Year 2008

  	
   

  	
  5.25 to 1

  	
   

  
	
  First Fiscal
  Quarter in Fiscal Year 2009

  	
   

  	
  5.00 to 1

  	
   

  
	
  Second Fiscal
  Quarter in Fiscal Year 2009

  	
   

  	
  4.75 to 1

  	
   

  
	
  Third Fiscal
  Quarter in Fiscal Year 2009

  	
   

  	
  4.50 to 1

  	
   

  
	
  Fourth Fiscal
  Quarter in Fiscal Year 2009

  	
   

  	
  4.25 to 1

  	
   

  
	
  First Fiscal
  Quarter in Fiscal Year 2010

  	
   

  	
  4.00 to 1

  	
   

  
	
  Second Fiscal
  Quarter in Fiscal Year 2010

  	
   

  	
  4.00 to 1

  	
   

  
	
  Third Fiscal
  Quarter in Fiscal Year 2010 and each Fiscal Quarter thereafter

  	
   

  	
  3.75 to 1

  	
   

  






 


ARTICLE VI



EVENTS OF DEFAULT


 


SECTION 6.01.      Events of Default. If any of the following
events (“Events of Default”) shall
occur and be continuing:


 


(a)           (i) any Borrower shall fail to
pay any principal of any Bridge Loan or Rollover Loan when the same shall
become due and payable or (ii) any Borrower shall fail to pay any interest
on any Bridge Loan or Rollover Loan, or any Loan Party shall fail to make any
other payment under any Loan Document when due and payable; or


 


(b)           any representation or warranty made
by any Loan Party (or any of its officers) under or in connection with any Loan
Document shall prove to have been incorrect in any material respect when made;
or


 


(c)           any Borrower shall fail to perform or
observe any term, covenant or agreement contained in Section 2.12,
5.01(e), (f), (i) or (j), 5.02, 5.03(a), (b), (c), (d) or (i) or 5.04; or


 


79

















 


(d)           any Loan Party shall fail to perform
or observe any other term, covenant or agreement contained in any Loan Document
on its part to be performed or observed if such failure shall remain unremedied
for 15 days after the earlier of the date on which (i) a Responsible
Officer becomes aware of such failure or (ii) written notice thereof shall
have been given to BMCA by any Agent or any Lender; or


 


(e)           any Loan Party or any of its Subsidiaries
shall fail to pay any principal of, premium or interest on or any other amount
payable in respect of any Debt of such Loan Party or such Subsidiary (as the
case may be) that is outstanding in a principal amount of at least $37,500,000
either individually or in the aggregate for all such Loan Parties and
Subsidiaries (but excluding Debt outstanding hereunder), when the same becomes
due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement or instrument
relating to such Debt; or any other event shall occur or condition shall exist
under any agreement or instrument relating to any such Debt and shall continue
after the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or to
permit the acceleration of, the maturity of such Debt or otherwise to cause, or
to permit the holder thereof to cause, such Debt to mature; or any such Debt
shall be declared to be due and payable or required to be prepaid or redeemed
(other than by a regularly scheduled required prepayment or redemption),
purchased or defeased, or an offer to prepay, redeem, purchase or defease such
Debt shall be required to be made, in each case prior to the stated maturity
thereof; or


 


(f)            any Loan Party or any of its
Subsidiaries shall generally not pay its debts as such debts become due, or
shall admit in writing its inability to pay its debts generally, or shall make
a general assignment for the benefit of creditors; or any proceeding shall be
instituted by or against any Loan Party or any of its Subsidiaries seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition of
it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee or other similar official for
it or for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it) that is being
diligently contested by it in good faith, either such proceeding shall remain
undismissed or unstayed for a period of 60 days or any of the actions sought in
such proceeding (including the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official for, it
or any substantial part of its property) shall occur; or any Loan Party or any
of its Subsidiaries shall take any corporate action to authorize any of the
actions set forth above in this subsection (f); or


 


(g)           any judgments or orders (other than
in respect of the alleged Federal income tax liabilities of BMCA relating to or
arising out of the Rhone Poulenc Transactions or relating to the alleged
asbestos liabilities of BMCA), either individually or in the aggregate, for the
payment of money in excess of $37,500,000 shall be rendered against any Loan
Party or any of its Subsidiaries and either (i) enforcement proceedings
shall have been commenced by any creditor upon such judgment or order or
(ii) there shall be any period of 15 consecutive days during which a stay
of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; provided,
however, that any such judgment
or order shall not


 


80

















 


give rise to an Event of Default under this Section 6.01(g) if and
for so long as (A) the amount of such judgment or order is covered by a
valid and binding policy of insurance between the defendant and the insurer,
which shall be rated at least “A” by A.M. Best Company, covering full payment
thereof and (B) such insurer has been notified, and has not disputed the
claim made for payment, of the amount of such judgment or order; or


 


(h)           after the date hereof (i) any court
or governmental agency determines a tax liability or otherwise issues any
adverse ruling addressing the merits, proposes to or actually enters a
stipulated settlement or settlement notice, or makes or provides any
assessment, notice of intent to file a lien, or lien filing against any member of
the G-I Holdings Tax Group or any Loan Party with respect to the Rhone Poulenc
Transactions, and there shall be a period of 20 consecutive days after the
taking of such action during which time the Required Lenders shall not have
determined that there shall not exist, because of such action, a reasonable
likelihood that one or more of the Loan Parties will pay, satisfy, or receive
demand for payment of any tax liabilities relating to or arising out of the
Rhone Poulenc Transactions, or (ii) any court renders a judgment or order
against any Loan Party related to or arising out of the alleged asbestos
liabilities of BMCA and as a result of which it is reasonable to conclude that
the Loan Parties might be liable for such asbestos liabilities (it being understood
and agreed that any adverse ruling by the court in the DJ Action shall not,
solely by itself, constitute an Event of Default under this clause 6.01(h)(ii));
or


 


(i)            any non-monetary judgment or order
shall be rendered against any Loan Party or any of its Subsidiaries that could
be reasonably likely to have a Material Adverse Effect, and there shall be any
period of 20 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect; or


 


(j)            any provision of any Loan Document
after delivery thereof pursuant to Section 3.01 or 5.01(j) shall for any
reason cease to be valid and binding on or enforceable against any Loan Party
party to it, or any such Loan Party shall so state in writing; or


