THE BENEFIT OF THE LENDERS,
UNDER THE COLLATERAL DOCUMENTS OR THE RIGHTS OR REMEDIES OF THE AGENTS OR THE
LENDERS UNDER ANY OF THE LOAN DOCUMENTS HAS BEEN TAKEN IN OR IN CONNECTION WITH
THE G-I HOLDINGS BANKRUPTCY PROCEEDINGS (IT BEING UNDERSTOOD THAT THE FILINGS ON
JUNE 30, 2003 OF THE NOTICE OF APPEAL AND THE BRIEF IN SUPPORT THEREOF BY THE
OFFICIAL COMMITTEE OF ASBESTOS CLAIMANTS IN THE G-I HOLDINGS BANKRUPTCY
PROCEEDINGS SHALL NOT, SOLELY BY THEMSELVES, BE DEEMED TO BE ADVERSE ACTIONS FOR
PURPOSES OF THIS CLAUSE (B)) OR (II) IF ANY SUCH ACTION HAS BEEN TAKEN, SUCH
ACTION HAS BEEN RESOLVED IN A MANNER REASONABLY SATISFACTORY TO THE
ADMINISTRATIVE AGENT.
SECTION 3.02.
Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of
47
the Administrative Agent responsible for the transactions contemplated by the
Loan Documents shall have received notice from such Lender prior to the Closing
Date specifying its objection thereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01.
Representations and Warranties of the Borrowers. Each
Borrower represents and warrants that the following statements are true and
correct, provided, however, that such representations and warranties with
respect to Elk and its Subsidiaries shall be limited as set forth in Section
3.01(i):
(A)
CORPORATE EXISTENCE. EACH LOAN PARTY AND EACH OF ITS SUBSIDIARIES
(I) IS A CORPORATION OR LIMITED LIABILITY COMPANY DULY ORGANIZED, VALIDLY
EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE JURISDICTION OF ITS
ORGANIZATION, (II) IS DULY QUALIFIED AND IN GOOD STANDING AS A FOREIGN
CORPORATION OR LIMITED LIABILITY COMPANY IN EACH OTHER JURISDICTION IN WHICH IT
OWNS OR LEASES PROPERTY OR IN WHICH THE CONDUCT OF ITS BUSINESS REQUIRES IT TO
SO QUALIFY OR BE LICENSED EXCEPT WHERE THE FAILURE TO SO QUALIFY OR BE LICENSED
COULD NOT BE REASONABLY EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT AND (III) HAS
ALL REQUISITE CORPORATE OR LIMITED LIABILITY COMPANY POWER AND AUTHORITY
(INCLUDING ALL GOVERNMENTAL AUTHORIZATIONS) TO OWN OR LEASE AND OPERATE ITS
PROPERTIES AND TO CARRY ON ITS BUSINESS AS NOW CONDUCTED AND AS PROPOSED TO BE
CONDUCTED. ALL OF THE OUTSTANDING EQUITY INTERESTS IN BMCA HAVE BEEN VALIDLY
ISSUED, ARE FULLY PAID AND NON-ASSESSABLE AND ARE OWNED BY BMCA HOLDINGS IN THE
AMOUNTS SPECIFIED ON SCHEDULE 4.01(A) HERETO FREE AND CLEAR OF ALL LIENS.
(B)
SUBSIDIARIES. SET FORTH ON SCHEDULE 4.01(B) HERETO IS A COMPLETE
AND ACCURATE LIST OF ALL SUBSIDIARIES OF EACH LOAN PARTY, SHOWING AS OF THE DATE
HEREOF (AS TO EACH SUCH SUBSIDIARY) THE JURISDICTION OF ITS ORGANIZATION, THE
NUMBER OF SHARES OF EACH CLASS OF ITS AUTHORIZED EQUITY INTERESTS, AND THE
NUMBER OUTSTANDING ON THE DATE HEREOF AND THE PERCENTAGE OF EACH SUCH CLASS OF
ITS EQUITY INTERESTS OWNED (DIRECTLY OR