Exhibit 10.2


 


$975,000,000


 


TERM 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 NEW YORK BRANCH


 


as Administrative Agent


 


and


 


DEUTSCHE
BANK SECURITIES INC.,


 


BEAR STEARNS & CO. INC.,


 


and


 


J.P. MORGAN SECURITIES INC.


 


as Joint Lead Arrangers and Joint Book
Managers


 


and


 


BEAR STEARNS & CO. INC.


 


as
Syndication Agent 


 


and


 


J.P. MORGAN SECURITIES INC.


 


as
Documentation Agent


 

















 


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

  	
   

  	
  28

  
	
  SECTION 1.03. Accounting Terms

  	
   

  	
  28

  
	
  SECTION 1.04. Currency Equivalents Generally

  	
   

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  AMOUNTS AND TERMS OF
  THE TERM LOAN ADVANCES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01. The Term Loan Advances

  	
   

  	
  28

  
	
  SECTION 2.02. Making the Term Loan Advances

  	
   

  	
  29

  
	
  SECTION 2.03. Repayment of Term Loan Advances

  	
   

  	
  30

  
	
  SECTION 2.04. Termination or Reduction of the
  Term Loan Commitments

  	
   

  	
  30

  
	
  SECTION 2.05. Prepayments

  	
   

  	
  31

  
	
  SECTION 2.06. Interest

  	
   

  	
  32

  
	
  SECTION 2.07. Fees

  	
   

  	
  33

  
	
  SECTION 2.08. Conversion of Term Loan Advances

  	
   

  	
  33

  
	
  SECTION 2.09. Increased Costs, Etc

  	
   

  	
  34

  
	
  SECTION 2.10. Payments and Computations

  	
   

  	
  36

  
	
  SECTION 2.11. Taxes

  	
   

  	
  38

  
	
  SECTION 2.12. Sharing of Payments, Etc

  	
   

  	
  41

  
	
  SECTION 2.13. Use of Proceeds

  	
   

  	
  42

  
	
  SECTION 2.14. Defaulting Lenders

  	
   

  	
  42

  
	
  SECTION 2.15. Evidence of Debt

  	
   

  	
  44

  
	
  SECTION 2.16. Increase in Term Loan Borrowing

  	
   

  	
  45

  
	
  SECTION 2.17. Relationship Among the Borrowers

  	
   

  	
  47

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  CONDITIONS OF LENDING

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01. Conditions Precedent to Initial
  Term Loan Borrowing

  	
   

  	
  48

  
	
  SECTION 3.02. Conditions Precedent to the
  Merger Term Loan Borrowing

  	
   

  	
  53

  
	
  SECTION 3.03. Conditions Precedent to Each Term
  Loan Borrowing

  	
   

  	
  53

  
	
  SECTION 3.04. Determinations Under
  Section 3.01 or 3.02

  	
   

  	
  54

  



 


i

















 


	
  ARTICLE IV

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  REPRESENTATIONS AND
  WARRANTIES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01. Representations and Warranties of
  the Borrowers

  	
   

  	
  55

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  COVENANTS OF THE
  BORROWERS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01. Affirmative Covenants

  	
   

  	
  62

  
	
  SECTION 5.02. Negative Covenants

  	
   

  	
  70

  
	
  SECTION 5.03. Reporting Requirements

  	
   

  	
  83

  
	
  SECTION 5.04. Financial Covenants

  	
   

  	
  85

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EVENTS OF DEFAULT

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01. Events of Default

  	
   

  	
  86

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  THE AGENTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 7.01. Authorization and Action

  	
   

  	
  90

  
	
  SECTION 7.02. Agents’ Reliance, Etc

  	
   

  	
  90

  
	
  SECTION 7.03. DBNY and Affiliates

  	
   

  	
  91

  
	
  SECTION 7.04. Lender Credit Decision

  	
   

  	
  91

  
	
  SECTION 7.05. Indemnification

  	
   

  	
  91

  
	
  SECTION 7.06. Successor Agents.

  	
   

  	
  92

  
	
  SECTION 7.07. The Joint Lead Arrangers, the
  Syndication Agent and the Documentation Agent

  	
   

  	
  92

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  MISCELLANEOUS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.01. Amendments, Etc

  	
   

  	
  93

  
	
  SECTION 8.02. Notices, Etc

  	
   

  	
  94

  
	
  SECTION 8.03. No Waiver; Remedies

  	
   

  	
  95

  
	
  SECTION 8.04. Costs and Expenses

  	
   

  	
  95

  
	
  SECTION 8.05. Right of Set-off

  	
   

  	
  97

  
	
  SECTION 8.06. Binding Effect

  	
   

  	
  97

  
	
  SECTION 8.07. Assignments and Participations

  	
   

  	
  97

  
	
  SECTION 8.08. Execution in Counterparts

  	
   

  	
  101

  
	
  SECTION 8.09. Confidentiality

  	
   

  	
  101

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

  	
   

  	
  102

  



 


ii

















 


	
  SECTION 8.11. Jurisdiction, Etc.

  	
   

  	
  102

  
	
  SECTION 8.12. Governing Law

  	
   

  	
  103

  
	
  SECTION 8.13. Waiver of Jury Trial

  	
   

  	
  103

  
	
  SECTION 8.14. Agreement to Comply With Court
  Order

  	
   

  	
  103

  
	
  SECTION 8.15. Patriot Act Notice

  	
   

  	
  103

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULES

  	
   

  	
   

  
	
  Schedule I

  	
  -

  	
  Term Loan Commitments and Applicable Lending Offices

  	
   

  	
   

  
	
  Schedule II

  	
  -

  	
  Guarantors

  	
   

  	
   

  
	
  Schedule 3.02

  	
  -

  	
  Elk Debt

  	
   

  	
   

  
	
  Schedule 4.01(a)

  	
  -

  	
  Equity Investors

  	
   

  	
   

  
	
  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(e)

  	
  -

  	
  Excluded Assets

  	
   

  	
   

  
	
  Schedule 8.02

  	
  -

  	
  Addresses

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
  Exhibit A

  	
  -

  	
  Form of Term Loan 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

  	
   

  	
   

  
							



 


iii

















 


TERM LOAN AGREEMENT


 


TERM 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 NEW YORK BRANCH, as administrative
agent (in such capacity, together with any successor administrative agent
appointed pursuant to Article VII, the “Administrative Agent”), DEUTSCHE BANK
SECURITIES INC., BEAR STEARNS & CO. INC. and J.P. MORGAN SECURITIES
INC., as joint lead arrangers (in such capacities, collectively, the “Joint Lead Arrangers”) and joint book
managers, BEAR STEARNS & CO. INC., as syndication agent (the “Syndication Agent”),
and J.P. MORGAN SECURITIES INC., as documentation agent (the “Documentation Agent”,
and together with the Administrative Agent, the Joint Lead Arrangers and the
Syndication Agent, collectively, the “Agents”), for the Lenders (as hereinafter
defined).


 


PRELIMINARY STATEMENTS:


 


(1)                                  The
Borrowers have requested and the Initial Lenders have agreed to establish a
$975,000,000 term 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 $325,000,000 Bridge Loan Agreement (such Bridge Loan Agreement, as
amended, restated, supplemented or otherwise modified, replaced or refinanced, the
“Bridge Loan Facility”) with Deutsche
Bank AG Cayman Islands Branch, as collateral agent and as administrative agent,
and the other financial institutions party thereto.  A substantial portion of the proceeds of the
Term Loan Facility (as hereinafter defined), the Revolving Credit Facility and
the Bridge 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 Term Loan Facility, the
Revolving Credit Facility, the Bridge 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.


 


“Applicable Lending Office”
means, with respect to each Lender, such Lender’s Domestic Lending Office in
the case of a Base Rate Advance and such Lender’s Eurodollar Lending Office in
the case of a Eurodollar Rate Advance.


 


“Applicable
Margin” means (a) 1.50% per annum in the case of Base Rate
Advances and (b) 2.50% per annum in the case of Eurodollar Rate Advances.


 


“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


 


2

















 


Lending Rate and (ii) 1⁄2 of 1% per annum in excess
of the overnight Federal Funds Rate at such time.


 


“Base
Rate Advance” means a Term Loan Advance that bears interest as
provided in Section 2.06(a)(i).


 


“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.


 


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


 


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


 


3

















 


“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
Agreement 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 this Agreement, each
trustee under the Existing Indentures, and the Collateral Agreement Agent, as
the same may be amended, restated, supplemented, replaced or otherwise
modified.


 


“Collateral
Agreement Agent” means DBTCA, in its capacity as collateral
agent under the Collateral Documents, 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 Agreement Agent for the benefit of the
Secured Parties, as the same may be 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 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


 


6

















 


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.


 


“Conversion”,
“Convert”
and “Converted”
each refer to a conversion of Term Loan Advances of one Type into Term Loan Advances
of the other Type pursuant to Section 2.08 or 2.09.


 


“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 the seventh
anniversary of the Closing Date, 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).


 


“Defaulted
Advance” means, with respect to any Lender at any time, the
portion of any Term Loan Advance required to be made by such Lender to the
Borrowers pursuant to Section 2.01 or 2.02 at or prior to such time that
has not been made by such Lender or by the Administrative Agent for the account
of such Lender pursuant to Section 2.02(d) as of such time.  In the event that a portion of a Defaulted
Advance shall be deemed made pursuant to Section 2.14(a), the remaining
portion of such Defaulted Advance shall be considered a Defaulted Advance
originally required to be made pursuant to Section 2.01 on the same date
as the Defaulted Advance so deemed made in part.