 


(k)           any Collateral Document or financing
statement after delivery thereof pursuant to Section 3.01 or 5.01(j) shall
for any reason (other than pursuant to or permitted by the terms of any Loan
Document) cease to create a valid and perfected first priority lien subject to
any Liens permitted by Section 5.02 on and security interest in the
Collateral purported to be covered thereby; or


 


(l)            any ERISA Event shall have occurred
with respect to a Plan and the sum (determined as of the date of occurrence of
such ERISA Event) of the Insufficiency of such Plan and the Insufficiency of
any and all other Plans with respect to which an ERISA Event shall have
occurred and then exist (or the liability of the Loan Parties and the ERISA
Affiliates related to such ERISA Event) exceeds (together with all other
liabilities described in Section 6.01(l), (m), and (n)) $10,000,000 in the
aggregate; or


 


(m)          any Loan Party or any ERISA Affiliate
shall have been notified by the sponsor of a Multiemployer Plan that it has
incurred Withdrawal Liability to such Multiemployer Plan in an amount that,
when aggregated with all other amounts required to be paid to Multiemployer
Plans by the Loan Parties and the ERISA Affiliates as Withdrawal Liability


 


81

















 


(determined as of the date of such notification), exceeds (together
with all other liabilities described in Section 6.01(l), (m), and (n)) $10,000,000
in the aggregate; or


 


(n)           any Loan Party or any ERISA Affiliate
shall have been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within the
meaning of Title IV of ERISA, and as a result of such reorganization or
termination the aggregate annual contributions of the Loan Parties and the
ERISA Affiliates to all Multiemployer Plans that are then in reorganization or
being terminated have been or will be increased over the amounts contributed to
such Multiemployer Plans for the plan years of such Multiemployer Plans
immediately preceding the plan year in which such reorganization or termination
occurs by an amount exceeding (together with all other liabilities described in
Section 6.01(l), (m), and (n)) $10,000,000 in the aggregate; or


 


(o)           any Federal tax Liens in respect of
the proposed Federal income tax liabilities of BMCA or any other member of the
G-I Holdings Tax Group relating to or arising out of the Rhone Poulenc
Transactions shall be created and be enforceable against the assets of any Loan
Party; or


 


(p)           the existing stay of the
asbestos-related litigation against BMCA granted in the G-I Holdings bankruptcy
proceedings shall have been terminated or amended or modified in a manner not
reasonably acceptable to the Administrative Agent, or there shall have occurred
a substantive consolidation of G-I Holdings with the assets and liabilities of BMCA
or any of the Guarantors in conjunction with the G-I Holdings bankruptcy
proceedings;


 


then, and in any such event, the Administrative Agent
(i) shall at the request, or may with the consent, of the Required Lenders,
by notice to BMCA, declare the Bridge Loan Commitments of each Lender and the
obligation of each Lender to make Loans to be terminated, whereupon the same
shall forthwith terminate and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to BMCA, declare the Loans, the
Notes, all interest thereon and all other amounts payable under this Agreement
and the other Loan Documents to be forthwith due and payable, whereupon the Loans,
the Notes, all such interest and all such amounts shall become and be forthwith
due and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by BMCA; provided, however, that in
the event of an actual or deemed entry of an order for relief with respect to BMCA
under the Federal Bankruptcy Code, (x) the Bridge Loan Commitments of each
Lender and the obligation of each Lender to make Loans shall automatically be
terminated and (y) the Loans, the Notes, all such interest and all such
amounts shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly
waived by each Borrower.


 


ARTICLE VII



THE AGENTS


 


SECTION 7.01.      Authorization
and Action. Each Lender hereby appoints and authorizes each Agent to enter into
such of the Loan Documents to which it is a party and to take such action as
agent on its behalf and to exercise such powers and discretion under this Agreement
and the other Loan Documents


 


82

















 


as are delegated to such Agent by the terms hereof and
thereof, together with such powers and discretion as are reasonably incidental
thereto. As to any matters not expressly provided for by the Loan Documents
(including enforcement or collection of the Notes), no Agent shall be required
to exercise any discretion or take any action, but shall be required to act or
to refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lenders and all holders of Notes; provided, however, that
no Agent shall be required to take any action that exposes such Agent to
personal liability or that is contrary to this Agreement or applicable law. Each
Agent agrees to give to each Lender prompt notice of each notice given to it by
BMCA pursuant to the terms of this Agreement.


 


SECTION 7.02.      Agents’
Reliance, Etc. Neither any Agent nor any of their respective directors,
officers, agents or employees shall be liable for any action taken or omitted
to be taken by it or them under or in connection with the Loan Documents,
except for its or their own gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, each Agent:  (a) may treat the payee of any Note as
the holder thereof until, in the case of the Administrative Agent, the
Administrative Agent receives and accepts an Assignment and Acceptance entered
into by the Lender that is the payee of such Note, as assignor, and an Eligible
Assignee, as assignee, or, in the case of any other Agent, such Agent has
received notice from the Administrative Agent that it has received and accepted
such Assignment and Acceptance, in each case as provided in Section 8.07;
(b) may consult with legal counsel (including counsel for any Loan Party),
independent public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts;
(c) makes no warranty or representation to any Lender and shall not be
responsible to any Lender for any statements, warranties or representations
(whether written or oral) made in or in connection with the Loan Documents;
(d) shall not have any duty to ascertain or to inquire as to the
performance, observance or satisfaction of any of the terms, covenants or
conditions of any Loan Document on the part of any Loan Party or the existence
at any time of any Default under the Loan Documents or to inspect the property
(including the books and records) of any Loan Party; (e) shall not be
responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; and (f) shall incur no liability
under or in respect of any Loan Document by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telecopy) believed
by it to be genuine and signed or sent by the proper party or parties.


