INTERESTS, OBLIGATIONS OR SECURITIES TO ITS
STOCKHOLDERS, PARTNERS OR MEMBERS (OR THE EQUIVALENT PERSONS THEREOF) AS SUCH OR
ISSUE OR SELL ANY EQUITY INTERESTS, OR PERMIT ANY OF ITS SUBSIDIARIES TO DO ANY
OF THE FOREGOING, OR PERMIT ANY OF ITS SUBSIDIARIES TO PURCHASE, REDEEM, RETIRE,
DEFEASE OR OTHERWISE ACQUIRE FOR VALUE ANY EQUITY INTERESTS IN BMCA OR TO ISSUE
OR SELL ANY EQUITY INTERESTS THEREIN, EXCEPT THAT, SO LONG AS NO EVENT OF
DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING AT THE TIME OF ANY ACTION
DESCRIBED BELOW OR WOULD RESULT THEREFROM:
(I)
BMCA MAY DECLARE AND PAY DIVIDENDS AND DISTRIBUTIONS PAYABLE ONLY
IN COMMON STOCK OF BMCA;
(II)
ANY SUBSIDIARY OF BMCA MAY (A) DECLARE AND PAY CASH DIVIDENDS TO
BMCA, (B) DECLARE AND PAY CASH DIVIDENDS TO ANY OTHER WHOLLY OWNED SUBSIDIARY OF
BMCA OF WHICH IT IS A SUBSIDIARY, AND (C) ACCEPT CAPITAL CONTRIBUTIONS FROM ITS
PARENT TO THE EXTENT PERMITTED UNDER SECTION 5.02(F);
89
(III)
SO LONG AS (A) BOTH AT THE TIME OF SUCH PAYMENT, DIVIDEND OR
OTHER DISTRIBUTION AND AFTER GIVING PRO FORMA EFFECT THERETO, NO DEFAULT OR
EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING, AND (B) AFTER GIVING EFFECT TO
SUCH PAYMENT, DIVIDEND OR OTHER DISTRIBUTION, THE AVAILABLE LIQUIDITY (AS
CERTIFIED TO THE ADMINISTRATIVE AGENT BY A RESPONSIBLE FINANCIAL OFFICER OF
BMCA) SHALL EQUAL OR EXCEED (I) SO LONG AS, SUBSTANTIALLY SIMULTANEOUSLY WITH
SUCH PAYMENT, DIVIDEND OR OTHER DISTRIBUTION, A LOAN OR CONTRIBUTION IN AN EQUAL
AMOUNT IS MADE TO BMCA, $25,000,000 OR (II) OTHERWISE, THE SPECIFIED LIQUIDITY
AMOUNT (TO BE DETERMINED ON THE BASIS OF THE REQUIRED FINANCIAL INFORMATION MOST
RECENTLY DELIVERED TO THE ADMINISTRATIVE AGENT AND THE LENDER PARTIES AS THOUGH
SUCH PAYMENT, DIVIDEND OR OTHER DISTRIBUTION HAD BEEN MADE AS OF THE FIRST DAY
OF THE FISCAL PERIOD COVERED THEREBY), BMCA SHALL BE PERMITTED TO MAKE PAYMENTS,
DIVIDENDS OR OTHER DISTRIBUTIONS TO G-I HOLDINGS AND BMCA HOLDINGS CORPORATION
IN ANY CALENDAR YEAR, AND
(IV)
INVESTMENTS CONSISTING OF THE INITIAL G-I HOLDINGS LETTERS OF
CREDIT, OR ANY SUBSTITUTION OF SUCH INITIAL G-I HOLDINGS LETTER OF CREDIT
(SIMULTANEOUSLY WITH THE CANCELLATION, EXPIRATION OR OTHER TERMINATION OF SUCH
INITIAL G-I HOLDINGS LETTER OF CREDIT) FOR A CONTRIBUTION OF CASH OR THE POSTING
OF A BOND OR SIMILAR INSTRUMENT BY ANY LOAN PARTY SOLELY TO THE EXTENT THAT
CASH, BOND OR SIMILAR INSTRUMENT IS USED TO SECURE PAYMENT FOR THE SAME
OBLIGATION (AND FOR THE BENEFIT OF THE SAME BENEFICIARY) AS SUCH INITIAL G-I
HOLDINGS LETTER OF CREDIT SO SUBSTITUTED.
(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)