 


“Defaulted
Amount” means, with respect to any Lender at any time, any
amount required to be paid by such Lender to any Agent or any other Lender
hereunder or under any other Loan Document at or prior to such time that has
not been so paid as of such time, including any amount required to be paid by
such Lender to (a) the Administrative Agent pursuant to Section 2.02(d) to
reimburse the Administrative Agent for the amount of any Term Loan Advance made
by the Administrative Agent for the account of such Lender, (b) any other
Lender pursuant to Section 2.12 to purchase any participation in


 


8

















 


Term Loans Advances owing to such other Lender and (c) any
Agent pursuant to Section 7.05 to reimburse such Agent for such Lender’s
ratable share of any amount required to be paid by the Lenders to such Agent as
provided therein.  In the event that a
portion of a Defaulted Amount shall be deemed paid pursuant to Section 2.14(b),
the remaining portion of such Defaulted Amount shall be considered a Defaulted
Amount originally required to be paid hereunder or under any other Loan
Document on the same date as the Defaulted Amount so deemed paid in part.


 


“Defaulting
Lender” means, at any time, any Lender that, at such time, (a) owes
a Defaulted Advance or a Defaulted Amount or (b) shall take any action or
be the subject of any action or proceeding of a type described in Section 6.01(f).


 


“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.


 


“Documentation Agent”
has the meaning specified in the recital of parties to this Agreement, and
collectively includes such other entities as hereinafter may be designated as
such by the Joint Lead Arrangers after consulting with BMCA.


 


“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 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.


 


9

















 


“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), 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.


 


10

















 


“Elk Private Notes
Condition” means the elimination of the restrictions under the
Elk Private Notes on the Merger and on Elk and its Subsidiaries becoming, as of
the date of the Merger, parties to the Security Agreement and Guarantors.


 


“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.


 


“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


 


11

















 


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.


 


“Escrow
Bank” has the meaning specified in Section 2.14(c).


 


“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
Lending Office” means, with respect to any Lender, the office of
such Lender specified as its “Eurodollar Lending Office” opposite its name on Schedule I
hereto or in the Assignment and Acceptance pursuant to which it became a Lender
(or, if no such office is specified, its Domestic Lending Office), or such
other office of such Lender as such Lender may from time to time specify to the
Borrowers and the Administrative Agent.


 


“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
Interest Period applicable to the Eurodollar Advance subject to the respective
Term Loan Borrowing 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 of
Eurocurrency funding or liabilities as defined in Regulation D (or any
successor category of liabilities under Regulation D).


 


12

















 


“Eurodollar
Rate Advance” means a Term Loan Advance that bears interest as
provided in Section 2.06(a)(ii).


 


“Eurodollar
Rate Reserve Percentage” for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Term Loan Borrowing 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
Eurodollar Rate Advances is determined) having a term equal to such Interest
Period.


 


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


 


“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 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


 


13

















 


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.


 


“Fee
Letters” means, collectively, (a) the senior secured
financing fee letter dated January 26, 2007 among the Borrowers and
Deutsche Bank AG New York Branch, Deutsche Bank Securities Inc., Bear Stearns
Corporate Lending Inc., Bear Stearns & Co. Inc., JPMorgan Chase Bank,
N.A. and J.P. Morgan Securities Inc. and (b) the senior secured financing
agency fee letter dated January 26, 2007 between the Borrowers and
Deutsche Bank AG New York Branch and Deutsche Bank Securities Inc., in each
case as amended or superseded.


 


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


 


“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.


 


“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 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.


 


14

















 


“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.


 


“Hedge
Bank” means any Lender or an Affiliate of a Lender or any other
Person in its capacity as a party to a Hedge Agreement with BMCA or any other
Loan Party.


 


“Incremental Term Loan
Borrowing” has the meaning specified in Section 2.16(a).


 


“Incremental Term Loan Borrowing
Notice” has the meaning specified in Section 2.16(a).


 


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


 


“Information
Memorandum” means an information memorandum to be delivered by
BMCA in connection with the syndication of this Term Loan Facility after the
Closing Date.


 


“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).


 


15

















 


“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.


 


“Initial
Term Loan Borrowing” has the meaning specified in Section 2.01.


 


“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 Agreement 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(b)(iii) between
DBCA, as collateral agent under the Bridge Loan Facility and DBTCA, as
Collateral Agreement Agent, and (ii) the Revolver Intercreditor Agreement,
referred to in Section 3.01(b)(iii) among DBCA, as collateral agent
under the Bridge Loan Facility, DBTCA, as Collateral Agreement Agent, and DBNY,
as collateral agent under the Revolving Credit Facility, in each case of (i) or
(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, with respect to any Eurodollar Rate
Advance, the second Business Day prior to the commencement of any Interest
Period relating to such Eurodollar Rate Advance.


 


“Interest
Period” means, for each Eurodollar Rate Advance comprising part
of the same Term Loan Borrowing, the period commencing on the date of such
Eurodollar Rate Advance or the date of the Conversion of any Base Rate Advance
into such Eurodollar Rate Advance, and ending on the last day of the period
selected by BMCA pursuant to the provisions below and, thereafter, each
subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period selected by BMCA as
provided below.  The duration of each
such Interest Period shall be one, two, three or six months or, if all Lenders
agree, nine or twelve months, as BMCA may, upon notice received by the
Administrative Agent not later than 11:00 A.M. (New York City time)
on the third Business Day prior to the first day of such Interest Period,
select; provided, however, that:


 


(a)                                  BMCA
may not select any Interest Period with respect to any Eurodollar Rate Advance
that ends after any principal repayment installment date unless, after giving
effect to such selection, the aggregate unpaid principal amount of Term Loan Advances
having Interest Periods that end on or prior to such principal repayment


 


16

















 


installment date shall be at least equal to the
aggregate principal amount of Term Loan Advances due and payable on or prior to
such date;


 


(b)                                 Interest
Periods commencing on the same date for Eurodollar Rate Advances comprising
part of the same Term Loan Borrowing shall be of the same duration;


 


(c)                                  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


 


(d)                                 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.


 


“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 (h) or (i) of
the definition of “Debt”
in respect of such Person.


 


“IRB Properties”
means those Properties listed in part 2 of Schedule 4.01(q).


 


“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.


 


“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


 


17

















 


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, (v) the
Fee Letters, (vi) the Secured Hedge Agreements, and (vii) 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.


 


“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.


 


“Merger Term Loan Borrowing”
has the meaning specified in Section 2.01.


 


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


 


18

















 


“Mortgage” has
the meaning specified in Section 3.01(b)(iv).


 


“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,
whether by Casualty Event or otherwise, of any assets other than the sale or
issuance of any Equity Interest of BMCA or (B) the incurrence or issuance
of any Debt or (C) any Extraordinary Receipt received by or paid to or for
the account of any Loan Party, the aggregate amount of cash received from time
to time (whether as 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


 


19

















 


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 each promissory note, if any, of the Borrowers payable to the order of
any Lender, in substantially the form of Exhibit A hereto, evidencing the
aggregate indebtedness of the Borrowers to such Lender resulting from the Term
Loan Advances made by such Lender, as amended.


 


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


 


“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).


 


20

















 


“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 2.11(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.


 


“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;


 


21

















 


(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.


 


“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 Term Loan Advances at such time and the denominator of which is the aggregate
outstanding principal amount of Term Loan Advances of 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


 


22

















 


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 sum of (a) the aggregate principal amount of
the Term Loan Advances outstanding at such time and (b) the aggregate
Unused Term Loan Commitments at such time; provided, however, that if any Lender shall be a
Defaulting Lender at such time, there shall be excluded from the determination
of Required Lenders at such time (i) the aggregate principal amount of the
Term Loan Advances owing to such Lender (in its capacity as a Lender) and
outstanding at such time, and (ii) the Unused Term Loan Commitment of such
Lender 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).


 


“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.


 


23
















 


“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).


 


“Secured
Hedge Agreement” means any Hedge Agreement that is entered into
by and between BMCA and any Hedge Bank prior to, on or after the date hereof
that expressly states that (x) it constitutes a “Secured Hedge Agreement” for
purposes of this Agreement and the other Loan Documents and (y) does not
constitute a “Secured Hedge Agreement” for purposes of the Revolving Credit
Facility and the collateral therefor, provided, however,
that (i) BMCA shall have delivered to the Administrative Agent and the
Collateral Agreement Agent a written notice specifying that such Hedge
Agreement (x) constitutes a “Secured Hedge Agreement” for purposes of this
Agreement and the other Loan Documents and (y) does not constitute a “Secured
Hedge Agreement” for purposes of the Revolving Credit Facility and the
collateral therefor and (ii) the Hedge Bank party to such Hedge Agreement,
if requested by the Collateral Agreement Agent, will enter an intercreditor
agreement in respect of such Hedge Agreement with the Collateral Agreement
Agent.


 


“Secured
Parties” means the Agents, the Collateral Agreement Agent, the Lenders,
the Hedge Banks, each other secured party specified as a secured party in the
Collateral Documents and each other party to the Collateral Agency Agreement or
whose representative is a party thereto.