 


SECTION 7.03.      DBCA
and Affiliates. With respect to its Bridge Loan Commitments, the Bridge Loans or
Rollover Loans made by it and the Notes issued to it, DBCA shall have the same
rights and powers under the Loan Documents as any other Lender and may exercise
the same as though it were not an Agent; and the term “Lender” or “Lenders”
shall, unless otherwise expressly indicated, include DBCA in its individual
capacity as such. DBCA and its affiliates may accept deposits from, lend money
to, act as trustee under indentures of, accept investment banking engagements
from and generally engage in any kind of business with, any Loan Party, any of
its Subsidiaries and any Person that may do business with or own securities of
any Loan Party or any such Subsidiary, all as if DBCA was not an Agent and
without any duty to account therefor to the Lenders. No Agent shall have any
duty to disclose any information obtained or received


 


83

















 


by it or any of its Affiliates relating to any Loan
Party or any of its Subsidiaries to the extent such information was obtained or
received in any capacity other than as such Agent.


 


SECTION 7.04.      Lender
Credit Decision. Each Lender acknowledges that it has, independently and
without reliance upon any Agent or any other Lender and based on the financial
statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon any Agent or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement.


 


SECTION 7.05.      Indemnification.
(a)  Each Lender severally agrees to
indemnify each Agent (to the extent not promptly reimbursed by the Borrowers)
from and against such Lender’s Pro Rata Share of any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against such Agent in any way relating to or
arising out of the Loan Documents or any action taken or omitted by such Agent
under the Loan Documents (collectively, the “Indemnified
Costs”); provided, however, that no Lender shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from such Agent’s gross
negligence or willful misconduct. Without limitation of the foregoing, each Lender
agrees to reimburse each Agent promptly upon demand for its ratable share of any
costs and expenses (including fees and expenses of counsel) payable by the
Borrowers under Section 8.04, to the extent that such Agent is not
promptly reimbursed for such costs and expenses by the Borrowers. In the case
of any investigation, litigation or proceeding giving rise to any Indemnified
Costs, this Section 7.05 applies whether any such investigation,
litigation or proceeding is brought by any Lender or any other Person.


 


(b)           The
failure of any Lender to reimburse any Agent promptly upon demand for its
ratable share of any amount required to be paid by the Lenders to such Agent as
provided herein shall not relieve any other Lender of its obligation hereunder
to reimburse such Agent for its ratable share of such amount, but no Lender
shall be responsible for the failure of any other Lender to reimburse such
Agent for such other Lender’s ratable share of such amount. Without prejudice
to the survival of any other agreement of any Lender hereunder, the agreement
and obligations of each Lender contained in this Section 7.05 shall
survive the payment in full of principal, interest and all other amounts
payable hereunder and under the other Loan Documents.


 


SECTION 7.06.      Successor
Agents. Any Agent may resign at any time by giving written notice thereof to
the Lenders and BMCA and may be removed at any time with or without cause by
the Required Lenders; provided, however, that any removal of the
Administrative Agent will not be effective until it has also been replaced as Collateral
Agent and released from all of its obligations in respect thereof (other than
obligations resulting from its gross negligence or willful misconduct). Upon
any such resignation or removal, the Required Lenders shall have the right to
appoint a successor Agent. If no successor Agent shall have been so appointed
by the Required Lenders, and shall have accepted such appointment, within 30
days after the retiring Agent’s giving of notice of resignation or the Required
Lenders’ removal of the retiring Agent, then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent, which shall be a commercial bank
organized under the laws of the United States or of any State thereof and
having a


 


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combined capital and surplus of at least $250,000,000.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent
and, in the case of a successor Collateral Agent, upon the execution and filing
or recording of such financing statements, or amendments thereto, and such
amendments or supplements to the Mortgages, and such other instruments or
notices, as may be necessary or desirable, or as the Required Lenders may
request, in order to continue the perfection of the Liens granted or purported
to be granted by the Collateral Documents, such successor Agent shall succeed
to and become vested with all the rights, powers, discretion, privileges and
duties of the retiring Agent, and the retiring Agent shall be discharged from
its duties and obligations under the Loan Documents (other than duties and
obligations resulting from its gross negligence or willful misconduct). If
within 45 days after written notice is given of the retiring Agent’s
resignation or removal under this Section 7.06, no successor Agent shall
have been appointed and shall have accepted such appointment, then on such 45th
day (a) the retiring Agent’s resignation or removal shall become
effective, (b) the retiring Agent shall thereupon be discharged from its
duties and obligations under the Loan Documents (other than duties and
obligations resulting from its gross negligence or willful misconduct) and
(c) the Required Lenders shall thereafter perform all duties of the
retiring Agent under the Loan Documents until such time, if any, as the Required
Lenders appoint a successor Agent as provided above. After any retiring Agent’s
resignation or removal hereunder as Agent shall have become effective, the
provisions of this Article VII shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement.


 


SECTION 7.07.      Appointment
of Supplemental Collateral Agents. It is the purpose of this Agreement and the
other Loan Documents that there shall be no violation of any law of any
jurisdiction denying or restricting the right of banking corporations or
associations to transact business as agent or trustee in such jurisdiction. It
is recognized that in case of litigation under this Agreement or any of the
other Loan Documents, and in particular in case of the enforcement of any of
the Loan Documents, or in case the Administrative Agent deems that by reason of
any present or future law of any jurisdiction it may not exercise any of the
rights, powers or remedies granted herein or in any of the other Loan Documents
or take any other action which may be desirable or necessary in connection
therewith, it may be necessary that the Administrative Agent appoint an
additional individual or institution as a separate trustee, co-trustee, collateral
agreement agent, collateral agent, collateral sub-agent or collateral co-agent
(any such additional individual or institution being referred to herein
individually as a “Supplemental Collateral Agent”
and collectively as “Supplemental Collateral
Agents”).


 


(b)           In the event that the Administrative
Agent appoints a Supplemental Collateral Agent with respect to any Collateral,
(i) each and every right, power, privilege or duty expressed or intended by this Agreement or any of
the other Loan Documents to be exercised by or vested in or conveyed to the
Administrative Agent with respect to such Collateral shall be exercisable by
and vest in such Supplemental Collateral Agent to the extent, and only to the
extent, necessary to enable such Supplemental Collateral Agent to exercise such
rights, powers and privileges with respect to such Collateral and to perform
such duties with respect to such Collateral, and every covenant and obligation
contained in the Loan Documents necessary to the exercise or performance
thereof by such Supplemental Collateral
Agent shall run to and be enforceable by either the Administrative Agent
or such Supplemental Collateral Agent, and (ii) the provisions of this
Article and of Section 8.04 that refer to the Administrative Agent shall
inure to the benefit of such Supplemental Collateral Agent and all references
therein to the


 


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Administrative
Agent shall be deemed to be references to the Administrative Agent and/or such
Supplemental Collateral Agent, as the context may require.


