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