 


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


 


“Senior
Facility” means the Term Loan Advances hereunder, excluding any Incremental
Term Loan Borrowing.


 


“Senior Notes”
means the Senior 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 refinance the Bridge
Loan Facility 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


 


24

















 


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 3.03(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).


 


“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


 


25

















 


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.


 


“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.


 


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


 


“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 2.11(a).


 


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


 


“Term Loan Advance”
has the meaning specified in Section 2.01 and includes advances made under
any Incremental Term Loan Borrowing.


 


“Term
Loan Borrowing” means a borrowing consisting of simultaneous Term Loan
Advances of the same Type made by the Lenders.


 


“Term
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 “Term Loan Commitment” or, if such Lender has entered into one or
more Assignment and Acceptances, set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to Section 8.04(d) as
such Lender’s “Term
Loan Commitment”, as such amount may be reduced at or prior to such time
pursuant to Section 2.05.


 


“Term
Loan Commitment Termination Date” means the date which will not
be later than the later of (x) four months after the Closing Date and (y) June 30,
2007.


 


“Term Loan Facility”
means, the Term Loan Commitments and the provisions herein related to the Term
Loan Advances.


 


“Term
Loan Increase Closing Date” has the meaning specified in Section 2.16(d).


 


“Termination
Date” means the earliest of (a) the seventh anniversary of
the Closing Date, and (b) acceleration of the Term Loan Advances pursuant
to Section 6.01.


 


26

















 


 


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


 


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


 


“Type”
refers to the distinction between Term Loan Advances bearing interest at the
Base Rate and Term Loan Advances bearing interest at the Eurodollar Rate.


 


“Unused
Term Loan Commitment” means, with respect to any Lender at any
time, (a) such Lender’s Term Loan Commitment at such time minus (b) the aggregate principal
amount of all Term Loan Advances, made by such Lender (in its capacity as a
Lender) and outstanding at such time.


 


“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.


 


“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


 


27

















 


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 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 DBNY 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 TERM LOAN ADVANCES


 


SECTION 2.01.      The Term Loan Advances.  Each Lender severally agrees, on the terms
and conditions hereinafter set forth, to make advances (each a “Term Loan Advance”) to the Borrowers
from time to time on any Business Day during the period from the Closing Date
until the Term Loan Commitment Termination Date in a principal amount for each
such Term Loan Advance not to exceed such Lender’s Unused Term Loan Commitment
at such time.  The initial Term Loan


 


28

















 


Borrowing shall be in an aggregate amount not less
than 50% of the aggregate principal amount of the Term Loan Commitments on the
Closing Date (the “Initial Term Loan Borrowing”),
each other Term Loan Borrowing (other than the Merger Term Loan Borrowing or
the last Term Loan Borrowing) shall be in an aggregate principal amount not
less than $50,000,000 and, in each case, shall consist of Term Loan Advances
made simultaneously by the Lenders ratably according to their Term Loan
Commitments.  The Initial Term Loan
Borrowing shall be made on the Closing Date. 
It is expected that the last Term Loan Borrowing (the “Merger Term Loan Borrowing”) shall
be made on the date of the Merger unless the Elk Private Notes are outstanding
on such date, in which case one additional Term Loan Borrowing shall be made
after the date of the Merger and on the date of payment in full of the Elk
Private Notes.  Any Term Loan Advance
which is repaid cannot be reborrowed.


 


SECTION 2.02.      Making the Term Loan Advances.  (a)  Except as otherwise provided
in Section 2.02(b), each Term Loan Borrowing shall be made on notice,
given not later than 11:00 A.M. (New York City time) on the third
Business Day prior to the date of the proposed Term Loan Borrowing in the case
of a Term Loan Borrowing consisting of Eurodollar Rate Advances, or the first
Business Day prior to the date of the proposed Term Loan Borrowing in the case
of a Term Loan Borrowing consisting of Base Rate Advances, by any Borrower to
the Administrative Agent, which shall give to each Lender prompt notice thereof
by email or facsimile.  Each such notice
of a Term 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 such Term Loan Borrowing, (ii) Type of Term
Loan Advances comprising such Term Loan Borrowing, (iii) aggregate
principal amount of such Term Loan Borrowing and (iv) in the case of a Term
Loan Borrowing consisting of Eurodollar Rate Advances, initial Interest Period
for each such Term Loan Advance.  Each
Lender shall, before 11:00 A.M. (New York City time) on the date of
such Term Loan Borrowing, make available for the account of its Applicable
Lending Office to the Administrative Agent at the Administrative Agent’s
Account, in same day funds, such Lender’s ratable portion of such Term Loan
Borrowing in accordance with the respective Term Loan Commitments of such
Lender and the other Lenders.  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.


 


(b)                                 Anything in subsection (a) above
to the contrary notwithstanding, (i) the Borrowers may not select
Eurodollar Rate Advances for (x) the initial Term Loan Borrowing hereunder
unless BMCA delivers to the Administrative Agent a customary indemnity letter
with respect to such Eurodollar Rate Advances (y) or for any Term Loan
Borrowing if the aggregate amount of such Term Loan Borrowing is less than $5,000,000
or (z) if the obligation of the Lenders to make Eurodollar Rate Advances shall
then be suspended pursuant to Section 2.08 or 2.09 and (ii) the Term
Loan Advances may not be outstanding as part of more than eight separate Term
Loan Borrowings.  Provided that BMCA has
delivered a customary indemnity letter and that notice of the Initial Term Loan
Borrowing is received prior to 9:00 A.M. (New York time) on the date of
the proposed initial Term Loan Borrowing (which shall be a Business Day), the
Initial Term Loan Borrowing may be made on such Business Day.


 


(c)                                  Each Notice of Borrowing shall
be irrevocable and binding on the Borrowers. 
In the case of any Term Loan Borrowing that the related Notice of Borrowing


 


29

















 


specifies is to be comprised of Eurodollar Rate Advances, 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 such Term 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 Term Loan Advance to be made by such Lender as part of such Term
Loan Borrowing when such Term Loan Advance, as a result of such failure, is not
made on such date.


 


(d)                                 Unless the Administrative Agent
shall have received notice from a Lender prior to the date of any Term Loan
Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s ratable portion of such Term Loan Borrowing, the Administrative
Agent may assume that such Lender has made such portion available to the
Administrative Agent on the date of such Term 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 such ratable portion
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 to
Term Loan Advances comprising such Term Loan Borrowing 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 Term Loan Advance as
part of such Term Loan Borrowing for all purposes.


 


(e)                                  The failure of any Lender to
make the Term Loan Advance to be made by it as part of any Term Loan Borrowing
shall not relieve any other Lender of its obligation, if any, hereunder to make
its Term Loan Advance on the date of such Term Loan Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Term Loan
Advance to be made by such other Lender on the date of any Term Loan Borrowing.


 


SECTION 2.03.      Repayment of Term Loan Advances.  The Borrowers, jointly and severally, agree
to repay to the Administrative Agent for the ratable account of the Lenders (a) on
the last day of each quarter, commencing on the last day of the quarter in
which the last Term Loan Borrowing is made, an amount equal to 0.25% of the
aggregate principal amount of the Term Loan Advances outstanding on such date
(which amounts shall be reduced as a result of the application of prepayments
in accordance with Section 2.05), and (b) on the seventh anniversary
of the Closing Date, the aggregate outstanding principal amount of the Term
Loan Advances.  All payments of principal
hereunder shall be made together with the payment of all interest accrued on
the principal amount repaid.


 


SECTION 2.04.      Termination or Reduction of the Term
Loan Commitments.  The Borrowers may,
upon at least three Business Days’ notice to the Administrative Agent, and
without premium or penalty, terminate in whole the unused portions of the
Unused Term Loan Commitments.  Upon
receipt of a notice pursuant to this Section 2.04, the Unused Term Loan
Commitments outstanding shall


 


30

















 


be permanently reduced to zero.  The Term Loan Facility shall be permanently
reduced on the Term Loan Commitment Termination Date by the aggregate amount of
Unused Term Loan Commitments as of the close of business on such date.


 


SECTION 2.05.      Prepayments.  (a)  Optional.  The Borrowers may, upon at least one Business
Day’s notice in the case of Base Rate Advances and three Business Days’ notice
in the case of Eurodollar Rate Advances, in each case to the Administrative
Agent stating the proposed date and aggregate principal amount of the
prepayment, and, if such notice is given, the Borrowers shall, prepay the
outstanding aggregate principal amount of the Term Loan Advances comprising
part of the same Term Loan Borrowing in whole or ratably in part, together with
accrued interest to the date of such prepayment on the aggregate principal
amount so prepaid; provided, however, that (x) each partial prepayment shall be in
an aggregate principal amount of $5,000,000 or an integral multiple of $1,000,000
in excess thereof and (y) if any prepayment of a Eurodollar Rate Advance
is made on a date other than the last day of an Interest Period for such Term
Loan Advance, the Borrowers shall also pay any amounts owing pursuant to Section 8.04(d).  Any such optional prepayment of the Term Loan
Advances shall be applied as directed by the Borrower.