 


(c)           Should
any instrument in writing from any Loan Party be reasonably required by any Supplemental Collateral Agent
so appointed by the Administrative Agent for more fully and certainly vesting
in and confirming to him or it such rights, powers, privileges and duties, such Loan Party shall execute, acknowledge
and deliver any and all such instruments promptly upon request by the
Administrative Agent. In case any Supplemental Collateral Agent, or a successor
thereto, shall die, become incapable of acting, resign or be removed, all the
rights, powers, privileges and duties of such Supplemental Collateral Agent, to
the extent permitted by law, shall vest in and be exercised by the
Administrative Agent until the appointment of a new Supplemental Collateral Agent.


 


SECTION 7.08.      The
Joint Lead Arrangers. It is understood and agreed by all parties hereto that
the Joint Lead Arrangers shall not have any rights, powers, duties or
responsibilities in such capacity under this Agreement (nor shall any such
rights, powers, duties or responsibilities be read into this Agreement or any
other Loan Document), and shall have no liability for any actions taken or not
taken in such capacity in connection with this Agreement or the other Loan
Documents.


 


ARTICLE VIII



MISCELLANEOUS


 


SECTION 8.01.      Amendments,
Etc. (a)  No amendment or waiver of any
provision of this Agreement or the Notes or any other Loan Document (other than
the Loan Documents referred to in clause (ii) and (v) of the definition
thereof, which may be amended in accordance with the terms thereof), nor
consent to any departure by any Loan Party therefrom, shall in any event be
effective unless the same shall be in writing and signed (or, in the case of
the Guaranty and the Collateral Documents, consented to) by the Required
Lenders, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided, however, that
no amendment, waiver or consent shall, unless in writing and signed by all of
the Lenders, do any of the following at any time:  (i) waive any of the conditions
specified in Section 3.01, (ii) change the number of Lenders or the
percentage of the aggregate unpaid principal amount of the Loans that shall be
required for the Lenders or any of them to take any action hereunder, (iii) reduce
or limit the obligations of any Guarantor under Section 1 of the Guaranty
issued by it or release such Guarantor or otherwise limit such Guarantor’s
liability with respect to the Obligations owing to the Agents and the Lenders
(other than, in the case of any Guarantor, to the extent permitted under the Guaranty),
(iv) release all or substantially all of the Collateral in any transaction
or series of related transactions, (v) amend Section 2.11 or this
Section 8.01, (vi) increase the Bridge Loan Commitments of the
Lenders, (vii) reduce the principal of, or interest on, the Notes or any
fees or other amounts payable hereunder, (viii) postpone any date
scheduled for any payment of principal of, or interest on, the Notes pursuant
to Section 2.03 or 2.06 or any date fixed for payment of fees or other
amounts payable hereunder or (ix) limit the liability of any Loan Party under
any of the Loan Documents; provided further
that no amendment, waiver or consent shall, unless in writing and signed by an
Agent in addition to the Lenders required above to take such action, affect the
rights or duties of such Agent under this Agreement or the other Loan
Documents.


 


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(b)           In
the event that any Lender fails to consent to any amendment, modification or
waiver that requires the consent of all of the Lenders (other than any Lender
that is, at such time, a Defaulting Lender) where the Required Lenders have
approved such amendment, modification or waiver (a “Non-Consenting Lender”), then (subject to (i) such Lender’s
right to rescind such demand or assertion within five days after the notice
from the Borrowers referred to below or (ii) such Non-Consenting Lender
consenting to such amendment, modification or waiver within those five days)  the Borrowers may, upon five Business Days’
prior written notice to such Lender and the Administrative Agent, elect to
cause such Lender to assign its Loans in full to one or more Persons selected
by the Borrowers so long as (a) each such Person satisfies the criteria of an
Eligible Assignee and is reasonably satisfactory to the Administrative Agent,
(b) such Lender receives payment in full in cash of the outstanding principal
amount of all Loans made by it and all accrued and unpaid interest thereon and
all other amounts due and payable to such Lender as of the date of such
assignment (including amounts owing pursuant to Sections 2.08 or 2.10 and 8.04) and (c) each such Lender
assignee agrees to accept such assignment and to assume all obligations of such
Lender hereunder in accordance with Section
8.07.


 


SECTION 8.02.      Notices,
Etc. (a)  Unless otherwise expressly
provided herein, all notices and other communications provided for hereunder
shall be in writing (including by facsimile transmission). All such written
notices shall be mailed certified or registered mail, faxed or delivered to the
applicable address, facsimile number or (subject to subsection (b) below)
electronic mail address, and all notices and other communications expressly
permitted hereunder to be given by telephone shall be made to the applicable
telephone number, as follows:


 


(i)            if to any Borrower,
any Agent, to the address, facsimile number, electronic mail address or
telephone number specified for such Person on Schedule 8.02 or to such other
address, facsimile number, electronic mail address or telephone number as shall
be designated by such party in a written notice to the other parties; and


 


(ii)           if to any other
Lender, to the address, facsimile number, electronic mail address or telephone
number as shall be designated by such party in a notice to BMCA or the
Administrative Agent.


 


Notices
sent by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices sent by
facsimile shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall, unless the Administrative Agent
otherwise prescribes, be deemed to have been given (i) in the case of
notices and other communications sent to an email address, upon the sender’s
receipt of an acknowledgement from the intended recipient (such as by the “return
receipt requested” function, as available, return email or other written
acknowledgement), provided that if such notice or other communication is not
sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) in the case of notices
or communications posted to an Internet or intranet website, upon the deemed
receipt by the intended recipient at its email address as described in the
foregoing clause (i) of


 


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notification that such notice or communication is available and
identifying the website address therefor.


 


(b)           Notices
and other communications to the Lenders hereunder may be delivered or furnished
by electronic communication (including email and Internet or intranet websites)
pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to
any Lender if such Lender has notified the Administrative Agent that it is
incapable of receiving notices by electronic communication. The Administrative
Agent or the Borrowers may, in their discretion, agree to accept notices and
other communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that
approval of such procedures may be limited to particular notices or
communications.


 


(c)           Loan
Documents may be transmitted and/or signed by facsimile. The effectiveness of
any such documents and signatures shall, subject to applicable law, have the
same force and effect as manually-signed originals and shall be binding on all
Loan Parties, the Agents, and the Lenders. The Administrative Agent may also
require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the failure to request or deliver the same
shall not limit the effectiveness of any facsimile document or signature.


 


(d)           Each
Agent and the Lenders shall each be entitled to rely and act upon any notices (including
a telephonic Notice of Borrowing) believed by it in good faith to have been
given by or on behalf of the Borrowers even if (i) such notices were not
made in a manner specified herein, were incomplete or were not preceded or
followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation thereof. The
Borrowers, jointly and severally, agree to indemnify each Agent and each Lender
from all losses, costs, expenses and liabilities resulting from the reliance by
such Person on each notice believed by the respective such Person in good faith
to have been given by or on behalf of any Borrower or any other Loan Party. All
telephonic notices to and other communications with the Administrative Agent
may be recorded by the Administrative Agent, and each of the parties hereto
hereby consents to such recording. In addition, the Borrowers hereby waive the
right to dispute the Administrative Agent’s record of the terms of such
telephonic notice of a Bridge Loan Borrowing or prepayment of Loans (absent manifest
error).


 


SECTION 8.03.      No
Waiver; Remedies. No failure on the part of any Lender or any Agent to
exercise, and no delay in exercising, any right hereunder or under any Note or
any other Loan Document shall operate as a waiver thereof; nor shall any single
or partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.


 


SECTION 8.04.      Costs
and Expenses. (a)  The Borrowers agree,
jointly and severally, to pay on demand (i) all reasonable out of pocket
costs and expenses of the Administrative Agent in connection with the
preparation, execution, delivery, administration, modification and amendment
of, or any consent or waiver under, the Loan Documents (including (A) all
due diligence, collateral review, syndication (including printing, distribution
and bank meetings), transportation, computer, duplication, messenger,
appraisal, audit, insurance, consultant, search, filing and recording fees


 


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and expenses and (B) the reasonable fees and
expenses of one set (including one main law firm and such additional special or
local counsel as may be reasonably required) counsel for each Agent with
respect thereto, with respect to advising such Agent as to its rights and
responsibilities, or the perfection, protection or preservation of rights or
interests, under the Loan Documents, with respect to negotiations with any Loan
Party or with other creditors of any Loan Party or any of its Subsidiaries
arising out of any Event of Default or any events or circumstances that may
give rise to an Event of Default and with respect to presenting claims in or
otherwise participating in or monitoring any bankruptcy, insolvency or other
similar proceeding involving creditors’ rights generally and any proceeding
ancillary thereto) and (ii) all out of pocket costs and expenses of each
Agent, and each Lender in connection with the enforcement of the Loan
Documents, whether in any action, suit or litigation, or any bankruptcy,
insolvency or other similar proceeding affecting creditors’ rights generally
(including the reasonable fees and expenses of counsel for the Administrative
Agent, and each Lender with respect thereto).


 


(b)           The
Borrowers, jointly and severally, agree to indemnify, defend and save and hold
harmless each Agent, each Lender and each of their Affiliates and their
respective officers, directors, employees, agents, advisors, attorneys and
representatives (each, an “Indemnified
Party”) from and against, and shall pay on demand, any and all
claims, damages, losses, liabilities and expenses (including fees and expenses
of counsel), joint or several, that may be incurred by or asserted or awarded
against any Indemnified Party, in each case arising out of or in connection
with or by reason of (including in connection with any investigation,
litigation or proceeding or preparation of a defense in connection therewith)
(i) this Agreement, the actual or proposed use of the proceeds of the Loans,
the Transaction Documents or any of the transactions contemplated thereby,
including any acquisition or proposed acquisition (including the
transactions contemplated hereunder) by the Borrowers or any of their Subsidiaries
or Affiliates of all or any portion of the Equity Interests in or Debt
securities or substantially all of the assets of any Person or (ii) the
actual or alleged presence of Hazardous Materials on any property of any Loan
Party or any of its Subsidiaries or any Environmental Action relating in any
way to any Loan Party or any of its Subsidiaries, except to the extent such
claim, damage, loss, liability or expense is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from such
Indemnified Party’s gross negligence or willful misconduct. In the case of an
investigation, litigation or other proceeding to which the indemnity in this
Section 8.04(b) applies, such indemnity shall be effective whether or not
such investigation, litigation or proceeding is brought by any Loan Party, its
directors, shareholders or creditors or an Indemnified Party or any other
Person, whether or not any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereunder are consummated except
to the extent such claim, damage, loss, liability or expense is found in a
final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party’s gross negligence or willful misconduct. The
Borrowers also agree not to assert any claim against any Agent, any Lender or
any of their Affiliates, or any of their respective officers, directors,
employees, agents and advisors, on any theory of liability, for special,
indirect, consequential or punitive damages arising out of or otherwise
relating to this Agreement, the actual or proposed use of the proceeds of the Loans,
the Transaction Documents or any of the transactions contemplated by the
Transaction Documents.


 


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(c)           No
Indemnified Party shall have any liability (whether direct or indirect, in
contract, tort or otherwise) to any Borrower or its Subsidiaries, or any
shareholders or creditors of the foregoing for or in connection with
transactions contemplated hereby, except to the extent such liability is found
in a final non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party’s gross negligence or willful misconduct. In
no event, however, shall any Indemnified Party be liable on any theory of
liability for any special, indirect, consequential or punitive damages
(including any loss of profits, business or anticipated savings).


 


(d)           If
any payment of principal is made to or for the account of a Lender other than
on the last day of the Interest Period for a Loan, as a result of a payment
pursuant to Section 2.05 or 2.08(d), acceleration of the maturity of the Loans
pursuant to Section 6.01 or for any other reason, or if the Borrowers fail
to make any payment or prepayment of a Loan for which a notice of prepayment
has been given or that is otherwise required to be made, whether pursuant to
Section 2.03 or 6.01 or otherwise, the Borrowers, jointly and severally,
agree, upon demand by such Lender (with a copy of such demand to the
Administrative Agent), to pay to the Administrative Agent for the account of
such Lender any amounts required to compensate such Lender for any additional
losses, costs or expenses that it may reasonably incur as a result of such
payment or such failure to pay or prepay, as the case may be, including any
loss (including loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired
by any Lender to fund or maintain such Loan.