 


(b)                                 Mandatory.  (i)  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 including
any and all involuntary dispositions, whether by condemnation, casualty loss or
otherwise, of any assets of any Loan Party or any of its Subsidiaries (other
than (w) any sale, lease, transfer or other disposition of assets referred
to in clause (i), (ii), (iii) or (iv) of the definition of Certain
Permitted Dispositions and (x) any sale, lease transfer or other
disposition of assets the Net Cash Proceeds of which are reinvested in assets
used in the operation of the business within 18 months of receipt of such
proceeds), (B) the incurrence or issuance by any Loan Party or any of its
Subsidiaries of any Debt (other than Debt permitted to be incurred or issued
pursuant to Section 5.02(b), but including the Net Cash Proceeds from the
issuance of Senior Notes in excess of the amount of such Net Cash Proceeds
required to repay the Bridge Loan Facility), and (C) any Extraordinary
Receipt received by or paid to or for the account of any Loan Party or any of its
Subsidiaries and not otherwise included in clause (A) or (B) above
(other than any Extraordinary Receipts which are reinvested in assets used in
the operation of the business within 18 months of receipt of such proceeds),
prepay an aggregate principal amount of the Term Loan Advances comprising part
of the same Term Loan (with application to be made in accordance with
clause (ii) below, in an aggregate amount equal to the amount of such
Net Cash Proceeds, provided, however,
that with respect to any payment referred to in clause (A) above, the Net
Cash Proceeds from the sale of Collateral (other than as set forth in clauses
(i), (ii), (iii) or (iv) of the definition of Certain Permitted
Dispositions) in which the lenders under the Revolving Credit Facility have a
prior lien shall first be applied to repay advances, if any, under the
Revolving Credit Facility.


 


(ii)                                  All
prepayments under this subsection (b) shall be made together with
accrued interest thereof to the date of such prepayment on the principal amount
prepaid, together with any amounts owing pursuant to Section 8.04 and
shall be applied ratably to each remaining scheduled repayment of the Term Loan
Advances.  If any payment of Eurodollar
Rate Advances otherwise required to be made under this Section 2.05(b) would
be made on a day other than the last day of the applicable Interest Period
thereon, each Borrower may direct the Administrative Agent to (and if so
directed, the


 


31

















 


Administrative Agent shall) deposit such payment in an account
maintained with the Administrative Agent until the last day of the applicable
Interest Period at which time the Administrative Agent shall apply the amount
of such payment to the prepayment of such Term Loan Advances; provided, however, that
such Term Loan Advances shall continue to bear interest as set forth in Section 2.06
until the last day of the applicable Interest Period therefor.


 


SECTION 2.06.      Interest.  (a)  Scheduled Interest.  The Borrowers, jointly and severally, agree
to pay interest on the unpaid principal amount of each Term Loan Advance owing
to each Lender from the date of such Term Loan Advance until such principal
amount shall be paid in full, at the following rates per annum:


 


(i)                                     Base Rate
Advances.  During such periods as
such Term Loan Advance is (A) a Base Rate Advance, a rate per annum equal
at all times to the Base Rate in effect from time to time plus
(B) the Applicable Margin, payable in arrears monthly on the first day of
each month during such periods and on the date such Base Rate Advance shall be
Converted or paid in full.


 


(ii)                                  Eurodollar Rate
Advances.  During such periods as
such Term Loan Advance is a Eurodollar Rate Advance, a rate per annum equal at
all times during each Interest Period for such Term Loan Advance to the sum of (A) the
Eurodollar Rate (adjusted for maximum reserves) for such Interest Period for
such Term Loan Advance plus (B) the
Applicable Margin, payable in arrears on the last day of such Interest Period
and, if such Interest Period has a duration of more than three months, on each
day that occurs during such Interest Period every three months from the first
day of such Interest Period and on the date such Eurodollar Rate Advance shall
be Converted or paid in full; provided,
however, that that until the earlier to occur of (i) the 60th
day following the Closing Date or (ii) the date upon which the Joint Lead
Arrangers shall determine in their sole discretion that the primary syndication
of the Term Loan Facility has been completed, Eurodollar Advances shall be
restricted to a single one month interest period at all times.


 


(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 each Term Loan
Advance owing to each Lender, payable in arrears on the dates referred to in
clause (i) or (ii) of 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 such Term Loan Advance pursuant
to clause (i) or (ii) of 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 Type of Term
Loan Advance on which such interest has accrued pursuant to clause (i) or
(ii) of Section 2.06(a), as applicable, and, in all other cases, on
Base Rate Advances pursuant to clause (i) of Section 2.06(a); provided, however,


 


32

















 


that following the acceleration of the Term Loan Advances, or the
giving of notice by the Agent to accelerate the Term Loan Advances 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.


 


(c)                                  Notice of Interest Period and
Interest Rate.  Promptly after receipt of a Notice of
Borrowing pursuant to Section 2.02(a), a notice of Conversion pursuant to Section 2.08
or a notice of selection of an Interest Period pursuant to the terms of the
definition of “Interest Period”, the Administrative Agent shall give notice to
the Borrowers and each Lender of the applicable Interest Period and the
applicable interest rate determined by the Administrative Agent for purposes of
clause (a)(i) or (a)(ii) above.


 


SECTION 2.07.      Fees.  (a) 
Commitment Fee.  The Borrowers,
jointly and severally, agree to pay to the Administrative Agent for the account
of the Lenders a commitment fee, from the date hereof in the case of each
Initial Lender and from the effective date specified in the Assignment and
Acceptance pursuant to which it became a Lender in the case of each other
Lender until the Term Loan Commitment Termination Date, payable in arrears on
the last day of March, 2007, and on the Term Loan Commitment Termination Date,
at the rate per annum, on the sum of the daily Unused Term Loan Commitment of
such Lender, of 0.50%; provided, however, that any commitment fee accrued with respect to
any of the Term Loan Commitments of a Defaulting Lender during the period prior
to the time such Lender became a Defaulting Lender and unpaid at such time
shall not be payable by the Borrowers so long as such Lender shall be a
Defaulting Lender except to the extent that such commitment fee shall otherwise
have been due and payable by the Borrowers prior to such time; and provided, further that no commitment fee shall accrue on any
of the Term Loan Commitments of a Defaulting Lender so long as such Lender
shall be a Defaulting Lender.


 


(b)                                 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.      Conversion of Term Loan Advances.  (a) 
Optional.  The Borrowers may on
any Business Day, upon notice given to the Administrative Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to
the date of the proposed Conversion and subject to the provisions of Section 2.09,
Convert all or any portion of the Term Loan Advances of one Type comprising the
same Term Loan Borrowing into Term Loan Advances of the other Type; provided, however, that
any Conversion of Eurodollar Rate Advances into Base Rate Advances shall be
made only on the last day of an Interest Period for such Eurodollar Rate
Advances, any Conversion of Base Rate Advances into Eurodollar Rate Advances
shall be in an amount not less than the minimum amount specified in Section 2.02(b),
no Conversion of any Term Loan Advances shall result in more separate Term Loan
Borrowings than permitted under Section 2.02(b) and each Conversion
of Term Loan Advances comprising part of the same Term Loan Borrowing shall be
made ratably among the Lenders.  Each
such notice of Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Term Loan Advances
to be Converted and (iii) if such Conversion is into Eurodollar Rate
Advances, the duration of the initial Interest Period for such Term Loan
Advances.  Each notice of Conversion
shall be irrevocable and binding on the Borrowers.


 


33

















 


(b)                                 Mandatory.  (i)  On the date on which the aggregate
unpaid principal amount of Eurodollar Rate Advances comprising any Term Loan
Borrowing shall be reduced, by payment or prepayment or otherwise, to less than
$5,000,000, such Term Loan Advances shall automatically Convert into Base Rate
Advances.


 


(ii)                                  If
the Borrowers shall fail to select the duration of any Interest Period for any
Eurodollar Rate Advances in accordance with the provisions contained in the
definition of “Interest Period” in Section 1.01, the Administrative Agent
will forthwith so notify the Borrowers and the Lenders, whereupon each such
Eurodollar Rate Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance.


 


(iii)                               Upon
the occurrence and during the continuance of any Event of Default,
(x) each Eurodollar Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate Advance
and (y) the obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended.


 


SECTION 2.09.      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 to make or of making, funding or maintaining Eurodollar Rate Advances
(excluding, for purposes of this Section 2.09, any such increased costs
resulting from (x) Taxes or Other Taxes (as to which Section 2.11
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 Applicable 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 2.09(a) arising more than 120 days prior to
receipt by the Borrowers of the demand from the affected Lender pursuant to
this Section 2.09(a); provided further that
a Lender claiming additional amounts under this Section 2.11(a) agrees
to use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Applicable 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


 


34

















 


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, with respect to any
Eurodollar Rate Advances, the Required Lenders notify the Administrative Agent
that the Eurodollar Rate for any Interest Period for such Term Loan Advances
will not adequately reflect the cost to such Lenders of making, funding or
maintaining their Eurodollar Rate Advances for such Interest Period, the
Administrative Agent shall forthwith so notify the Borrowers and the Lenders,
whereupon (i) each such Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base
Rate Advance and (ii) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrowers that such Lenders have
determined that the circumstances causing such suspension no longer exist.