 


(e)           If
any Loan Party fails to pay when due any costs, expenses or other amounts
payable by it under any Loan Document, including fees and expenses of counsel
and indemnities, such amount may be paid on behalf of such Loan Party by the
Administrative Agent or any Lender, in its sole discretion, exercised
reasonably.


 


(f)            Without
prejudice to the survival of any other agreement of any Loan Party hereunder or
under any other Loan Document, the agreements and obligations of the Borrowers
contained in Sections 2.08 and 2.10 and this Section 8.04 shall survive
the payment in full of principal, interest and all other amounts payable
hereunder and under any of the other Loan Documents.


 


SECTION 8.05.      Right
of Set-off. Upon (a) the occurrence and during the continuance of any
Event of Default and (b) the making of the request or the granting of the
consent specified by Section 6.01 to authorize the Administrative Agent to
declare the Loans, due and payable pursuant to the provisions of
Section 6.01, each Agent and each Lender and each of their respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and otherwise apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Agent, such Lender or
such Affiliate to or for the credit or the account of any Borrower against any
and all of the Obligations of any Borrower now or hereafter existing under the
Loan Documents, irrespective of whether such Agent or such Lender shall have
made any demand under this Agreement or such Note or Notes and although such
Obligations may be unmatured. Each Agent and each Lender agrees promptly to
notify BMCA after any such set-off and application; provided, however, that the failure to give such notice shall not
affect the validity of such set-off and


 


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application. The rights of each Agent and each Lender
and their respective Affiliates under this Section are in addition to other
rights and remedies (including other rights of set-off) that such Agent, such Lender
and their respective Affiliates may have.


 


SECTION 8.06.      Binding
Effect. This Agreement shall become effective when it shall have been executed
by the Borrowers and each Agent and the Administrative Agent shall have been
notified by each Initial Lender that such Initial Lender has executed it and
thereafter shall be binding upon and inure to the benefit of the Borrowers,
each Agent and each Lender and their respective successors and assigns, except
that the Borrowers shall not have the right to assign their rights hereunder or
any interest herein without the prior written consent of each of the Lenders.


 


SECTION 8.07.      Assignments
and Participations. (a)  Each Lender may,
upon at least five Business Days’ notice to such Lender and the Administrative
Agent, assign to one or more Eligible Assignees all or a portion of its rights
and obligations under this Agreement (including all or a portion of its Bridge
Loan Commitment, the Loans owing to it and the Note or Notes held by it); provided, however, that
(i) each such assignment shall be of a uniform, and not a varying, percentage
of all rights and obligations under this Agreement, (ii) except in the
case of an assignment to a Person that, immediately prior to such assignment,
was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or
an assignment of all of a Lender’s rights and obligations under this Agreement,
the aggregate amount of the Bridge Loan Commitments or Loans being assigned to
such Eligible Assignee pursuant to such assignment (determined as of the date
of the Assignment and Acceptance with respect to such assignment) shall in no
event be less than $5,000,000 (or such lesser amount as shall be approved by
the Administrative Agent and, so long as no Default shall have occurred and be
continuing at the time of effectiveness of such assignment, BMCA),
(iii) each such assignment shall be to an Eligible Assignee,
(iv) except in the case of an assignment by a Person that, immediately
prior to such assignment, was a Lender, to one of its Affiliates, no such
assignments shall be permitted without the consent of the Administrative Agent
and, so long as no Default shall have occurred and be continuing at the time of
effectiveness of such assignment, BMCA (in each case, which consents shall not
be unreasonably withheld) and (v) the parties to each such assignment
shall execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with any Note
or Notes subject to such assignment and a processing and recordation fee of
$3,500.


 


(b)           Upon
such execution, delivery, acceptance and recording, from and after the
effective date specified in such Assignment and Acceptance, (i) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and
(ii) the Lender assignor thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights (other than its rights under Sections 2.08,
2.10 and 8.04 to the extent any claim thereunder relates to an event arising
prior to such assignment) and be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the
remaining portion of an assigning Lender’s rights and obligations under this
Agreement, such Lender shall cease to be a party hereto).


 


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(c)           By
executing and delivering an Assignment and Acceptance, each Lender assignor
thereunder and each assignee thereunder confirm to and agree with each other
and the other parties thereto and hereto as follows:  (i) other than as provided in such
Assignment and Acceptance, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with any Loan Document
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of, or the perfection or priority of any lien or security interest
created or purported to be created under or in connection with, any Loan
Document or any other instrument or document furnished pursuant thereto;
(ii) such assigning Lender makes no representation or warranty and assumes
no responsibility with respect to the financial condition of any Loan Party or
the performance or observance by any Loan Party of any of its obligations under
any Loan Document or any other instrument or document furnished pursuant
thereto; (iii) such assignee confirms that it has received a copy of this
Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon any Agent, such assigning Lender or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes each Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under the Loan Documents as are delegated to such Agent by the terms hereof and
thereof, together with such powers and discretion as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance
with their terms all of the obligations that by the terms of this Agreement are
required to be performed by it as a Lender.


 


(d)           The
Administrative Agent acting for this purpose (but only for this purpose) as the
agent of the Borrowers, shall maintain at its address referred to in
Section 8.02 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lenders and the Bridge Loan Commitment of, and principal amount of the Loans
to, each Lender from time to time (the “Register”). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and
the Borrowers, the Agents and the Lenders shall treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrowers or
any Agent or any Lender at any reasonable time and from time to time upon
reasonable prior notice.


 


(e)           Notwithstanding
anything to the contrary contained in clause (b) above, the Loans
(including the Notes evidencing such Loans) are registered obligations and the
right, title, and interest of the Lenders and their assignees in and to such Loans
shall be transferable only upon notation of such transfer in the Register. A
Note shall only evidence the Lender’s or an assignee’s right title and interest
in and to the related Loan, and in no event is any such Note to be considered a
bearer instrument or obligation. This Section 8.07 shall be construed so
that the Loans are at all times maintained in “registered
form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2)
of the Internal Revenue Code and any related regulations (or any successor
provisions of the Internal Revenue Code or such regulations).


 


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Solely for purposes of this and for tax purposes only, the
Administrative Agent shall act as each Borrower’s agent for purposes of
maintaining such notations of transfer in the Register.


 


(f)            Upon
its receipt of an Assignment and Acceptance executed by an assigning Lender and
an assignee, together with any Note or Notes subject to such assignment, the
Administrative Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit C hereto,
(i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to BMCA and each other Agent. In the case of any assignment by a
Lender, within five Business Days after its receipt of such notice, the
Borrowers, at their own expense, shall, if requested by the assignee, execute
and deliver to the Administrative Agent in exchange for the surrendered Note or
Notes an amended and restated Note (which shall be marked “Amended and Restated”)
to the order of such Eligible Assignee in an amount equal to the Loan assumed
by it under this Agreement pursuant to such Assignment and Acceptance and, if
any assigning Lender has retained a Loan hereunder under this Agreement and has
requested a replacement Note, an amended and restated Note to the order of such
assigning Lender in an amount equal to the Loan retained by it hereunder. Such
amended and restated Note or Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered Note or Notes,
shall be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit A-1 or A-2 hereto, as
the case may be.


 


(g)           Each
Lender may sell participations to one or more Persons (other than any Loan
Party or any of its Affiliates) in or to all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Bridge Loan
Commitments, the Loans owing to it and the Note or Notes (if any) held by it); provided, however, that
(i) such Lender’s obligations under this Agreement (including its Bridge
Loan Commitments) shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender shall remain the holder of any such Note
for all purposes of this Agreement, (iv) the Borrowers, the Agents and the
other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement and
(v) no participant under any such participation shall have any right to
approve any amendment or waiver of any provision of any Loan Document, or any
consent to any departure by any Loan Party therefrom, except to the extent that
such amendment, waiver or consent requires the consent of all Lenders.


 


(h)           Any
Lender may, in connection with any assignment or participation or proposed
assignment or participation pursuant to this Section 8.07, disclose to the
assignee or participant or proposed assignee or participant any information
relating to the Borrowers furnished to such Lender by or on behalf of the
Borrowers; provided, however,
that, prior to any such disclosure, the assignee or participant or proposed
assignee or participant shall agree to preserve the confidentiality of any
Confidential Information received by it from such Lender in accordance with the
terms of Section 8.09.


 


(i)            Notwithstanding
any other provision set forth in this Agreement, any Lender may at any time
create a security interest in all or any portion of its rights under this
Agreement (including the Loans owing to it and the Note or Notes held by it) in
favor of any


 


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Federal Reserve Bank in accordance with Regulation A of the Board
of Governors of the Federal Reserve System.


 


(j)            Notwithstanding
anything to the contrary contained herein, any Lender that is a fund that
invests in bank loans may create a security interest in all or any portion of
the Loans owing to it and the Note or Notes held by it to the trustee for
holders of obligations owed, or securities issued, by such fund as security for
such obligations or securities, provided, that unless and until such trustee
actually becomes a Lender in compliance with the other provisions of this
Section 8.07, (i) no such pledge shall release the pledging Lender
from any of its obligations under the Loan Documents and (ii) such trustee
shall not be entitled to exercise any of the rights of a Lender under the Loan
Documents even though such trustee may have acquired ownership rights with respect
to the pledged interest through foreclosure or otherwise.


 


(k)           Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose
funding vehicle identified as such in writing from time to time by the Granting
Lender to the Administrative Agent and BMCA (an “SPC”) the option to provide all or
any part of any Loan that such Granting Lender would otherwise be obligated to
make pursuant to this Agreement, provided
that (i) nothing herein shall constitute a commitment by any SPC to fund
any Loan, and (ii) if an SPC elects not to exercise such option or
otherwise fails to make all or any part of such Loan, the Granting Lender shall
be obligated to make such Loan pursuant to the terms hereof. The making of a Loan
by an SPC hereunder shall utilize the Bridge Loan Commitment of the Granting
Lender to the same extent, and as if, such Bridge Loan were made by such
Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be
liable for any indemnity or similar payment obligation under this Agreement for
which a Lender would be liable, (ii) no SPC shall be entitled to the
benefits of Sections 2.08 and 2.10 (or any other increased costs protection
provision) and (iii) the Granting Bank shall for all purposes, including
the approval of any amendment or waiver of any provision of any Loan Document,
remain the Lender of record hereunder. In furtherance of the foregoing, each
party hereto hereby agrees (which agreement shall survive the termination of
this Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior Debt of any
SPC, it will not institute against, or join any other person in instituting
against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or
liquidation proceeding under the laws of the United States or any State thereof.
Notwithstanding anything to the contrary contained in this Agreement, any SPC
may (i) with notice to, but without prior consent of, BMCA and the
Administrative Agent and with the payment of a processing fee of $500 and
without paying any processing fee therefor, assign all or any portion of its
interest in any Loan to the Granting Lender and (ii) disclose on a
confidential basis any non-public information relating to its funding of a Loan
to any rating agency, commercial paper dealer or provider of any surety or
guarantee or credit or liquidity enhancement to such SPC. This
subsection (k) may not be amended without the prior written consent of
each Granting Lender, all or any part of whose Loans are being funded by the
SPC at the time of such amendment.


 


SECTION 8.08.      Execution
in Counterparts. This Agreement may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement. Delivery by telecopier or
electronic mail of an executed counterpart of a signature


 


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page to this Agreement shall be effective as delivery
of an original executed counterpart of this Agreement.


 


SECTION 8.09.      Confidentiality.
Neither any Agent nor any Lender shall disclose any Confidential Information to
any Person without the consent of BMCA, other than (a) to such Agent’s or
such Lender’s Affiliates and their officers, directors, employees, accountants,
attorneys, agents and other advisors (collectively, “Lender Representatives”)
and to actual or prospective Eligible Assignees and participants, and then only
on a confidential basis, (b) as required by any law, rule or regulation or
judicial process, (c) as requested or required by any state, Federal or
foreign authority or examiner (including the National Association of Insurance
Commissioners or any similar organization or quasi-regulatory authority)
regulating such Lender, (d) to any rating agency when required by it, provided that, prior to any such disclosure, such rating
agency shall undertake to preserve the confidentiality of any Confidential
Information relating to the Loan Parties received by it from such Lender,
(e) in connection with any litigation or proceeding to which such Agent or
such Lender or any of its Affiliates may be a party to the extent required or
requested to so disclose by the applicable Governmental Authority or
(f) in connection with the exercise of any right or remedy under this
Agreement or any other Loan Document. Notwithstanding anything herein to the
contrary, any Agent or Lender may disclose to any and all persons, without
limitation of any kind, the U.S. tax treatment and tax structure of the
transactions as contemplated hereunder and all materials of any kind (including
opinions or other tax analyses) that are provided to such Agent or Lender,
relating to such U.S. tax treatment and tax structure.