 


(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 or its Eurodollar Lending Office to perform its obligations hereunder to
make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar
Rate Advances hereunder, then, on notice thereof and demand therefor by such
Lender to the Borrowers through the Administrative Agent, (i) each
Eurodollar Rate Advance will automatically, upon such demand, Convert into a
Base Rate Advance and (ii) the obligation of the Lenders to make, or to
Convert Advances into, Eurodollar Rate Advances 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 Eurodollar Lending Office if the making of such a
designation would allow such Lender or its Eurodollar Lending Office to
continue to perform its obligations to make Eurodollar Rate Advances or to
continue to fund or maintain Eurodollar Rate Advances 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 2.09 or
Section 2.11 or asserts, pursuant to Section 2.09(d), that it is
unlawful for such Lender to make Eurodollar Rate Advances 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 Term Loan
Advances and Term Loan Commitments in full to one or more Persons selected by
the Borrowers so long as (a) each such Person satisfies the criteria


 


35

















 


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 Term Loan Advances 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 2.09, 2.11, 2.14 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 2.10.      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
(except as otherwise provided in Section 2.14), 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 for the account of their respective Applicable Lending Offices
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
for the account of its Applicable Lending Office, 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 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


 


36

















 


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
Eurodollar Rate Advances to be made in the next following calendar month, such
payment shall be made on the next preceding Business Day.  All repayments of Term Loan Advances shall be
applied first to repay such Term Loan Advances that are Base Rate Advances and
then to repay such Term Loan Advances that are Eurodollar Rate Advances.


 


(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 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 2.09 and 2.11 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 that are due and
payable to the Lenders under Section 2.07 on such date, ratably based upon
the respective aggregate Term Loan Commitments of the Lenders on such date;


 


37

















 


(v)                                 fifth,
to the payment of all of the 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) 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 all of the accrued and unpaid interest on the Term Loan
Advances 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;


 


(vii)                           seventh,
to the payment of the principal amount of all of the outstanding Term Loan
Advances 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


 


(viii)                        eighth,
to the payment of all other Obligations of the Loan Parties owing under or in
respect of the Loan Documents (other than the Secured Hedge Agreements) 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 2.11.      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 2.10 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 state or
foreign jurisdiction of such Lender’s Applicable 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 2.11)
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


 


38

















 


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 2.11,
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 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


 


39

















 


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 2.11, 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 2.11
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 2.11 shall survive the payment in full of the
principal and of interest on all Term Loan Borrowings and Term Loan Advances
made hereunder.


 


(h)                                 Notwithstanding anything to the
contrary in this Section 2.11, any Lender claiming any additional amounts
payable pursuant to this Section 2.11 shall use its reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Applicable 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 2.11(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,


 


40

















 


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 2.11(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 2.12.      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 Notes and
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 owing (but
not due and payable) to all Lenders hereunder 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


 


41

















 


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 2.12 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.


 


SECTION 2.13.      Use of Proceeds.  The proceeds of (a) the Initial Term
Loan Borrowing 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, and (b) the proceeds of each other Term
Loan Borrowing shall be available solely to (i) finance the purchase of
additional shares of Company Stock, repay advances under the Revolving Credit
Facility, the proceeds of which were used to purchase shares of Company Stock
or make other payments in connection with the Transaction, including the
payment of the Elk Private Notes, and (ii) pay fees and expenses in
connection with the Transaction provided, however, that the Borrowers shall use
the proceeds of any Incremental Term Loan Borrowing for general corporate
purposes.


 


SECTION 2.14.      Defaulting Lenders.  (a)  In the event that, at any one
time, (i) any Lender shall be a Defaulting Lender, (ii) such
Defaulting Lender shall owe a Defaulted Advance to the Borrowers and (iii) the
Borrowers shall be required to make any payment hereunder or under any other
Loan Document to or for the account of such Defaulting Lender, then the
Borrowers may, so long as no Default shall occur or be continuing at such time
and to the fullest extent permitted by applicable law, set off and otherwise
apply the Obligation of the Borrowers to make such payment to or for the
account of such Defaulting Lender against the obligation of such Defaulting
Lender to make such Defaulted Advance. 
In the event that, on any date, the Borrowers shall so set off and
otherwise apply its obligation to make any such payment against the obligation
of such Defaulting Lender to make any such Defaulted Advance on or prior to
such date, the amount so set off and otherwise applied by the Borrowers shall
constitute for all purposes of this Agreement and the other Loan Documents a
Term Loan Advance by such Defaulting Lender made on the date of such setoff
under the Facility pursuant to which such Defaulted Advance was originally
required to have been made pursuant to Section 2.01.  Such Term Loan Advance shall be considered,
for all purposes of this Agreement, to comprise part of the Term Loan Borrowing
in connection with which such Defaulted Advance was originally required to have
been made pursuant to Section 2.01, even if the other Term Loan Advances
comprising such Term Loan Borrowing shall be Eurodollar Rate Advances on the
date such Term Loan Advance is deemed to be made pursuant to this subsection (a).  The Borrowers shall notify the Administrative
Agent at any time the Borrowers exercise their right of set-off pursuant to
this subsection (a) and shall set forth in such notice (A) the
name of the Defaulting Lender and the Defaulted Advance required to be made by
such Defaulting Lender and (B) the amount set off and otherwise applied in
respect of such Defaulted Advance pursuant to this subsection (a).  Any portion of such payment otherwise
required to be made by the Borrowers to or for the account of such Defaulting
Lender which is paid by the Borrowers, after giving effect to the amount set
off and otherwise applied by the Borrowers pursuant to this subsection (a),
shall be applied by the Administrative Agent as specified in subsection (b) or
(c) of this Section 2.14.


 


42

















 


(b)                                 In the event that, at any one
time, (i) any Lender shall be a Defaulting Lender, (ii) such
Defaulting Lender shall owe a Defaulted Amount to any Agent or any of the other
Lenders and (iii) the Borrowers shall make any payment hereunder or under
any other Loan Document to the Administrative Agent for the account of such
Defaulting Lender, then the Administrative Agent may, on its behalf or on
behalf of such other Agents or such other Lenders and to the fullest extent
permitted by applicable law, apply at such time the amount so paid by the
Borrowers to or for the account of such Defaulting Lender to the payment of
each such Defaulted Amount to the extent required to pay such Defaulted
Amount.  In the event that the
Administrative Agent shall so apply any such amount to the payment of any such
Defaulted Amount on any date, the amount so applied by the Administrative Agent
shall constitute for all purposes of this Agreement and the other Loan
Documents payment, to such extent, of such Defaulted Amount on such date.  Any such amount so applied by the
Administrative Agent shall be retained by the Administrative Agent or
distributed by the Administrative Agent to such other Agents or such other Lenders,
ratably in accordance with the respective portions of such Defaulted Amounts
payable at such time to the Administrative Agent, such other Agents and such
other Lenders and, if the amount of such payment made by the Borrowers shall at
such time be insufficient to pay all Defaulted Amounts owing at such time to
the Administrative Agent, such other Agents and such other Lenders, in the
following order of priority:


 


(i)                                     first, to the Agents for any Defaulted
Amounts then owing to them, in their capacities as such, ratably in accordance
with such respective Defaulted Amounts then owing to the Agents; and


 


(ii)                                  second, to any other Lenders for any
Defaulted Amounts then owing to such other Lenders, ratably in accordance with
such respective Defaulted Amounts then owing to such other Lenders.


 


Any portion of such amount paid by the Borrowers for
the account of such Defaulting Lender remaining, after giving effect to the
amount applied by the Administrative Agent pursuant to this subsection (b),
shall be applied by the Administrative Agent as specified in subsection (c) of
this Section 2.14.


 


(c)                                  In the event that, at any one
time, (i) any Lender shall be a Defaulting Lender, (ii) such
Defaulting Lender shall not owe a Defaulted Advance or a Defaulted Amount and (iii) the
Borrowers, any Agent or any other Lender shall be required to pay or distribute
any amount hereunder or under any other Loan Document to or for the account of
such Defaulting Lender, then the Borrowers or such Agent or such other Lender
shall pay such amount to the Administrative Agent to be held by the
Administrative Agent, to the fullest extent permitted by applicable law, in
escrow or the Administrative Agent shall, to the fullest extent permitted by
applicable law, hold in escrow such amount otherwise held by it.  Any funds held by the Administrative Agent in
escrow under this subsection (c) shall be deposited by the
Administrative Agent in an account with a bank (the “Escrow Bank”) selected by the
Administrative Agent, in the name and under the control of the Administrative
Agent, but subject to the provisions of this subsection (c).  The terms applicable to such account,
including the rate of interest payable with respect to the credit balance of
such account from time to time, shall be the Escrow Bank’s standard terms
applicable to escrow accounts maintained with it.  Any interest credited to such account from
time to time shall be held by the Administrative Agent in


 


43

















 


escrow under, and applied by the Administrative Agent from time to time
in accordance with the provisions of, this subsection (c).  The Administrative Agent shall, to the
fullest extent permitted by applicable law, apply all funds so held in escrow
from time to time to the extent necessary to make any Term Loan Advances
required to be made by such Defaulting Lender and to pay any amount payable by
such Defaulting Lender hereunder and under the other Loan Documents to the
Administrative Agent or any other Lender, as and when such Term Loan Advances
or amounts are required to be made or paid and, if the amount so held in escrow
shall at any time be insufficient to make and pay all such Term Loan Advances
and amounts required to be made or paid at such time, in the following order of
priority:


 


(i)                                     first, to the Agents for any amounts then
due and payable by such Defaulting Lender to them hereunder, in their
capacities as such, ratably in accordance with such respective amounts then due
and payable to the Agents;


 


(ii)                                  second,
to any other Lenders for any amount then due and payable by such
Defaulting Lender to such other Lenders hereunder, ratably in accordance with
such respective amounts then due and payable to such other Lenders; and


 


(iii)                               third, to the Borrowers for any Term Loan
Advance then required to be made by such Defaulting Lender pursuant to a Term
Loan Commitment of such Defaulting Lender.


 


In the event that any Lender that is a Defaulting
Lender shall, at any time, cease to be a Defaulting Lender, any funds held by
the Administrative Agent in escrow at such time with respect to such Lender
shall be distributed by the Administrative Agent to such Lender and applied by
such Lender to the Obligations owing to such Lender at such time under this
Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.


 


(d)                                 The rights and remedies against a
Defaulting Lender under this Section 2.14 are in addition to other rights
and remedies that the Borrowers may have against such Defaulting Lender with
respect to any Defaulted Advance and that any Agent or any Lender may have
against such Defaulting Lender with respect to any Defaulted Amount.


 


SECTION 2.15.      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 Term Loan Advance 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 Term
Loan Advances 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 hereto, payable to
the order of such Lender in a principal amount equal to the Term Loan
Commitment of such Lender.  All
references to Notes in the Loan Documents shall mean Notes, if any, to the
extent issued hereunder.


 


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(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 which accounts
(taken together) shall be recorded (i) the date and amount of each Term
Loan Borrowing made hereunder, the Type of Term Loan Advances comprising such Term
Loan Borrowing and, if appropriate, the Interest Period applicable thereto, (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 2.16.      Increase in Term Loan Borrowing.


 


(a)                                  Incremental Term Loan Borrowings.  Provided there exists no Default or Event of
Default, the Borrowers may from time to time, in accordance with this Section 2.16,
elect to increase the Term Loan Facility by a written notice to the
Administrative Agent (each, an “Incremental
Term Loan Borrowing Notice”), which Incremental Term Loan
Borrowing Notice shall be promptly notified by the Administrative Agent to the
Lenders, by a principal amount (when aggregated with all such Incremental Term
Loan Borrowings and all increases in excess of $100,000,000 of the Revolving
Credit Facility pursuant to Section 2.17 of the Revolving Credit Agreement
(or any similar provision in any successor agreement) not exceeding $250,000,000)
(each such increase, an “Incremental
Term Loan Borrowing”); provided that any
such increase shall be in a minimum amount of $25,000,000.  Such Incremental Term Loan Borrowing Notice shall
specify the time period (to be determined by the Borrowers upon consultation
with the Administrative Agent, but in no event to be less than ten Business
Days from the date of delivery of such Incremental Term Loan Borrowing Notice
to the Administrative Agent) within which each Lender is required to inform the
Borrowers and the Administrative Agent whether such Lender desires to
participate in such Incremental Term Loan Borrowing.  Such Incremental Term Loan Borrowing Notice
shall specify (i) the proposed date of such Incremental Term Loan
Borrowing, (ii) the Type of Term Loan Advances comprising such Incremental
Term Loan Borrowing, (iii) the aggregate amount of such Incremental Term
Loan Borrowing and (iv) in the case of an Incremental Term Loan Borrowing
consisting of Eurodollar Rate Advances, the initial Interest Period for such
Term Loan Advance.


 


(b)                                 Lender Elections to Increase.  Each Lender shall notify the Borrowers and
the Administrative Agent within the prescribed time period whether or not it desires
(in its sole discretion) to participate in such Incremental Term Loan Borrowing
and increase its Term Loan Advances in connection therewith and, if so, shall
specify the amount of


 


45

















 


the additional advances of such Incremental Term Loan Borrowing requested
to be allocated to it.  Any Lender not
responding within such time period shall be deemed to have declined to participate
in such Incremental Term Loan Borrowing.


 


(c)                                  Notification by Administrative
Agent; Additional Lenders.  The Administrative Agent shall notify the
Borrowers and each Lender of the Lenders’ responses to each Incremental Term
Loan Borrowing Notice.  To obtain participation
in an aggregate amount equal to the Incremental Term Loan Borrowing subject to
each Incremental Term Loan Borrowing Notice, and subject to the approval of the
Administrative Agent (which approval shall not be unreasonably withheld or
delayed), the Borrowers may obtain the agreement of additional Eligible
Assignees to become Lenders under this Agreement pursuant to a joinder
agreement in form and substance reasonably satisfactory to the Administrative
Agent.


 


(d)                                 Closing Date and Allocations.  If this facility is increased in accordance
with this Section, the Administrative Agent and the Borrowers shall determine
the closing date (the “Term Loan
Increase Closing Date”)
and the final allocation of the applicable Incremental Term Loan Borrowing.  The Administrative Agent shall promptly
notify the Borrowers and the Lenders of the final allocation of such increase
and the Term Loan Increase Closing Date.


 


(e)                                  Conditions to Incremental Term
Loan Borrowings.
 As
a condition precedent to each Incremental Term Loan Borrowing, the Borrowers
shall deliver to the Administrative Agent a certificate of each Loan Party
dated as of the Term Loan Increase Closing Date signed by a Responsible Officer
of such Loan Party (i) certifying and attaching the resolutions adopted by
such Loan Party approving or consenting to such Incremental Term Loan
Borrowing, and (ii) in the case of the Borrowers, certifying that, before
and after giving effect to such Incremental Term Loan Borrowing, (A) the
representations and warranties contained in Article IV and the other Loan
Documents are true and correct on and as of the relevant Term Loan Increase Closing
Date, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct
as of such earlier date, and except that for purposes of this Section 2.16,
the representations and warranties contained in subsection (i) of Section 4.01(g) shall
be deemed to refer to the most recent statements furnished pursuant to clause (b) of
Section 5.03, (B) no Default or Event of Default exists or would
exist after giving effect to such Incremental Term Loan Borrowing and the
application of any proceeds thereof and (C) all accrued fees and expenses
of the Agents and the Lenders participating in such Incremental Term Loan
Borrowing (including the reasonable accrued fees and expenses of counsel to the
Administrative Agent as set forth in an invoice to be provided to the Borrowers
from the Administrative Agent) have been paid. 
Each Lender participating in any Incremental Term Loan Borrowing shall,
before 11:00 A.M. (New York City time) on the Term Loan Increase Closing
Date relating to such Incremental Term Loan Borrowing, make available for the account
of its Applicable Lending Office to the Administrative Agent at the
Administrative Agent’s Account, in same day funds, such Lender’s ratable
portion of such Incremental Term Loan Borrowing.  After the Administrative Agent’s receipt of
such funds, the Administrative Agent will make such funds available to the
Borrowers by crediting the Borrowers’ Account.


 


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(f)                                    Terms of Incremental Term
Borrowings. All
advances made as part of any Incremental Term Loan Borrowing (i) shall
rank pari passu in right of payment and of
security with, and shall have the same guarantees as, the Senior Facility, (ii) shall
not mature earlier than the seventh anniversary of the Closing Date and shall
have a life to maturity that is no shorter than the life to maturity of the Senior
Facility, (iii) shall be treated substantially the same as the Senior Facility
(including with respect to mandatory and voluntary prepayments) and all other
terms and documentation in respect thereof, to the extent inconsistent with the
Senior Facility,
shall not be more onerous than the Senior Facility and shall be reasonably
satisfactory to the Administrative Agent, and (iii) in the event the applicable
margin on Term Loan Advance pursuant to any Incremental Term Loan Borrowing at any
time exceeds the Applicable Margin hereunder, the Applicable Margin hereunder shall
be automatically increased so that no such excess exists.


 


SECTION 2.17.      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 Term Loan Advances,
issuing Notices 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 2.17 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 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


 


47

















 


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 to Initial Term
Loan Borrowing.  Each of the
following conditions precedent shall be satisfied in order for the Lenders to
make Term Loan Advances pursuant to the Initial Term 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 2.15;


 


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


 


(iv)                              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;


 


(v)                                 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;


 


(vi)                              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


 


48

















 


presently subsisting under the laws of the State of the jurisdiction of
its organization;


 


(vii)                           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)(vi) 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)(v) 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 the absence of any proceeding for the dissolution or liquidation of such
Loan Party;


 


(viii)                        [Intentionally Omitted];


 


(ix)                                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;


 


(x)                                   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;


 


(xi)                                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;


 


(xii)                             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;


 


49

















 


(xiii)                          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;


 


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


 


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


 


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


 


(b)                                 The Collateral Agreement Agent
shall have received on or before the Closing Date:


 


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


 


(A)                              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 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 necessary in order to perfect and protect the 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);


 


(ii)                                  the Collateral Agency
Agreement duly executed by the parties thereto;


 


50

















 


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


 


(iv)                              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


 


(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; and


 


51
















 


(v)                                 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.


 


(c)                                  Prior to or coincidentally with
the Initial Term 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.


 


(d)                                 Prior to or coincidentally with
the Initial Term 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 Bridge 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 of $260,000,000,
(D) Debt under the Bridge Loan Facility and (E) Debt listed on Schedule 4.01(o)
or otherwise permitted under Section 5.02(b).


 


(e)                                  Prior to or simultaneously with
the Initial Term Loan Borrowing, the Borrowers shall have received $325,000,000
in gross cash proceeds from borrowings under the Bridge Loan Facility, which
proceeds (after deduction of related costs and expenses with respect thereto)
shall have been used to make payments in connection with the Transaction, and
the Revolving Credit Facility shall be effective.