 


SECTION 8.10.      Release
or Subordination of Collateral/Release of Guarantor. Upon the sale, lease,
transfer or other disposition of any item of Collateral or the incurrence of Liens
permitted under Section 5.02 (a)(iv) or 5.02(a)(v) (including as a result of
the sale, in accordance with the terms of the Loan Documents, of the Loan Party
that owns such Collateral and as a result of the designation by any Loan Party after
the Closing Date of any of its Subsidiaries as a Non-Recourse Subsidiary) in
accordance with the terms of the Loan Documents, the Administrative Agent will
authorize the Collateral Agent to release its Lien on and security interest in
such Collateral (and release the guaranty by a Loan Party, if applicable) or
subordinate its Lien in case of Liens permitted as referred to above, and, at BMCA’s
expense, execute and deliver to such Loan Party such documents as such Loan
Party may reasonably request to evidence the release of such item of Collateral
from the assignment and security interest granted under the Collateral
Documents or release of such Loan Party from its obligation under the Guaranty,
or subordinate the Lien of the Collateral Agent on such item of Collateral to
such permitted Lien in accordance with the terms of the Loan Documents.


 


SECTION 8.11.      Jurisdiction,
Etc. (a)  Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or Federal court of
the United States of America sitting in New York City, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement or any of the other Loan Documents to which it is a party, or
for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York
State court or, to the fullest extent permitted by law, in such Federal court. Each
of the parties hereto agrees that a final judgment in any such action or
proceeding shall be


 


95

















 


conclusive and may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Agreement or any of the other Loan
Documents in the courts of any jurisdiction.


 


(b)           Each
of the parties hereto irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection that it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement or any of the other Loan Documents to
which it is a party in any New York State or Federal court. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.


 


SECTION 8.12.      Governing
Law. This Agreement and the Notes shall be governed by, and construed in
accordance with, the laws of the State of New York.


 


SECTION 8.13.      Waiver
of Jury Trial. Each of the Borrowers, the Agents and the Lenders irrevocably
waives all right to trial by jury in any action, proceeding or counterclaim
(whether based on contract, tort or otherwise) arising out of or relating to
any of the Loan Documents, the Bridge Loans or Rollover Loans or the actions of
any Agent or any Lender in the negotiation, administration, performance or
enforcement thereof.


 


SECTION 8.14.      Agreement
to Comply With Court Order. Each of the Lenders hereby accepts and agrees to
abide by all of the terms of the order (the “Approval Order”) as set forth in Exhibit
F hereto entered by the bankruptcy court on February 20, 2007 in connection
with the G-I Holdings bankruptcy proceedings and further agrees not to take any
action (including appearing in certain litigation proceedings specified in the
Approval Order) which could result in the loss of any waivers, or other rights
granted in such Approval Order for the benefit of the Agents and/or the Lenders.


 


SECTION 8.15.      Patriot
Act Notice. Each Lender and each Agent (for itself and not on behalf of any Lender)
hereby notifies the Loan Parties that pursuant to the requirements of the USA
PATRIOT ACT (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the “Patriot Act”), it is required
to obtain, verify and record information that identifies each Loan Party, which
information includes the name and address of such Loan Party and other
information that will allow such Lender or such Agent, as applicable, to
identify such Loan Party in accordance with the Patriot Act. In such
connection, any Lender or Agent may also request corporate formation documents,
or other forms of identification, to verify information provided. The Borrowers
shall, and shall cause each of their Subsidiaries to, provide such information
and take such actions as are reasonably requested by any Agent or any Lender in
order to assist the Agents and the Lender in maintaining compliance with the
Patriot Act.


 


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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officers thereunto duly authorized, as of the date first
above written.


 


	
   

  	
  BUILDING
  MATERIALS

  CORPORATION OF AMERICA

  
	
   

  	
  BMCA ACQUISITION INC.

  
	
   

  	
  BMCA ACQUISITION SUB INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ John M. Maitner

  	
   

  
	
   

  	
   

  	
  Name:

  	
  John M. Maitner

  
	
   

  	
   

  	
  Title:

  	
  Vice President and Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DEUTSCHE BANK AG CAYMAN

  ISLANDS BRANCH,

  
	
   

  	
  as
  Administrative Agent and Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Marguerite Sutton

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Marguerite Sutton

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Carin Keegan

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Carin Keegan

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
					



 


97

















 


	
   

  	
  DEUTSCHE
  BANK AG CAYMAN

  ISLANDS BRANCH,

  
	
   

  	
  as a
  Joint Lead Arranger and a Joint Book Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Marguerite Sutton

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Marguerite Sutton

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Carin Keegan

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Carin Keegan

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BEAR
  STEARNS CORPORATE

  LENDING INC.

  
	
   

  	
  as a
  Joint Lead Arranger and a Joint Book Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Richard Bram Smith

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Richard Bram Smith

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A.,

  
	
   

  	
  as a Joint Book Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ John M. Hariaczyi

  	
   

  
	
   

  	
   

  	
  Name:

  	
  John M. Hariaczyi

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
					



 


98

















 


	
   

  	
  Initial Lenders

  
	
   

  	
   

  
	
   

  	
  DEUTSCHE BANK AG CAYMAN

  ISLANDS BRANCH

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Marguerite Sutton

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Marguerite Sutton

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Carin Keegan

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Carin Keegan

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BEAR STEARNS CORPORATE

  LENDING INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Richard Bram Smith

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Richard Bram Smith

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ John M. Hariaczyi

  	
   

  
	
   

  	
   

  	
  Name:

  	
  John M. Hariaczyi

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
					



 


99