 


(f)                                    (a) 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.


 


(g)                                 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.


 


(h)                                 The Borrowers shall have
delivered to the Administrative Agent the Notice of Borrowing for the Initial
Term Loan Borrowing.


 


52

















 


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


 


(j)                                     BMCA shall have used reasonable
efforts to receive ratings (of any level) for the Term Loan Facility from
S&P and Moody’s.


 


SECTION 3.02. Conditions
Precedent to the Merger Term Loan Borrowing. 
Each of the following conditions precedent shall be satisfied in order
for the Lenders to make the Term Loan Advances pursuant to the Merger Term Loan
Borrowing:


 


(i)                                     After giving
effect to the consummation of the Merger, all Debt for Borrowed Money of Elk
and its Subsidiaries shall have been paid and all commitments, security
interests and guarantees in connection therewith shall have been terminated and
released (or arrangements reasonably satisfactory to the Joint Lead Arrangers
shall have been made in respect thereof) except (x) their obligations under
this Agreement and the other Loan Documents, the Revolving Credit Facility, the
Bridge Loan Facility or the Senior Notes or, if the Elk Private Notes Condition
is satisfied, the Elk Private Notes and (y) any such Debt permitted to be
maintained or incurred pursuant to Section 5.02(b) and (z) any Debt set
forth on Schedule 3.02.


 


(ii)                                  Prior to or
simultaneously with the Merger Term Loan Borrowing or the Administrative Agent
is satisfied that the same will happen immediately following the Merger Term
Loan Borrowing, the Merger shall have been consummated (or will be concurrently
consummated) in accordance with the terms of the Merger Agreement and other
documentation therefor (including any proxy statement) after giving effect to
any waivers or amendments thereto that (a) are not materially adverse to
the interests of the Lenders or (b) to which the Joint Lead Arrangers have
given their consent, such consent not to be unreasonably withheld, conditioned
or delayed.


 


(iii)                               Prior to or
simultaneously with the Merger Term Loan Borrowing or the Administrative Agent
is satisfied that the same will happen immediately following the Merger, Elk
and each of its Subsidiaries shall become a party to the Guaranty and the
Security Agreement, and provide Uniform Commercial Code financing statements
for filing in all appropriate jurisdictions.


 


(iv)                              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 Merger shall have been paid to the extent due.


 


SECTION 3.03. Conditions
Precedent to Each Term Loan Borrowing. 
The obligation of each Lender to make a Term Loan Advance, shall be
subject to the further conditions precedent that on the date of such Term Loan
Borrowing (a) 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 such
Term Loan Borrowing stating that (and each of the giving of the applicable Notice
of Borrowing, and the acceptance by the applicable Borrower of the proceeds of the
Term Loan Advances pursuant to such Term Loan Borrowing shall constitute a representation
and warranty by such Borrower that both on the date of such notice and on the


 


53

















 


date of making the Term Loan Advances pursuant to such
Term 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 such Term 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 such Term Loan Borrowing, in
which case as of such specific date, provided,
that in the case of the Initial Term Loan Borrowing, 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, however, until the Merger, the representations and  warranties in the Loan Documents and the
Merger Agreement with respect to Elk and its Subsidiaries, for purposes of this
Section 3.03(a)(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 such Term 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 any Term Loan
Borrowings); and


 


(b)                                 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 Agreement 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 3.04. Determinations
Under Section 3.01 or 3.02.  For
purposes of determining compliance with the conditions specified in Section 3.01
or 3.02, 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 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.


 


54

















 


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 until the Merger
such representations and warranties with respect to Elk and its Subsidiaries
shall be limited as set forth in Section 3.03(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, as of
the date hereof, showing (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 Bridge 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 the Liens
created under the Loan Documents and to secure Debt under the Revolving Credit
Facility, the Existing Indentures, the Bridge 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


 


55

















 


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 plus the loan value of the Company Stock determined as
provided in Regulation U securing the Term Loan Advances made by it is not less
than the amount of such Term Loan Advances.


 


(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 Section 3.01(b)(i) and Section 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.


 


56

















 


(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 Term Loan Advance 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 Term Loan Advances, 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


 


57

















 


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


 


58

















 


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


 


59

















 


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.


 


60

















 


(vi)                              Based on current
information and circumstances, neither BMCA nor any of its Subsidiaries expect
any of the Term Loan Borrowings or Term Loan Advances 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,


 


61

















 


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 Term Loan
Advance or any other Obligation of any Loan Party under any Loan Document shall
remain unpaid, or any Lender shall have any Term 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


 


62

















 


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 Agreement 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 Agreement Agent therein and
such Loan Party shall execute all documents and


 


63

















 


take such actions in 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 Agreement 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 Agreement 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 Agreement 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


 


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Agent a guaranty or guaranty supplement and a security 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 Administrative 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 Agreement Agent (or in any representatives of the Collateral
Agreement 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,


 


65

















 


(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 Collateral
Agreement 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 Agreement 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


 


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(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)                               If, as of the Closing
Date, the Collateral Agreement Agent has not received any of the items
described in Section 3.01(b), BMCA shall, within sixty (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 Agreement 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 Agreement Agent. 
Further, BMCA shall, within such 60 day period, (A) deliver to
the Collateral Agreement Agent duly executed amendments to the Mortgages
requested by the Collateral Agreement Agent and take such other actions and
execute such other documents as reasonably requested by the Collateral
Agreement Agent that relate to title and survey matters, (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 Agreement Agent and the issuer of the Mortgage Policies in a manner
reasonably satisfactory to the Collateral Agreement 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


 


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zoning endorsement, a zoning compliance letter from the applicable
municipality, a zoning opinion or a PZR report.


 


(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 securities
accounts and deposit 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 securities accounts and deposit 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 Agreement 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).


 


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(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
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.


 


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(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 specifically identifies any of the Term Loan Borrowings
or Term Loan Advances 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).


 


(s)                                  Sale
of Shares.  In the event the Merger
does not occur prior to the Term Loan Commitment Termination Date, BMCA shall
sell, or cause to be sold, the shares of Company Stock acquired in the Tender
Offer within six months after the Term Loan Commitment Termination Date, and
apply the net proceeds thereof immediately upon their receipt to repay the
outstanding Term Loan Advances.


 


SECTION 5.02. Negative
Covenants.  So long as any Term Loan
Advance or any other Obligation of any Loan Party under any Loan Document shall
remain unpaid, or any Lender shall have any Term 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 Bridge Loan Facility, 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


 


70

















 


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 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


 


71

















 


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.


 


(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 Agreement
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 delivered to the Collateral
Agreement Agent pursuant to the terms of the Security Agreement; 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 Bridge 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


 


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incurred pursuant to
this Section 5.02(b)(iii)(B) shall not have scheduled amortization
payments prior to the seventh 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 seventh 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,


 


(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 Bridge Loan Facility, the Revolving Credit Facility
or the Senior Notes, 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, 2014 that is more
onerous than the remaining scheduled amortization prior to December 31,
2014 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 3.02 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


 


73

















 


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,
2014 that is more onerous than the remaining scheduled amortization prior to December 31,
2014 if any, applicable to the Debt being extended, refunded or refinanced 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 (z) there are no scheduled
amortization payments of principal in respect of such Debt prior to the seventh
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 seventh 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,


 


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(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 securing such
Debt, which Liens shall be ranked junior to the Liens securing this Term Loan
Facility), provided, however, that
there are no scheduled amortization payments of principal in respect of such
Debt prior to the seventh 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 seventh 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, provide, 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;


 


75

















 


(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.


 


(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 (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;


 


76

















 


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 Term Loan Advances pursuant
to, to the extent and in the amount and order of priority 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 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 giving 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;


 


77

















 


(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 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


 


78

















 


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:


 


(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


 


79

















 


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.


 


(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).


 


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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.


 


(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 Term Loan Advances in accordance with the terms of this
Agreement, (iii) the repayment of Debt under the Bridge Loan with the
proceeds of the issuance of the Senior Notes, (iv) after the consummation
of the Merger, prepayment of any Debt of Elk or any of its Subsidiaries, (v) prepayment
of the respective Debt with proceeds of a refinancing of such Debt permitted
under Section 5.02(b), (vi) regularly scheduled or required
repayments or redemptions of Surviving Debt, (vii) mandatory prepayment of
Debt under the Bridge Loan Facility in accordance with the terms thereof, (viii) prepayment
of the respective Debt with proceeds of a refinancing of such Debt permitted
under Section 5.02(b) and (ix) 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


 


81

















 


Secured Parties or (ii) in
connection with (A) any Surviving Debt, (B) the Revolving Credit
Facility, (C) the Senior Notes Indenture, (D) the Bridge 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.


 


(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
Bridge 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.


 


82

















 


(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 Term Loan
Advance or any other Obligation of any Loan Party under any Loan Document shall
remain unpaid or any Lender shall have any Term 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 on which such reports
containing such financial statements or other materials are posted on the SEC’s   website on the internet at “www.sec.gov”; 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 10Q 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


 


83

















 


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 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.


 


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(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, 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 Term Loan
Advance or any other Obligation of any Loan Party under any Loan Document shall
remain unpaid, or any Lender shall have any Term Loan Commitment hereunder, BMCA
shall


 


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(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

  	
   

  
	
  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:


 


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(a)                                  (i) any
Borrower shall fail to pay any principal of any Term Loan Advance when the same
shall become due and payable or (ii) any Borrower shall fail to pay any
interest on any Term Loan Advance, 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 2.13, 5.01(e), (f), (i) or (j), 5.02, 5.03(a), (b),
(c), (d) or (i) or 5.04; or


 


(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


 


87

















 


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 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 (it being understood that during
such 20 consecutive day period the Lenders shall not be required to make any Term
Loan Advances hereunder), 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


 


88

















 


to any Liens permitted by Section 5.02
on and security interest in the Collateral purported to be covered thereby; or


 


(l)                                     a Change of
Control shall occur; or


 


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


 


(o)                                 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(m), (n), and (o)) $10,000,000
in the aggregate; or


 


(p)                                 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


 


(q)                                 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 Term Loan Commitments of each Lender and the obligation of each Lender
to make Term Loan Advances 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 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 Notes, all such interest and all such
amounts shall become and


 


89

















 


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 Term Loan Commitments
of each Lender and the obligation of each Lender to make Term Loan Advances shall
automatically be terminated and (y) 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 the
Administrative 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 as are
delegated the Administrative 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), the
Administrative Agent shall not 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 the Administrative Agent shall not be
required to take any action that exposes the Administrative Agent to personal
liability or that is contrary to this Agreement or applicable law.  The Administrative Agent agrees to give to
each Lender prompt notice of each notice given to it by any Borrower pursuant
to the terms of this Agreement.


 


SECTION 7.02.      Agents’ Reliance, Etc.  Neither the Administrative Agent nor any of its
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, the Administrative Agent:  (a) may treat the payee of any Note as
the holder thereof until, 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, 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


 


90

















 


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.      DBNY and Affiliates.  With respect to its Term Loan Commitments,
the Term Loan Advances made by it and the Notes issued to it, DBNY 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 DBNY in its individual
capacity as such.  DBNY 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 DBNY 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 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 ratable share (determined as provided below) 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)                                 For purposes of this Section 7.05,
the Lenders’ respective ratable shares of any amount shall be determined, at
any time, according to the sum of (i) the aggregate principal amount of
the Term Loan Advances outstanding at such time and owing to the respective Lenders,
and (ii) their respective Unused Term Loan Commitments at such time.  The


 


91

















 


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.  The Administrative 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.  Upon any such resignation or removal, the Required
Lenders shall have the right to appoint a successor Administrative Agent.  If no successor Administrative Agent shall
have been so appointed by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent’s giving of
notice of resignation or the Required Lenders’ removal of the retiring Administrative
Agent, then the retiring Administrative Agent may, on behalf of the Lenders,
appoint a successor Administrative Agent, which shall be a commercial bank
organized under the laws of the United States or of any State thereof or a
foreign bank with a branch permitted to do business in the United States and
operating in any State thereof, and in each case having a combined capital and
surplus of at least $250,000,000.  Upon
the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
succeed to and become vested with all the rights, powers, discretion,
privileges and duties of the retiring Administrative Agent, and the retiring Administrative
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 Administrative Agent’s
resignation or removal under this Section 7.06, no successor Administrative
Agent shall have been appointed and shall have accepted such appointment, then
on such 45th day (a) the retiring Administrative Agent’s
resignation or removal shall become effective, (b) the retiring Administrative
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 Administrative Agent under the
Loan Documents until such time, if any, as the Required Lenders appoint a
successor Administrative Agent as provided above.  After any retiring Administrative Agent’s
resignation or removal hereunder as Administrative 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 Administrative
Agent under this Agreement.


 


SECTION 7.07.      The Joint Lead Arrangers, the Syndication
Agent and the Documentation Agent.  It is
understood and agreed by all parties hereto that neither the Joint Lead
Arrangers, nor the Syndication Agent, nor the Documentation Agent shall 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.


 


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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), (v), (vi) and (vii) 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 (other than any Lender that is, at such time, a Defaulting Lender),
do any of the following at any time:  (i) waive
any of the conditions specified in Section 3.01 and 3.03 (in the case of
the Initial Term Loan Borrowing), (ii) change the number of Lenders or the
percentage of (x) the Term Loan Commitments or (y) the aggregate
unpaid principal amount of the Term Loan Advances 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 2.12 or this Section 8.01,
(vi) increase the Term Loan Commitments of the Lenders  (except in accordance with the
provisions of Section 2.16), (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.


 


(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 any
Borrower referred to below or (ii) such Non-Consenting Lender consenting
to such amendment, modification or waiver within those five days)  such Borrower may, upon five Business Days’
prior written notice to such Lender and the Administrative Agent, elect to
cause such Lender to assign its Term Loan Advances and Term Loan Commitments in
full to one or more Persons selected by such Borrower 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 Term Loan Advances
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 2.09,


 


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2.11, 2.14 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
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 BMCA may, in its
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


 


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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 telephonic Notices
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, each Borrower
hereby waives the right to dispute the Administrative Agent’s record of the
terms of such telephonic notice of a Term Loan Borrowing or prepayment of Term
Loan Borrowings (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, jointly and
severally, agree 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 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).


 


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(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 Term Loan Advances, 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 Term Loan Advances, the Transaction Documents or any of the
transactions contemplated by the Transaction Documents.


 


(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 of,
or Conversion of, any Eurodollar Rate Advance is made by the Borrowers to or
for the account of a Lender other than on the last day of the Interest Period
for such Term Loan Advance, as a result of a payment or Conversion pursuant to Section 2.05,
2.08(b)(i) or 2.09(d), acceleration of the maturity of the Notes pursuant
to Section 6.01 or for any other reason, or if the Borrowers fail to make
any payment or prepayment of an Term Loan Advance for which a notice of
prepayment has been given or that


 


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is otherwise required to be made, whether pursuant to Section 2.03,
2.05 or 6.01 or otherwise, the Borrowers, jointly and severally, agree to, 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 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 Conversion 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 Term Loan Advance.


 


(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 2.09 and 2.11 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 Notes 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 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 its
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 Term


 


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Loan Commitment, the Term Loan Advances 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 Term Loan Commitments
or Term Loan Advances 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 2.09, 2.11 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).


 


(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


 


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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 Term Loan Commitment
of, and principal amount of the Term Loan Advances 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 Term Loan Advances
(including the Notes evidencing such Term Loan Advances) are registered
obligations and the right, title, and interest of the Lenders and their
assignees in and to such Term Loan Advances 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 Term Loan Advance, 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 Term Loan Advances
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).  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
Term Loan Commitment assumed by it under each Facility pursuant to such
Assignment and Acceptance and, if any assigning Lender has retained a Term Loan
Commitment hereunder under such Facility and has


 


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requested a replacement Note, an amended and restated Note to the order
of such assigning Lender in an amount equal to the Term Loan Commitment 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 hereto.


 


(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 Term Loan Commitments, the Term
Loan Advances 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 Term 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 Term Loan Advances owing to it and the Note or Notes held by it)
in favor of any 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 Term Loan Advances
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.


 


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(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 Term Loan Advance 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 Term Loan Advance, and (ii) if an SPC elects not to exercise such
option or otherwise fails to make all or any part of such Term Loan Advance,
the Granting Lender shall be obligated to make such Term Loan Advance pursuant
to the terms hereof.  The making of an
Advance by an SPC hereunder shall utilize the Term Loan Commitment of the
Granting Lender to the same extent, and as if, such Term Loan Advance 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 2.09 and
2.11 (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 Term Loan Advance
to the Granting Lender and (ii) disclose on a confidential basis any
non-public information relating to its funding of Term Loan Advance 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 Term Loan Advances
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 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


 


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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 Sections 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 Agreement 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 Agreement 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 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.


 


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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 Term Loan Advances 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 NEW YORK

  BRANCH,

  
	
   

  	
  as Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Marguerite Sutton

  	
   

  
	
   

  	
   

  	
  Name: Marguerite Sutton

  
	
   

  	
   

  	
  Title: Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Carin Keegan

  	
   

  
	
   

  	
   

  	
  Name: Carin Keegan

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DEUTSCHE BANK
  SECURITIES INC.,

  
	
   

  	
  as a Joint Lead Arranger and a Joint Book Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Stephen R. Lapidus

  	
   

  
	
   

  	
   

  	
  Name: Stephen R.
  Lapidus

  
	
   

  	
   

  	
  Title: Director

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Mark E. Funk

  	
   

  
	
   

  	
   

  	
  Name: Mark E. Funk

  
	
   

  	
   

  	
  Title: Managing
  Director

  



 


104

















 


	
   

  	
  BEAR STEARNS &
  CO. INC.,

  
	
   

  	
  as a Joint Lead Arranger, a Joint Book Manager and
  Syndication Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Richard Bram Smith

  	
   

  
	
   

  	
   

  	
  Name: Richard Bram
  Smith

  
	
   

  	
   

  	
  Title: Senior Manaing
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  J.P. MORGAN SECURITIES INC.,

  
	
   

  	
  as a Joint Lead Arranger,
  a Joint Book Manager and Documentation Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ David Lynch

  	
   

  
	
   

  	
   

  	
  Name: David Lynch

  
	
   

  	
   

  	
  Title: Executive
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Initial
  Lenders

  
	
   

  	
   

  
	
   

  	
  DEUTSCHE BANK AG NEW YORK

  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

  



 


105